Litchfield v. Roper, 192 N.C. 202 (1926)

Sept. 29, 1926 · Supreme Court of North Carolina

192 N.C. 202

A. B. LITCHFIELD, Receiver of the Bank of Roper, v. MARY A. ROPER.

(Filed 29 September, 1926.)

1. Statutes — Interpretation—Repeal by Implication.

Tbe law does not favor a construction of a later statute that repeals a prior one on the same subject-matter by implication, or without express words to that effect, and will not so construe it unless it clearly appears that the legislative intent was to do so, and then only to the extent that is necessary to make a construction of the two statutes consistent and reasonable.

2. Same — Banks and Banking.

C. S., 423, under which action must be brought against a stockholder of a bank since becoming insolvent to enforce his additional liability on his shares of stock therein, 1 C. S., 237; 3 C. S., 218(a), 219(a), is by chapter 4, 'Public Laws 1921, extended to an action by the receiver to recover therefor to ten years from the discovery of the condition of the insolvent bank. O. S., 240.

3. Same — Intent.

While by a complete or entire codification of the laws upon a specific subject, former statutes upon the subject may be construed to have been repealed by implication when not therein included, the principle will not apply when from a proper interpretation of the codified laws it appears that the legislative intent was only to enlarge the former law.

4. Same — Repealing Clause.

The codification of the laws by legislative enactment repealing all laws in conflict therewith, does not repeal a former law upon the same subject-matter when it appears by proper interpretation that the legislative intent by the later law was to enlarge the provisions of the former one.

Appeal by defendant from Grady, J., at July Term, 1926, of WASHINGTON.

Trial by jury was waived (C. S., 568) and tbe judge found tbe following facts: Tbe Bank of Eoper was a corporation, wbicb becoming insolvent was put in tbe bands of a receiver in October, 1921, upon application of tbe State Corporation Commission. Wben tbe receiver was appointed tbe defendant was tbe owner and bolder of twenty-two shares of tbe capital stock of said bank of tbe par value of $100 a share. On 10 January, 1923, an order was made assessing against tbe stockholders of tbe bank one hundred per cent of tbe par value of their stock, tbe court finding as a fact upon tbe petition filed in tbe suit prosecuted by tbe Corporation Commission against tbe bank that said assessment would not be sufficient to pay all tbe creditors of tbe bank in full. Tbe present action was brought by tbe receiver on 2 March, 1926, for tbe purpose of collecting from tbe defendant the-sum of $2,200 in accordance with tbe assessment made against her on 10 January, 1923. After tbe institution of tbe action Litchfield died and Z. V. Norman was appointed to succeed him as receiver of tbe bank. Wben Litchfield was made receiver tbe defendant bad on deposit in tbe bank $336.77. On 10 January, 1923, Litchfield as receiver was directed by tbe court to bring suit against tbe directors of tbe bank to recover from them tbe losses wbicb tbe bank bad sustained by reason of tbe negligence of tbe directors, but such suit was never instituted. In February, 1926, Litchfield as receiver paid to tbe creditors of tbe bank under an order of court a dividend of ten per cent of tbe amount of their claims, but no payment was made to tbe defendant on account of her deposit. Immediately after tbe assessment was made on tbe stockholders on 10 January, 1923, tbe receiver made demand upon tbe stockholders for tbe payment of this liability.

Upon tbe foregoing facts it was adjudged: (1) that tbe defendant is not entitled to set off her deposit against tbe assessment for wbicb this action was brought; (2) that tbe defendant is not entitled to have tbe action for negligence against tbe directors determined before her liability on her assessment is adjudged; (3) that this action is not barred by tbe statute of limitations. It was further adjudged that tbe defendant is liable in law for one hundred per cent of tbe par value of her stock, and that tbe plaintiff recover of tbe defendant $2,200 and costs, and that tbe attached stock be condemned for tbe satisfaction of tbe judgment and sold after twenty days notice if tbe judgment was not paid within thirty days. Tbe defendant excepted and appealed.

Ward & Grimes for plaintiff.

Small, MacLedn & Rodman for defendant.

Adams, J.

It is provided by statute tbat tbe stockholders of every bank organized under the laws of North Carolina shall be individually responsible, equally and ratably and not one for another, to the amount of their stock at the par value thereof, for all contracts, debts, and engagements of the bank, and that suit to enforce such liability may be brought by the receiver of the insolvent corporation. 1 C. S., 237; 3 C. S., 218(a), 219(a); Smathers v. Bank, 135 N. C., 410. The object of the present action is to enforce this statutory liability against the defendant upon an assessment of $2,200 duly made upon twenty-two shares of stock held by her in the Bank of Roper. The sole question is whether the plaintiff’s action is barred by the statute of limitations.

The Code of Civil Procedure, under the title “General Provisions as to the Time of Commencing Actions,” contains the following statute: “This title shall not affect actions against directors or stockholders of any moneyed corporation, or banking association which shall hereafter be incorporated by or under the laws of this State, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created.” Battle’s Rev., 153 (54) ; The Code, sec.-175. With slight changes in phraseology this statute was brought forward in the Revisal of 1905 (sec. 378) and in the Consolidated Statutes (sec. 423). In 1911 the General Assembly enácted a statute authorizing the receiver of any insolvent bank to demand, sue for, and collect all indebtedness due from its stockholders and providing that the receiver may within ten years after an assessment on the stock institute civil actions against the stockholders to reduce their liability thereon to final judgment. C. S., 240. Again, at the session of 1921 the Legislature enacted a series of statutes entitled “An act to regulate banking in the State of North Carolina; to provide for the incorporation of banks, and the amendment, renewal, and surrender of charters; to provide for the more thorough supervision of corporations doing a banking business; to provide penalties for the violation of laws with reference to banking and the banking business and for other purposes.” Laws 1921, ch. 4. The defendant contends that these statutes operate as a revision of the banking laws and that chapter 5 of the Consolidated Statutes, including section 240, is thereby abrogated in its entirety.

We are not inadvertent to the doctrine that a revision or codification of statutes manifestly intended to embrace the entire subject of legislation has the effect of repealing former acts dealing with the same subject, although there is no repealing clause to that effect. Some of the courts say that the rule rests upon the principle of repeal" by implication; others, that it rests upon the doctrine that a revision of particular statutes by the enactment of others intended as a complete scheme of the subject imports a legislative declaration that whatever is embraced in the new law shall prevail and that whatever is excluded shall be deemed repealed. But the authorities uniformly recognize as decisive of the question either an irreconcilable conflict between statutes or the legislative intention to codify or revise the entire matter to which both statutes or both sets of statutes relate and to substitute the later legislation for the old law upon the subject. 25 R. C. L., 924 (175); Murdock v. Memphis, 20 Wall., 590, 22 Law Ed., 429; Ice Co. v. R. R., 31 Ann. Cas. (N. H.), 1090; Platt Institute v. New York, 5 Ann. Cas., 195, and annotation; Comrs. v. Henderson, 163 N. C., 114.

A revision or codification of statutes, as generally understood, signifies a written expression of the entire body of the law on the particular subject; but where the scheme of revision is intended as a continuation of existing laws, together with such changes as are necessary to make them more effective or to harmonize them, the revised laws will not usually operate as a repeal. The mere enactment of a part of a former statute will not necessarily repeal the part which is not included in the subsequent act. Howard v. Hulbert, 88 A. S. R., 267, and annotation 287, 288.

After comparing the act of 1921 with chapter 5 of the Consolidated Statutes we are by no means convinced that the later statutes were intended by the Legislature as a repeal of the old law. The appellant insists that section 240 has been superseded by section 17 of the act of 1921, and she invites a comparison of the two sections. It is important to observe that section 240 empowers the receiver to collect by lawful process all indebtedness due from the stockholders “wherever they or their legal representatives may be served or wherever any property belonging to them may be subject to attachment or other lawful process.” Section 17 leaves this provision unimpaired, but it confers on the receiver additional authority to bring suit against a resident stockholder in the Superior Court of the county in which the banking office may be located, and makes further provision as to nonresident stockholders. The object was merely to enlarge the venue. The other provisions of section 240 are not affected. And so with other sections. It is true that all laws and parts of laws in conflict with the later act are repealed (section 88), but we have discovered no provision which expressly repeals section 240, and in our judgment its repeal has not been effected by implication. As a general rule the law does not favor implied repeals. A statute may be repealed by implication and without any express words, but the leaning of the courts is against the doctrine if it is possible to reconcile the several acts. Bunch v. Comrs., 159 N. C., 335. In fact, it has been beld that tbe implication in order to be operative must be necessary, and that even tben it abrogates tbe older act only to tbe extent of its repugnancy to or inconsistency with tbe act of later date. Winslow v. Morton, 118 N. C., 486, 491; S. v. Perkins, 141 N. C., 797; Kearney v. Vann, 154 N. C., 312; Bramham v. Durham, 171 N. C., 196; Sanatorium v. Lacy, 173 N. C., 810.

Tbe defendant bas reminded us tbat C. S., 237, 239, and 240 in express terms apply to banks chartered under tbe laws of tbis State; tbat an action against a stockholder in a National Bank is barred in three years by section 423, and tbat tbe law as to State and National banks should be uniform. But these statutes were in effect when tbe act of 1911 (sec. 240) was enacted, and we must assume tbat tbe General Assembly acted with deliberation and bad good reason for extending tbe limitation of actions for an assessment against tbe stockholders of a bank from three to ten years. Tbe judgment is

Affirmed.