#### SHROPSHIRE et al. v. SHAW, Banking Com’r, et al.

No. 1526—5920.

Commission -of Appeals of Texas, Section A.

May 16, 1932.

J. W. Ragsdale, of Victoria, J. E. Shropshire, of Brady,-and Linebaugh & Guittard. of Victoria, for plaintiffs in error.

Crain & Hartman and T. A. Graves, all of Cuero, and Proctor, Vandenberge, Crain & Vandenberge, of Victoria, for intervener De Witt County.

Green & Green, of Cuero, for intervener City of Yoakum.

John W. Goodwin, of Austin, and Spencer. Rogers, Lewis & Slatton, of San Antonio, for appellee Shaw.

HARVEY, J.

The Court of Civil Appeals for the First District has submitted a certificate containing two certified questions. In view of the conclusion we have reached with respect to the first question, the second question becomes immaterial. The first certified question reads as follows: “When an incorporated State bank is dissolved by the expiration of the time limit of its charter, has the State Banking Commissioner, as a statutory receiver, authority to take charge of such bank for liquidation purposes, or is such authority conferred by Articles 1388 and 1389, Revised Civil Statutes of 1925, alone upon the officers named in Article 1388, in the absence of an appointment of a receiver by some court of competent jurisdiction, provided for by Article 1389?”

Addressing ourselves to the question contained in the first clause of the above-certified question, relating to the authority of the state banking commissioner to take charge of a dissolved bank for liquidation purposes, the first thing that engages pur attention is section 16 of article 16 of the State Constitution. The first part of said section reads as follows: “The legislature'shall, by general laws, authorize the incorporation of corporate bodies with banking and discounting privileges, and shall provide for a system of state supervision, regulation and control of such bodies w-hicli will adequately protect and secure the depositors and creditors thereof.”

The manifest purpose of the last clause of the above paragraph of the Constitution is to require that the affairs of all state banking corporations, generally, be under the supervision, regulation, and control of a state agency. This requirement is primarily, if not altogether, for the benefit of depositors and creditors of those institutions. In pursuance of this constitutional provision, the Legislature, in title 16 of the Revised Statutes (article 342 et seq.), has set up an elabo-

*709rate system of supervision, regulation, and control of the affairs of state hanking corporations ; which statutes, considered, as a whole, in the light of said constitutional provision, reasonably imply a purpose on the part of the Legislature to invest the banking commissioner with authority to take over for settlement, as there prescribed, the affairs of a banking corporation whose charter expires as well as of those which are closed on account of insolvency. By article 369 the banking commissioner is authorized to take over for settlement the affairs of a subsisting banking corporation which becomes insolvent. Other articles of the same title prescribe the course of procedure to be followed in settling the affairs of a bank which the banking commissioner takes over for administration. This course of procedure is, in every substantial respect, susceptible of application to the settlement of the affairs of a defunct banking corporation. It is not to be doujbted that, under the Constitution, tibe rights of depositors and creditors call as! loudly for the protection of a state agency, in cases where the bank’s charter expires, as in cases where the bank ceases to do business on account of insolvency. It is reasonable to presume, therefore, that the Legislature, in passing the statutes which confer authority on the state banking commissioner in respect of the settlement of the affairs of a bank which ceases to do business as a going concern, intended such authority to comprehend the affairs of a bank whose charter expires. Any other conclusion would visit upon the Legislature the imputation of disregarding, in a measure, a mandatory provision of the Constitution made for the benefit of depositors and creditors. A purpose of the Legislature to satisfy constitutional requirements, in cases of this sort, is always to be presumed unless the contrary clearly appears.

With reference to the inquiry contained in the last clause of the certified question, we are of the opinion that Articles 1388 and 1389 of the Statutes, in view of the constitutional provision which has been discussed, should not be construed as undertaking to invest the officers of a state banking corporation with exclusive authority to settle the affairs of the corporation, but that, with respect to state banks, the authority there conferred on the officers of the corporation was meant to be subordinate to the authority of the state banking commissioner to take over the affairs of the bank, for the purpose of administration under the provisions of title 16 of the Statutes (article 342 et seq.), whenever he finds it necessary to do so for the protection of the rights of depositors and creditors. Nor do we think that the Legislature meant, by these last-mentioned statutes, as applied to a state banking corporation, to relieve the banking commissioner of supervisory authority in respect of the affairs of the corporation in the hands of said officers.

What we have said sufficiently indicates the answer to the certified question set out above, and we recommend that it be so answered.

CURETON, O. J.

The opinion of the Commission of Appeals answering the certified question is adopted and ordered certified.