285 U.S. 467
WOODBINE SAV. BANK OF WOODBINE, IOWA.
Reargued March 14, 15, 1932.
Decided April 11, 1932.
[285 U.S. 467, 468] Messrs. Harold B. Claypool and W. E. Wallace, both of Williamsburg, Iowa, and James M. Parsons, of Des Moines, Iowa, for appellant.
[285 U.S. 467, 470] Mr. J. A. Murray, of Logan, Iowa, for appellee.
Mr. Earl F. Wisdom, of Des Moines, Iowa, for Andrew, Superintendent of Banking of State of Iowa, amicus curiae, by special leave of court.
Mr. Justice STONE delivered the opinion of the Court.
Appellee, an Iowa banking corporation, brought suit in the courts of that state to enforce the personal liability of appellant, its stockholder, for an assessment made under the Iowa statutes, which provide for the restoration of any impairment of capital of a bank, by assessment pro rata of the stockholders. The case comes here on appeal, Jud. Code 237 (28 USCA 344), from a judgment of the Iowa Supreme Court sustaining the assessment and upholding the statute, which is assailed as infringing the contract and due process clauses of the Federal Constitution (article 1, 10; Amend. 14). 236 N. W. 10.
On different dates between 1891 and 1917, appellant acquired twenty- six shares of the capital stock of the appellee. Appellee, originally incorporated in 1891, was reincorporated in 1911, appellant acquiring a like number of shares in the new corporation. At that time the liability to assessment of the stockholders in the bank was controlled by sections 1878, 1879, and 1880 of the 1897 Iowa Code, now appearing as sections 9246- 9248, 9249, 9250 of the 1927 Iowa Code. These sections authorize the superintendent of banks to require any impairment of capital of a state bank to be restored by an assessment upon its stockholders, as directed by an appropriate order of the superintendent, 'fixing the amount of the assessment.' Section 9247 imposes on the directors a duty to cause the deficiency in capital, thus determined, to be made good 'by a ratable [285 U.S. 467, 471] assessment upon the stockholders for the amount of stock held by them,' and requires the proper officers of the bank to give written notice of the assessment, addressed to the several stockholders, which 'shall state the entire sum to be raised, and the amount due from the addressed stockholder.' Section 9248 provides:
After appellant had acquired his stock, a new section was added by the Act of March 13, 1925, c. 181, Iowa Laws 1925, now 9248-a1 of the 1927 Iowa Code, reading as follows:
Following the adoption of this later section, the superintendent of banks determined that appellee's capital had been impaired 100 per cent., and directed an assessment accordingly. Acting under section 9248, appellee's directors sold appellant's stock for $1 a share, and the present suit was brought to recover the deficiency.
In answer to the objection that the act of 1925 subjected appellant to an unconstitutional burden, appellee [285 U.S. 467, 472] relies on the statutes antedating appellant's acquisition of his stock, as imposing on him personal liability to pay the assessment, without the aid of the quoted provision of the later act. It also argues that, even if there was no such liability under the earlier statutes, the adoption of the act of 1925 was but an exercise of the power reserved to the Legislature by section 12, art. 8 of the Iowa Constitution, and by section 1619 of the 1897 Iowa Code (section 1090, Iowa Code of 1873), providing that 'the articles of incorporation, by-laws, rules, and regulations of corporations hereafter organized ... shall, at all times, be subject to legislative control, and may be, at any time, altered, abridged, or set aside by law. ...' It is insisted that the power thus reserved embraces, not only a legislative withdrawal of any grant of immunity to the stockholders of the bank, from liability for its debts, but extends to the imposition on them of a new and continuing liability to pay any assessment levied for the restoration of capital of the bank.
The Supreme Court of Iowa found it unnecessary to pass upon these contentions. Expressly disclaiming any purpose to decide either of them, it assumed, for purposes of decision, that under the earlier statutes the deficiency after sale of the stock could not be collected from the stockholder. It then proceeded to point out that from the beginning the authorized assessments were not upon the stock of the bank, but upon the stockholders personally, and said, 236 N. W. 10, 12:
We find it unnecessary to answer the question implicit in this disposition of the case, whether an obligation can be said to exist apart from a remedy to enforce it-whether, within the meaning of the contract clause, any personal [285 U.S. 467, 474] obligation of a stockholder in the nature of a contract to restore his pro rata share of any impairment of the corporate capital can be said to exist independently of some means or remedy for enforcing it in addition to the sale of his stock.
Nor are we called on to discuss here the suggestion that, even though the sale of the stock was the only means of collecting assessments, the contract and due process clauses do not guarantee appellant against the selection and the application to him of any other remedy reasonably adapted to carrying out the policy and purpose plainly declared by the earlier statute, to require complete restoration of any impairment of corporate capital by assessment of the stockholders. See Henley v. Myers, 215 U.S. 373 , 30 S. Ct. 148; League v. Texas, 184 U.S. 156, 158 , 22 S. Ct. 475; Graham & Foster v. Goodcell, 282 U.S. 409, 426 , 51 S. Ct. 186; Milliken v. United States, 283 U.S. 15 , 20 et seq., 51 S. Ct. 324; People v. Adams State Bank, 272 Ill. 277, 111 N. E. 989; Irvine v. Elliott (D. C.) 203 F. 82, 96, 97. For we conclude that appellant does not sustain the burden which rests on him of establishing that the later statute is unconstitutional because imposing a liability to which he was not subject under the earlier one.
In strictness, appellant presents no question of impairment of the obligation of contract for it is not insisted that either party has been deprived by legislative action of any right or remedy secured by the statute in force when appellant acquired his stock. His objection is not directed to any such impairment of right or obligation. It is rather that the act of 1925 imposed on him a personal obligation where none existed before, and that its imposition, by fiat of the law, after he had bought his stock, operates to deprive him of property without due process of law. See League v. Texas, supra, 184 U.S. 158, 161 , 22 S. Ct. 475. This contention is, of course, without support if the liability to pay the full assessment declared by the earlier stat- [285 U.S. 467, 475] ute was then enforceable by any appropriate form of remedy. See Pinney v. Nelson, 183 U.S. 144, 147 , 22 S. Ct. 52; Whitman v. Oxford National Bank, 176 U.S. 559 , 20 S. Ct. 477; Thomas v. Matthiessen, 232 U.S. 221 , 34 S. Ct. 312.
The Supreme Court of Iowa has given no authoritative answer to the question whether, before the act of 1925, there was any remedy other than sale of the stock by which an assessment might be recovered from a stockholder. In the present case it did not decide the question, contenting itself with the observation that 'the only remedy under the statute was to sell his stock.' In two earlier cases, arising long after appellant acquired his stock, it had expressed the view that the only remedy for enforcing the payment of assessments was by sale of the shareholder's stock. See Leach v. Arthur Savings Bank, 203 Iowa, 1052, 1057, 213 N. W. 772; Andrew v. People's State Bank, 211 Iowa, 649, 234 N. W. 542, 546. But in neither was this statement necessary to the decision, nor did it have any bearing on the question actually decided. Both followed the passage of the act of 1925. In no other cited case has the question been considered.
Where legislation is assailed as impairing the obligation of contract, this Court, in defining the scope of the constitutional immunity, will determine for itself what the contract is for whose protection the immunity is invoked. See Appleby v. City of New York, 271 U.S. 364, 379 , 380 S., 46 S. Ct. 569. In the circumstances of this case, also, where the alleged infringement of the Fourteenth Amendment turns on the asserted non-existence of a contractual obligation to do that which the challenged statute exacts, appellant must satisfy this Court that he was not so bound. For, here, the nature and extent of his obligation depend upon the construction of a local statute which the highest court of the state has indicated by its latest decision is still open for determination. See Brunswick Terminal Co. v. [285 U.S. 467, 476] National Bank of Baltimore, 192 U.S. 386 , 392 et seq., 24 S. Ct. 314; cf. Broad River Power Co. v. South Carolina, 281 U.S. 537, 540 , 50 S. Ct. 401
The meaning of the sections now in question must be ascertained in the light of the legislative policy of the state. They are a part of its public laws, dealing with a subject of public concern, the stability and solvency of state banking institutions. See Noble State Bank v. Haskell, 219 U.S. 104, 111 , 112 S., 31 S. Ct. 186, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487; Bank of Oxford v. Love, 250 U.S. 603 , 40 S. Ct. 22. Those laws confer on the superintendent of banks full authority to require a bank to restore impairments of its capital. Section 9235, Iowa Code of 1927 (section 1572, Iowa Code of 1873). He may cause its liquidation if it refuses to comply with his order or is in an insolvent or unsafe condition, or the interests of creditors require it to be closed. Sections 9238, 9239, Iowa Code of 1927 (section 1572, Iowa Code of 1873). The stockholders are made individually liable to creditors, sections 9251, 9252, Iowa Code of 1927 (section 1882, Iowa Code of 1897); and any bank, whether its charter has expired or not, may be dissolved by vote of three-fourths of the stockholders, section 9277, Iowa Code of 1927 ( section 1857, Iowa Code of 1897).
These sections exhibit an unmistakable purpose to maintain the banks of the state in a solvent condition with capital unimpaired, which is specifically given effect by sections 9246-9248 of the 1927 Code. By these sections the appellant was made aware, when he acquired his stock, that, in the event of any impairment of capital of the bank, the super-intendent of banks was authorized to 'require an assessment upon the stockholders' and to fix 'the amount of the assessment required'; that the directors of the bank could be ordered by the superintendent to 'cause such a deficiency to be made good by a ratable assessment upon the stockholders'; that the officers of the corporation were required to give notice to each stockholder of 'the entire sum to be raised and the [285 U.S. 467, 477] amount due from the addressed stockholder'; and that after 90 days, allowed for the payment of the assessment, his stock might be sold upon an advertisement required to 'recite the assessment made and the amount due thereunder from the stockholder.' These are phrases importing legal liability. They define an obligation imposed by the statute upon the stockholders to pay the assessments to the bank, see Whitman v. Oxford National Bank, 176 U.S. 559, 562 , 20 S. Ct. 477, by which alone the complete restoration of impaired capital, which is the legislative purpose, could be secured with certainty.
If no specific remedy of any kind had been provided to compel payment of assessments, there could be little doubt that the effect of these provisions would have been to create an obligation or liability, quasi contractual in nature, on the part of stockholders acquiring their stock after the enactment, to pay to the bank a sum certain, that is, the assessment when made, for which the common law affords a remedy in debt or indebitatus assumpsit or its modern equivalent. See Mills v. Scott, 99 U.S. 25 ; Whitman v. Oxford National Bank, 176 U.S. 559 , 20 S. Ct. 477; Flash v. Conn, 109 U.S. 371 , 3 S. Ct. 263; Bernheimer v. Converse, 206 U.S. 516, 529 , 27 S. Ct. 755; Price v. United States, 269 U.S. 492, 500 , 46 S. Ct. 180; United States v. Chamberlin, 219 U.S. 250 , 31 S. Ct. 155; Meredith v. United States, 13 Pet. 486, 493; Pacific Mail Steamship Co. v. Joliffe, 2 Wall. 450, 457; Converse v. Hamilton, 224 U.S. 243, 253 , 32 S. Ct. 415, Ann. Cas. 1913D, 1292; Farmers' Loan & Trust Co. v. Funk, 49 Neb. 353, 68 N. W. 520. See James B. Ames, Lectures on Legal History, Implied Assumpsit, 149, 161.
In the face of the sweeping language of the statute, the mere fact that it gave a remedy by sale of the stock cannot be taken as necessarily precluding resort to the common-law remedy, which would otherwise be available and by which alone the liability declared could in many cases be successfully enforced. The summary remedy by a sale would often be a speedy and convenient alternative [285 U.S. 467, 478] method of enforcing the statutory liability to pay assessments. But it is not stated to be exclusive, and its adoption involves no necessary inconsistency with the continued existence of a common-law remedy for the recovery of the sum certain fixed by the assessment and declared to be due by the statute. In those instances, where the impairment is more than 50 per cent, of the capital, the remedy by sale would be insufficient to enforce the liability declared. No reason is suggested why such a remedy should, by mere implication, be deemed exclusive or why the statute should be so construed by inference as to defeat its obvious purpose, or limit or destroy the liability which, in plain terms, it has created.
It is true that, where a statute creates a liability and provides a remedy by suit specially adapted to its enforcement, other less appropriate common-law remedies are impliedly excluded. See Evans v. Nellis, 187 U.S. 271 , 23 S. Ct. 74; Pollard v. Bailey, 20 Wall. 520, 527; Williamson v. American Bank (C. C. A.) 115 F. 793; cf. Middletown Bank v. Railway Co., 197 U.S. 394 , 25 S. Ct. 462. And in every case conditions precedent to the statutory liability must be satisfied before any form of remedy can be resorted to. Fourth National Bank v. Francklyn, 120 U.S. 747 , 7 S. Ct. 757; Middletown Bank v. Railway Co., supra; State National Bank v. Sayward ( C. C. A.) 91 F. 443. But here the conditions of liability, the order of the super-intendent of banks, the assessment by the directors, and the notice fixing the amount of appellant's obligation, have all been performed. Here the remedy provided is a summary and only partially effective supplement or alternative to that which the common law affords for enforcing the obligation to pay a sum certain, which, when fixed by the prescribed assessment, is declared to be due and owing. The very fact that the remedy is on its face inadequate to compel full performance of the obligation declared is persuasive that it was [285 U.S. 467, 479] not intended to be exclusive of applicable common-law remedies, by which complete performance might be secured.
Administrative remedies for the collection of taxes, if not made exclusive by statute, do not preclude the recovery of the tax by a common- law action of debt. Price v. United States, 269 U.S. 492, 500 , 46 S. Ct. 180; United States v. Chamberlin, 219 U.S. 250, 262 , 31 S. Ct. 155; Dollar Savings Bank v. United States, 19 Wall. 227, 238, 239; Meredith v. United States, 13 Pet. 486, 493; see Stockwell v. United States, 13 Wall. 531, 542. And in general the liability of stockholders to assessment under local statutes is deemed transitory in nature, enforceable by common-law remedies in states other than that of the corporation, although special statutory forms of remedy given by the local statute could not be resorted to elsewhere. See Whitman v. Oxford National Bank, 176 U.S. 559 , 20 S. Ct. 477; Hancock National Bank v. Farnum, 176 U.S. 640 , 20 S. Ct. 506; Hale v. Hardon (C. C. A.) 95 F. 747; Rhodes v. United States National Bank (C. C. A.) 66 F. 512, 34 L. R. A. 742; Dexter v. Edmands (C. C.) 89 F. 467.
The enactment of the statute of 1925, specifically authorizing a suit for the deficiency after the sale of the stock, served to remove any possible doubts and rendered certain what may previously have been thought by some to be uncertain. But it can hardly be taken to be a legislative determination that under the earlier statutes no common-law remedy could be availed of for the collection of assessments. If not, mere variations of the remedy or the creation of new ones, even though more onerous, for the enforcement of a pre-existing obligation to pay assessments in full, are unobjectionable. See Hill v. Merchants' Mutual Insurance Co., 134 U.S. 515 , 10 S. Ct. 589; League v. Texas, 184 U.S. 156, 158 , 22 S. Ct. 475; Henley v. Myers, 215 U.S. 373 , 30 S. Ct. 148; Conley v. Barton, 260 U.S. 677 , 43 S. Ct. 238.
In the absence of an authoritative construction by the state court of the statutes in force when appellant acquired [285 U.S. 467, 480] his stock, we cannot say that he was not personally liable for his pro rata share of any impairment of the bank's capital assessed against him while he remained a stockholder, whether his stock was sold under section 9248-a1, or not, or that the later statute, which provided a remedy for enforcing such liability, infringed his constitutional rights.