DocketNumber: No. 17733
Citation Numbers: 264 P. 816, 129 Okla. 273
Judges: RILEY, J.
Filed Date: 2/1/1927
Status: Precedential
Modified Date: 1/13/2023
I concurred in the original opinion filed herein on February 1, 1927, but upon consideration of the petition for rehearing and re-examination of the authorities cited by defendant in error I am of the opinion that the rehearing should be granted and this cause affirmed upon authority of the cases hereinafter cited.
The question involved in this case is whether or not the assets of the depositors' guaranty fund in possession of the Bank Commissioner are subject to ad valorem taxes. In determining this question, it is necessary to decide whether or not such assets so held by the Bank Commissioner are a state fund. Under our law, if they are a state fund and, as such, property of the state, they are not subject to taxation, and the opinion herein so holds. The opinion, however, holds that such funds belong to the various banks, and the Bank Commissioner merely holds same as a trustee, and the same are therefore not a state fund and are subject to taxation. In our judgment, this holding is in conflict with former holdings of this court as follows:
In State v. Cockrell,
"The Examiner and Inspector shall examine the books and accounts of state officers whose duties it is to collect or disburse funds of the state or under its management at least once each year."
This case squarely presented the question as to whether or not the depositors' guaranty fund was "funds of the state," and in passing on this question, this court used the following language:
"That the depositors' guaranty fund, and the funds of a failed bank in the hands of a Bank Commissioner for the purpose of reimbursing the depositors' guaranty fund, is as much a fund of the state as the common school fund is also true. The depositors' guaranty fund act was sustained by this court on the theory of the reserved power of the state to alter and amend charters of state banking corporations for the public welfare. See Noble State Bank v. Haskell,
This case was decided in 1910, and has been consistently cited and followed since that time.
The next case wherein this question was involved was Lovett v. Lankford,
"The State Bank Commissioner or the Banking Department is a part of the Executive Department of the state and is entrusted with the receipt, custody, and disbursement of funds of failed banks."
Adding:
"If defendants in error may be considered executive officers of the state, and in performing their duties in administering the law under consideration do so as such officers, and the property intrusted to their control and management by the law is property owned by the state or property in which the state has a substantial interest, then it can hardly be questioned that this suit, in effect, is against the state."
This case was decided in 1914.
The next case in which this question was raised was Lankford v. Schroeder,
"The State Banking Board and the State Bank Commissioner constitute a part of the executive department of the state government, and cannot be sued without the state's consent. * * *
"The state guaranty fund is the property of the state as much as ad valorem taxes collected for the state's maintenance, and the state has a first lien on assets of a failed bank in the hands of the State Bank Commissioner to secure reimbursement of the guaranty fund for sums paid therefrom to the depositors of such bank, and no suit can be maintained by a creditor of the bank against the Bank Commissioner for the application *Page 278 of such assets or guaranty fund to the payment of his claim."
This question also found its way into the Supreme Court of the United States in the case of Lankford v. Platt Iron Works,
"In State v. Cockrell, 112 Pac. Rep. 1000, the Supreme Court of Oklahoma had occasion to define the duties of State Examiner and Inspector. It decided that the office was constituted by the Constitution of the state and was independent of the control of the Governor, and passing upon the authority of the Examiner and Inspector over the accounts of the Bank Commissioner, it decided that 'the funds and assets' of an insolvent bank are 'under the management of the state,' and 'that the depositors' guaranty fund and the funds of a failed bank in the hands of a Bank Commissioner for the purpose of reimbursing the depositors' guaranty fund is as much a fund of the state as the common school fund.' "
In State Banking Board v. Oklahoma Bankers' Trust Co.,
Numerous other cases have been called to our attention which hold the statute of limitations does not run against the state in actions on promissory notes held by the State Bank Commissioner as a part of the assets of an insolvent bank. This on the theory that the same is a state fund and the statute of limitations does not run against the state. Following these authorities, I am forced to the conclusion that this property, having been purchased by the Bank Commissioner at foreclosure sale, under the admitted facts herein, became a part of the depositors' guaranty fund of the state of Oklahoma and, as such, property of the state, and therefore exempt from taxation under the provisions of section 6 of art. 10 of the Constitution, and the judgment of the district court of Logan county in so holding should be affirmed.
I am authorized to state that Justice PHELPS, who also concurred in the original opinion herein, upon reconsideration, dissents therefrom, and concurs in the views herein expressed.