People v. Walker , 21 Barb. 630 ( 1856 )

By the Court, Gould, J.

The three points presented for decision in this case are, as claimed by the defense, 1st. The state is not a proper party plaintiff, nor can the people sue for- this claim, if it exist. 2d. There has not been for the period claimed as the one for which the last payment is due, any demand by the comptroller, or notice given, or any designation that the payment sued for was required to be made. 3d. The payments in each year, were for the current not the past year ;• and the one-half of one per cent for the year 1849, has been actually paid, by the second payment of 1848, made December 30th, 1848.

On the first point, the court are of opinion that by the whole act providing for the creation of a safety fund, and by all the subsequent provisions, in different statutes, relating to it, the state has taken on itself by and through its public officers, such duties, and has such powers, as make it, in law, trustee of the whole fund, for the benefit of all who may have claims on it. By the law of 1829, (the original safety fund act) section 2, the payments to create this fund, were to be made “ to the treasurer of this state." By section 5 (same act) “ the comptroller and treasurer of this state were to- keep the accounts of the fund;” and the comptroller to report to the legislature the condition thereof.” And though by section 6, the fund shall be the property of the corporations” paying it in, this section gives to the comptroller the power to invest it, as a trustee would y and the subsequent sections qualify this property very essentially. By section 7, the income (when the fund remains full the income is not required, &c.) is to be paid to such corporations, “ by the comptroller.” By section 8, "whenever the fund is impaired, the comptroller is to direct what sum, (within the prescribed limit) shall be paid “ to the treasurer of this state," till the fund be reimbursed.

Whenever the creditors of any insolvent bank shall be entitled to receive payment from the fund, section 10 makes it the duty of the comptroller to draw on the treasurer for the requisite sum, not exceeding the bank fund, (i. e. the trust fund.) And by section 12, the moneys so paid, “ out of the treasury" shall be a charge upon the fund. By section 13 (the fund remaining good,) any corporation, on its charter’s ceasing, is to receive its share, from the comptroller. The comptroller and treasurer continued to be the officers authorized to receive and pay all moneys of this fund, until by the law of 1845, (Chap. 114, § 2,) the comptroller was authorized to issue state stoek “ sufficient to discharge all the debts of the safety fund banks which have suspended payment ■.*” an amount which it is notorious, will never be more than reimbursed by the payments to be made, as long as the safety fund act remains applicable to any bank that was ever under it. And this state stock has been issued.

If these acts—this assuming of the liability to collect and pay, this being the only power to collect, invest and pay—do not constitute the state the proper, and the only proper, party plaintiff, it is difficult to say what would.

II. As to the demand, or notice, or designation of amount to be paid. 1st. The fund (as sufficiently declared by the law of 1841, chap. -292,) had become, in the words @f the 8th section of the original -act (of 1829,) “ reduced below the sum provided in the fourth section of this act,” and so under that 8th section without the law of either 1841 or 1842, this bank became liable to pay to the treasurer, “on or before the first day of January in every year thereafter, such sum to be designated by the comptroller, not exceeding a sum equal to one half of one per cent on its capital stock •; which last mentioned annual payment shall continue to be made until the aforesaid fund shall be reimbursed, &c. (See the residue of that section.)

Under the law of 1841, {Laws of 1841, p. 280,) which is really but a substantial repetition (in this respect) of that of 1829, the comptroller gave the notice of, required the payment of, or “ designated,” (whichever the defendants please,) the sum of “ one half of one per cent of its capital stock,” as the sum which the Bank of Utica was to pay, “ on or before the first day of January next, pursuant to the provisions of the act” &c., (referring to said act of 1841, which refers to the act of 1829, and, as to the substance of this provision, is identical with it,) which sum, once “ designated” was to continue to be paid annually “ until the aforesaid fund shall be reimbursed,” &c., by both acts, of-1829 and of 1841. And under either act no annual designation was required. And the law of 1842, (Laws of 1842, p. 306, § 1,) considering this designation fully made under the law of 1829, merely provides (on this point) that such annual payments “ shall continue until” &c., as in the law of 1829. The objection then to the law of 1841,' that it was not passed by the two-thirds vote required, falls ; because, it is really but a declaratory act, stating what should establish, the fact that the fund had become reduced; and then merely repeating (in its 5th section) the provision of the former act • and the act does not alter or impair” the rights, &c. of a corporation, and needs no two-thirds vote. And the same may be said of the law of 1842, which finding it declared by law, that the fund had become reduced, does not substantially vary the provisions of the law of 1829.

2d. But the conduct of the Bank of Utica, in making eight successive payments, continuing down to December, 1848, .puts a practical construction on the law. Had that bank not paid, it is highly probable it might have heard from the comptroller, in the way of “ designation ” or demand. This point is but a mere afterthought.

III. But it is claimed that these payments were, in each year, made in advance, if before January 1st, or if after January 1st, then for the current year ; i. e. on the 1st day of January, 1848, or at any later day in 1848, the payment was for the year ending December 31st, 1848. There are no proofs in the case, by which to pass on this, as a matter of fact, as there probably might have been. But “ on or before the first day of January in each year,” must mean that the payment may be made any indefinite time, no matter how long before, January 1st. Suppose it made the first of December, would any one suppose, then, that it was made for the year to commence 30 days thereafter, for the next year ? And does not the use of the words, “ on or before ” a particular day, necessarily imply that the ground, or cause of payment, the consideration or indebtedness, "was, prior to the limit, complete 1 Again; the second section of the act of 1829 says, such corporation shall, on or before the first day of January in every year, pay to the treasurer of this state a sum equal to one half of one per cent on the capital stock paid in, &c. And at that rate for the time such corporation shall have been in operation, if less than one year

[Albany General Term, March 3, 1856.

This surely ends all doubt on this point.' A bank going into operation the first of July, 1835, pays, “on or before the first day of January, 1836,” one quarter of one per cent, for the time (of the past year) that it has been in operation. If the bank fail to pay, on or before January 1st, but pays February 1st, it .is still for the past year. It is not deemed necessary to go into a discussion of the point taken, that the forfeiture of the charter, for non-payment, is an exclusive remedy. If the last point be correctly decided, the “ exclusive remedy” would always, for the last year (or part of a year) of every bank’s existence, be of difficult application ; so difficult, that no such absurdity will be here held to be law. And as to the non-existence of the Bank of Utica on the first day of January, 1850, if the payment were due for the year ending December 31st, 1849, the bank, or its trustees, with its funds, will probably be where they can be found, to pay the amount of the recovery, as they have been found to defend the suit.

A new trial must be ordered.

Harris, Watson and Gould, Justices.]