OFFICIAL VISITATION BY BANKING DEPARTMENT. 85. SECTION XXI. OFFICIAL VISITATION BY SUPERINTENDENT OF BANKING DEPARTMENT-TO BE MADE AT REQUEST OF THREE OR MORE MEMBERS - DUTY OF SUPERINTENDENT WHEN REPORT OR EXAMINATION IS UNSATISFACTORY. Special Examination. § 21. All associations organized under the provisions of this act shall be subject to the visitation and examination at all times by the Superintendent of the Bank Department, his deputies or duly appointed agents, upon the application of three or more members of said association. If it shall appear to said superintendent, from the report of any said association, or from an examination made by him, his deputies or duly appointed agents, that any such association is violating the provisions of this act, or is conducting its business in an unsafe or unauthorized manner, he shall, by an order under his hand and seal addressed to such association, direct the discontinuance of such illegal and unsafe practices; and whenever any association shall neglect or refuse to comply with such order, or make reports as required, he shall communicate such facts to the Attorney-General, who shall thereupon be authorized to institute proceedings against any such association as are now, or may hereafter be provided for by law in the case of an insolvent corporation, or such other proceeding as the nature of the case may require. For comments on this section, see "special examination," (see index). The expenses of aspecial examination as here contemplated do not seem to be chargeable to the association examined. Under the Act of 1851 as amended, these expenses are chargeable against all associations organized under that statute that are examined. 86 RE-INCORPORATION-EXEMPTION FROM TAXATION. SECTION XXII. OTHER ASSOCIATIONS MAY RE-INCORPORATE UNDER THIS ACT-MAJORITY VOTE OF SHAREHOLDERS REQUIRED. § 22. Any association now existing and heretofore incorporated under the provisions of said chapter one hundred and twenty-two of the laws of eighteen hundred and fiftyone, may be entitled to the benefits of this act, on the majority vote of the shareholders of said association, directing the making and filing of the certificate mentioned in the third section of this act, and conforming the transaction of their business to the provisions of this act. SECTION XXIII. EXEMPTION FROM TAXATION. § 23. Associations organized under this act shall not be subject to the provisions of chapter one hundred and forty-three of the laws of eighteen hundred and eighty-six. SECTION XXIV. § 24. This act shall take effect immediately. APPENDIX. The Act of 1887 having been intended as a restraint on the lax methods made possible by some of the flexible provisions of the Act of 1851, and the majority of the newly formed associations continuing to organize under the prior statute, it was deemed proper to ascertain by some authoritative declaration, the practical legal effect of the new statute on the prior law. The question whether the Act of 1851 was repealed or amended by that of 1887, and whether both were yet in legal operation became a live issue. In the absence of any decision of a court on this point, the opinion of the Attorney-General is conceded as authoritative, and the following correspondence and opinion of the AttorneyGeneral will explain why in legal contemplation both statutes are entitled to force and validity: HON. CHARLES F. TABOR, Attorney-General : DEAR SIR: November 24th, 1888. Several of the attorneys connected with the organization of co-operative savings and loan associations have urged upon me the claim that the Act of 1887, relating to these corporations, does not repeal by legal implication the previous Act of 1851, and the amendments thereto. From all the data and unofficial information relating to these associations that I received since the enactment of the Statute of 1887, I lean to the opinion that a majority of associations organized since 1887, have availed themselves of the Statute of 1851. If this opinion is correct, it seems that whatever benefits may have been intended by the recent statute are, in a degree, inoperative, and whatever evils were sought to be prevented, are liable to continue. Those who have been anxious to find in the Act of 1887 a compulsory remedy for whatever abuses are possible under the Statutes of 1851, have inclined to the rule of law laid down. in Heckman v. Pinkney, 81 N. Y. 211, wherein it was held that "a later statute, not purporting to amend a former one, covers the whole law, and was plainly intended to furnish the only law on the subject, the former statute must be held repealed by necessary implication." In this decision, the facts and the statutes there at issue are somewhat analogous to the points of the controversy that has now arisen. The vital point seems to be, was the Statute of 1887 intended in a legal sense, to furnish the only law for the organization and management of these associations. And in arriving at an opinion on this point, the case of The People v. Jaehne, 103 N. Y. 182, seems to bear an apt connection in that the majority opinion of the court inclines to an implied repeal. The minority opinion by Rapallo, J., while it tends to give the former statute in that case equal operation and validity, does so on other legal grounds than those available in this discussion. The opinion of Judge Rapallo, page 204, seems to be based mainly on that well settled rule of law that a subsequent general statute can not impliedly repeal a former special or local statute. In this discussion, both statutes seems to be general laws as defined in the matter of New York Elevated R. R. Co., 70 N. Y. 327. They are laws operating in all parts of the State, and applicable to all corporations of this class. There is no official opinion, nor any decision of a court on this question of repeal of the Act of 1851, and the matter calls for some authoritative declaration and thus remove the doubt that now seems to exist. An opinion from you in connection with this subject will oblige, WILLIS S. PAINE, SUP'T. BANKING DEPARTMENT, ALBANY, N. Y. DEAR SIR: State of New York, ATTORNEY-GENERAL'S OFFICE, Your communication asking me if, in my opinion, Chapter 556, of the Laws of 1887, repeals Chapter 122, of the Laws of 1851, and Chapter 364, of the Laws of 1875, amending the same, has been received, and in reply thereto I beg leave to state as follows: There is no express provision of repeal in the Act of 1887, and the general rule applicable to the question of implied repeals in a case like the present was stated by the Court of Appeals in Heckman v. Pinkney, 81 N. Y. 211, to be that, "where a later statute, not purporting to amend a former one, covers the whole subject and was plainly intended to furnish the only law upon the subject, the former statute must be held repealed by necessary implication." While the Act of 1887 appears to have had in view general purposes similar to the purposes of the Act of 1851, still there is nothing repugnant in the two Acts, and the Act of 1887 does not appear, in my opinion, to have "plainly intended to furnish the only law upon the subject," as is evidenced by Section 22, which expressly recognizes the Act of 1851, and authorizes corporations formed thereunder to re-organize under the provisions of the Act of 1887, and said Section 22 also indicates that, within the rule in People v. Jaehne, 103 N. Y. 194, the Act of 1851 "was in the mind of the legislature" when the Act of 1887 was passed, and if the legislature had intended to repeal the Act of 1851, it is presumed that it would have done so by express language, for upon examination of the original Senate Bill No. 320, G. O. 186, Section 22 contained this clause "Chapter 122, of the Laws of 1851, entitled * * * and Chapter 564, Laws of 1875, entitled * * * are hereby repealed * * * ." This clause was stricken out of the Bill as passed, which is a strong indication that the legislature did not intend to repeal said Chapters. I am of the opinion, therefore, although the question is largely one of judgment, that the Act of 1887 does not repeal the Acts of 1851 and 1875, above referred to. Very Respectfully, Your Obedient Servant, CHAS. F. TABOR, 307038A |