#### CORPORATION COMMISSION OF THE STATE OF NORTH CAROLINA v. D. S. MURPHEY.

(Filed 10 April, 1929.)

1. Banlcs and Banking H a — Chapter 113, Public Laws 1927, in regard to liability of stockholders of defunct bank, Constitutional — Due Process of Law.

Section 13, chapter 113, Public Laws 1927, is constitutional and valid, and is not in contravention of tbe Due Process Clause of tbe Federal Constitution or tbe Law of tbe Land Clause of tbe State Constitution, since under its provisions tbe statutory liability of a stockholder of an insolvent bank is not enforceable by execution under tbe order of tbe Corporation Commission until after be bas been given notice and an opportunity to be beard in tbe course and practice of our courts, and an appeal has the effect of staying execution until bis defense bas been determined before a jury.

2. Constitutional Law I b — Federal Constitution does *not*bind State as to i>rocedure under Due Process Clause.

The Fourteenth Amendment to the Federal Constitution does not control tbe power of tbe State to determine the process by wbicb legal rights may be asserted or legal obligations enforced if the method of xirocedure gives_ notice and a fair opportunity to be beard.

Stacy, C. X, concurs in result only. Brogden, X, concurs with opinion in wbicb Clarkson,' X, concurs.

Appeal by petitioner, D. S. Murphey, from *Grady, J.,*at Chambers, Jacksonville, N. C., on 13 January, 1929.

Affirmed.

This is a motion made by the petitioner, D. S. Murphey, upon a special appearance, in a proceeding for the liquidation of an insolvent banking corporation, organized and doing business under the laws of this State. The proceeding was begun on 28 May, 1928, and is now prosecuted in the Superior Court of Duplin County by the Corporation Commission of the State under and pursuant to the provisions of chapter 113, Public Laws 1927.

*43Tbe petitioner, D. S. Murphey, challenges tbe validity of an assessment made against him in said proceeding, by reason of bis statutory liability as a stockholder of said insolvent corporation. .The assessment was made by tbe Corporation Commission on 4 October, 1928, in accordance with tbe provisions of section 13, chapter 113, Public Laws 1927. Tbe assessment, has been duly docketed in tbe office of tbe clerk of tbe Superior Court of Duplin County. Tbe petitioner has failed to pay said assessment; tbe Corporation Commission has requested tbe clerk of tbe Superior Court to issue an execution on said assessment, to be levied on tbe property of petitioner, for its collection.

Tbe petitioner contends that tbe statute under which tbe assessment was made is unconstitutional and that, therefore, tbe assessment is void. He prays that said assessment be declared void by tbe court, and that proceedings to enforce tbe same be enjoined.

Tbe court was of opinion that tbe statute is constitutional in all respects, and that, upon tbe facts agreed at tbe bearing of tbe motion, tbe assessment is valid, and so adjudged.

From an order, in accordance with said opinion, tbe petitioner, D. S. Murphey, appealed to tbe Supreme Court.

*I. M. Bailey and Beasley & Stevens for the Corporation Commission.*

*Shaw & J ones for the petitioner, D. S. Murphey.*

CoNnor, J.

Tbe sole question decided by tbe court below and now presented to this Court for decision, is whether section 13, chapter 113, Public Laws 1927, is constitutional; no other question was or is presented for decision.

It is conceded that tbe proceeding for tbe liquidation of tbe Farmers Bank & Trust Company of Wallace, N. C., was duly begun by tbe Corporation Commission, and has been duly prosecuted in accordance with tbe provisions of chapter 113, Public Laws 1927; that said Bank & Trust Company is insolvent, unless there shall be included among its assets, tbe claim of said company against its officers and directors for damages resulting from their wrongful acts as such officers and directors; and that tbe petitioner, D. S. Murphey, is a stockholder of said company.

It is further conceded that tbe assessment by tbe Corporation Commission against tbe petitioner, D. S. Murphey, by reason of bis statutory liability as a stockholder, was made in strict conformity with the provisions of section 13, chapter 113, Public Laws 1927. Tbe said assessment is, therefore, valid unless said chapter 113, Public Laws 1927, and particularly section 13 of said chapter, is void, for that tbe same is unconstitutional, as contended by the petitioner.

*44Prior to the enactment of chapter 113, Public Laws 1927, it was held by this Court that under the statutes then in force, prescribing the procedure for the enforcement of the statutory liability of stockholders of a banking corporation, as individuals, upon the insolvency of said corporation, assessments could not be made against said stockholders, until the deficiency between the amount of the liabilities of the insolvent corporation, and the amount of its assets, in the hands of its receiver, available for the payment of dividends on the claims of depositors and other creditors, had first been determined. *Corp. Com. v. Bank,*193 N. C., 113, 136 S. E., 362; *Corp. Com. v. Bank,*192 N. C., 366, 135 S. E., 48. It was also held that the claim of the corporation against its officers and directors for damages, resulting from the wrongful acts of said officers and directors, was an asset of the corporation and that upon the insolvency of the corporation, and the appointment of a receiver, such claim passed to and ordinarily must be enforced by said receiver. *Douglass v. Dawson,*190 N. C., 458, 130 S. E., 195. The procedure under the statutes in force prior to the enactment of chapter 113, Public Laws 1927, for the enforcement of the statutory individual liability of stockholders of an insolvent banking corporation, often proved ineffective, especially when long and expensive litigation became necessary to enforce claims against officers and directors for damages, resulting in or contributing to the insolvency of the corporation. Depositors and other creditors of an insolvent banking corporation, for whose security the statute imposing individual liability upon stockholders was enacted, often lost the benefit of the statute, because of delay in making assessments, and also because of difficulties encountered by receivers, appointed by the courts, in enforcing them.

To remedy the defects in the procedure under the former statutes, section 13, chapter 113, Public Laws 1927, was enacted. This section is the only provision of said chapter, directly affecting stockholders of insolvent banking corporations, as individuals. It is as follows:

> “After the expiration of thirty days from the date of the filing of the notice of the taking possession of any bank, in the office of the clerk of the Superior Court, the Corporation Commission may levy an assessment equal to the stock liability of each stockholder in the bank, and shall file a copy of such levy in the office of the clerk of the Superior Court, which shall be recorded and indexed as judgments, and shall have the force and effect of a judgment of the Superior Courts of this State; and the same shall become due and payable immediately, and if not paid execution may at the instance of the Corporation Commission issue against the stockholder delinquent, and actions on said assessment may be instituted against any nonresident stockholders in the same manner as other actions against nonresidents of the State. Any stockholder may *45appeal to the Superior Court from the levy of assessment; the issue raised by the appeal may be determined as other actions in the Superior Court. At any time before the determination of said appeal such stockholder may petition the resident or presiding judge to relieve his property of the lien, 'pending the determination of the question raised by said appeal; and such relief may be granted in the discretion of the judge hearing the petition and upon such terms as he may fix. The rights of levy and assessment herein given shall not affect the right of the Corporation Commission to enforce the liability of legal or equitable owners of stock not named in the certificate and the liability of trans-ferers of stock as provided in section two hundred and nineteen (d). All sums collected under the levy shall become immediately available as general assets of the bank for distribution as other assets; *Provided, however,*that whenever the expenses of liquidation have been paid and all of the liabilities to depositors and other creditors shall have been discharged, the money then remaining in the hands of the Corporation Commission shall be applied pro rata to the repayment of the amounts paid in by the stockholders.”

The contention that the foregoing statute is in violation of provisions of the Constitution of the United States and also of the Constitution of this State, in that stockholders of insolvent banking corporations, under the procedure prescribed therein, may be deprived of their property, without due process of law, or contrary to the law of the land, cannot be sustained.

Stockholders of banking corporations, organized and doing business under the laws of this State, are liable, as individuals, for the contracts, debts and engagements of the corporation, by statute, within the limitation prescribed therein. 3 C.-S., 219(a). Such stockholders subscribe for or purchase stock in such corporations with notice of their statutory liability, as individuals. When a banking corporation is adjudged insolvent, because its assets, available for the payment of its liabilities, are not sufficient for the payment of the same, each stockholder has notice that he is liable to an assessment on account of his individual, statutory liability. He is interested then only in the amount or amounts for which he may be assessed on account of such liability. Under the procedure prescribed by the statute, he has notice that the corporation has been adjudged insolvent; he also has notice of the amount of the assessment made against him. He may appeal from the assessment to the Superior Court of the county in which the proceeding for the liquidation of the corporation is pending; on his appeal, all issues raised by him, whether of law or of fact, involving his liability on the assessment, will be determined, in accordance with the procedure for the trial of actions brought and prosecuted in the Superior Court. The stockholder *46is thus assured that he cannot be deprived of his property without due process of law, or contrary to the law of the land. He is given an opportunity to be heard before his property can be sold under execution for the payment of his assessment. *Davidson v. New Orleans,*96 U. S., 97, 24 L. Ed., 616.

It cannot be held that under the procedure prescribed by the statute, an assessment can be made against a stockholder of an insolvent banking corporation without notice to him, or without an opportunity to be heard as to the validity of the assessment. Provision is made in the statute for notice to all persons that the Corporation Commission, as an agency of the State, has taken possession of the corporation and of its business; this notice must be filed in the office of the clerk of the Superior Court of the county in which the principal office of the corporation is located. Stockholders as well as others are affected by this notice. No assessment can be made by the Corporation Commission until the expiration of thirty days from the date of the filing of this notice. In the meantime the corporation has ceased to do business, and the Corporation Commission has had exclusive possession and control of its affairs; officers, directors and stockholders have been deprived of possession and control of the corporation. Notice of the insolvency of the corporation is sufficient notice to each stockholder of his liability to an assessment for the benefit of depositors and other creditors of the insolvent corporation. *Bernheimer v. Converse,*206 U. S., 516, 51 L. Ed., 1163. To hold otherwise would seem to be “sticking in the bark”; it would be to ignore the facts apparent to all.

The statute further provides that a copy of assessments made against stockholders, on account of their individual liability, imposed by statute for the benefit of depositors and other creditors, shall be filed in the office of - the clerk of the Superior Court. Each stockholder is thus notified of the amount due by him on his assessment. If a stockholder, or any person assessed as a stockholder, has a defense to the assessment, he may appeal to the Superior Court; there he will be heard, as to any matters of law or fact, upon which he relies for his defense. Thus ample notice of his liability to assessment, and full opportunity to be heard as to its amount is provided by the statute for each stockholder or person assessed as a stockholder, by the Corporation Commission. The fact that the opportunity to be heard is given by an appeal to the Superior Court, after the assessment has been made, does not deprive him of due process of law. *Coffin Bros. & Co. v. Bennett,*277 U. S., 29, 48 Sup. Ct. Rep., 422. In his opinion in the cited case, decided 30 April, 1928, speaking of a provision in the Banking Act of Georgia, similar to the statute now under consideration, *Mr. Justice Holmes*says:

> *47“A reasonable opportunity to be beard and to present tbe defense is given, and if a defense is presented, tbe execution is tbe result of a trial in court .... Tbe fact that tbe execution is issued in tbe first instance by an agent of tbe State, but not from a court, followed as it is by personal notice and a right to take tbe case into court, is a familiar method in Georgia, and is open to no objection. If a debtor does not demand a trial, tbe execution does not need tbe sanction of a judgment; tbe plaintiffs in error by becoming stockholders bad assumed tbe liability on which they are to be held.”

Doubtless, in tbe administration of this statute, tbe Corporation Commission will, as a matter of practice, in addition to tbe constructive notice to stockholders, as provided by statute, which we bold is sufficient to uphold tbe statute, give actual, personal notice to each stockholder, by mail or otherwise, before tbe assessment is made, and also before execution is issued to enforce tbe assessment. Execution can be issued only when tbe stockholder has failed to pay tbe assessment, upon demand by tbe Corporation Commission, and is, therefore, delinquent.

Tbe assessment, although duly docketed and indexed as required by tbe statute, in order to make tbe assessment a lien on tbe property of tbe stockholder, is not a judgment in tbe sense that it is conclusive; it can be enforced by execution only where there is no appeal from tbe assessment.- An appeal stays execution to enforce tbe assessment; provision is made by tbe statute by which tbe stockholder may have bis property relieved of tbe lien of tbe assessment, pending tbe bearing of bis appeal. Opportunity is given to tbe stockholder, even after execution has been issued on tbe assessment, and is in tbe bands of tbe sheriff, by appeal to tbe Superior Court, to interpose a defense, if any be has, to tbe assessment or to bis liability therefor. Tbe property of tbe stockholder, upon which tbe execution has been levied, cannot be sold without personal notice to tbe stockholder, at least ten days before tbe sale. 0. S., 689.

It has been held by the Supreme Court of the United States that the essential elements of due process of law are notice and opportunity to defend, and that in determining whether such rights are denied, that Court will be governed by the substance of things, and not by the mere form, *Simon v. Craft,*182 U. S., 427, 21 Sup. Ct. Rep., 836, 45 L. Ed., 1165, that the Fourteenth Amendment safeguards fundamental rights and not the mere form which a state may see proper to designate for the enforcement and protection of such rights, *Cincinnati Street R. Co. v. Snell,*193 U. S., 30, 24 Sup. Ct. Rep., 319, 48 L. Ed., 604, and that the Fourteenth Amendment in no way controls a state in determining the process by which legal rights and obligations may be asserted or enforced, provided the method of procedure adopted for that purpose *48gives reasonable notice and fair opportunity to be beard before the issues are decided, *Iowa C. R. Co. v. Iowa,*160 U. S., 389, 16 Sup. Ct. Rep., 344, 40 L. Ed., 467.

It bas also been beld that the words “due process of law” as used in the Constitution of the United States do not necessarily imply a regular proceeding in a court of justice, or after the manner of sucb courts. *Davidson v. New Orleans,*96 U. S., 97, 24 L. Ed., 616; due process is not necessarily a judicial process, *Reetz v. Michigan,*188 U. S., 505, 23 Sup. Ct. Rep., 390, 47 L. Ed., 563. Public officers and boards in determining the existence of facts and the application to them of rules of law, perform administrative, not judicial, duties, and their proceedings are due process of law, *Den ex Dem Murray v. Hoboken Land & Imp. Co.,*18 How., 272, 15 L. Ed., 372.

It bas been beld by this Court that altbougb a statute providing for the condemnation of land for street purposes contains no express requirement for notice to the landowner whose land is to be taken for that purpose, sucb requirement will be implied from other provisions of the statute, and that the statute, therefore, does not violate constitutional provisions with respect to due process of law, or with respect to the taking of property contrary to the law of the land. *S. v. Jones,*139 N. C., 613, 52 S. E., 240, 2 L. R. A. (N. S.), 313. In the instant case, the statute requires notice to the stockholders, by the filing of the notices in the clerk’s office that the Corporation Commission bas taken possession' of the corporation, and bas made the assessments; no proceeding for the enforcement of an assessment is authorized until the stockholder'has become delinquent, *i. e.,*bas failed or refused, without appeal, to pay the assessment, upon demand. Actual, personal notice to the stockholder is required before execution can be issued. Upon receiving sucb notice, the stockholder may at once appeal from the assessment to the Superior Court where full opportunity is given him to make bis defense to the assessment.

Other grounds upon which it is contended that the statute is unconstitutional are involved in the contention that the statute is in contravention of constitutional provisions relative to due 'process of law. Contentions based upon these grounds have been duly considered; they cannot be sustained. Tbe Corporation Commission, in making assessments against stockholders, under the statute, and in enforcing the same, acts as an agency of the State, and not in its own interest. It exercises powers, quasi-judicial, as well as administrative, both in making the assessments and in enforcing the same. It does not exercise these powers for its own’ benefit, but for the benefit of depositors and other creditors of the insolvent corporation who have relied upon the statutory liability of the stockholders of the banking corporation and also for the *49benefit of stockholders. All assessments made by the Corporation Commission are subject to review by the Superior Court, upon appeal by the stockholder, or person assessed, both with respect to matters of law and of fact. The philosophy of the statute is that depositors -and other creditors of a banking corporation, who have been induced to make deposits, and to enter into contracts with the corporation, by assurance that the stockholders are by statute individually liable for the contracts, debts and engagements of the corporation, shall be protected upon the insolvency of the corporation, and shall not be unduly delayed in the. enforcement of their claims against the corporation by litigation.

As to whether the claim of a banking corporation against its officers and directors for damages caused by their wrongful acts, should be considered in determining whether or not the corporation is insolvent, and stockholders are, for that reason, liable to assessment, is not presented by this record. This claim is an asset of the corporation, which upon its insolvency passes to and vests in the Corporation Commission, as its statutory receiver. It is usually involved in litigation, and is not ordinarily available for the payment of depositors and other creditors, until after long and expensive litigation. This must be considered in determining its value, as an asset, and therefore whether or not, notwithstanding the claim, the corporation is insolvent at the time assessments are to be made, or was insolvent at the time they were made against stockholders. The finding of the Corporation Commission that a banking corporation is insolvent, and that therefore its stockholders are liable to assessment, is presumed to be correct. In any event, stockholders who have paid their assessments, after the expenses of the liquidation have been paid, and all of the liabilities to depositors and other creditors have been discharged, are entitled to the money remaining in the hands of the Corporation Commission, to be paid to them pro rata.

*We*concur with the learned judge who presided at the hearing in the Superior Court that the statute does not violate provisions of the Constitution of the United States, or of the Constitution of this State, with respect to due process of law; that the statute is constitutional in all respects, and that, upon the facts agreed at the hearing, the assessment is valid. The order is

Affirmed.

Stacy, C. J., concurs in result only.

Bbogden, J.,

concurring in result. I have grave doubt as to the constitutionality of the statute because it does not provide for notice to the stockholder before judgment and execution. Execution cannot issue. *50except upon a regular judgment, regularly obtained according to law. I do not agree that tbe judgment mentioned in tbe statute, is a tadpole judgment. It appears to me that it is a full fledged frog from tbe beginning.- Furthermore, tbe only case cited to support this phase of tbe statute is tbe *Bennett case.*It is to be noted, however, that tbe Georgia statute expressly provides for personal notice before judgment.

It is declared in tbe opinion, “An appeal stays execution to enforce tbe assessment.” Consequently, a stockholder cannot be compelled to .pay until bis defense has been determined by a jury. This result saves tbe day.

I am authorized to say that *Clarkson, J.,*concurs in this view of tbe case.