Ghingher v. Pearson

Bond, C. J., delivered the opinion of the Court. To meet the exigencies of the banking crisis early in the year 1933, the Governor of Maryland declared successive banking holidays, extending together from Eebruary 25th to March 4th, and on March 4th the General Assembly of the State passed an emergency statute, generally referred to as the Emergency Banking Act, to place the business of banking institutions under control, providing for restric ²⁷⁶ tions -upon withdrawals from deposits where made necessary by conditions of the respective depositaries, and providing a plan for rehabilitation of any institutions which could not be expected to meet their obligations otherwise. Specified deposits of public money were exempted by the statute from the restrictions imposed on withdrawals, and thev present litigation has arisen upon complaints of existing general depositors whose- rights were thus to be deferred. The statute, chapter 46 of the Acts of 1933, has added seventeen new sections to- article 11 of the Code concerning “Banks and Trust Companies,” to follow after section 11. “Whereas,” reads its preamble, “An emergency has arisen which has been accompanied by widespread unemployment, decreased values, untimely withdrawals of deposits and other conditions beyond the control of the State, and Whereas, The welfare of the State as a whole and of the depositors and creditors of banking institutions requires the immediate enactment of additional legislation to promote justice, prevent distress and discriminations, and establish an orderly method of reconstruction,” therefore the statute is enacted.

And concluding sections declare that it is enacted to meet an. emergency through the police power of the state, and is immediately necessary for the preservation of the public peace, health and safety. The existence of the crisis so to be met, and its character, the culmination of prolonged economic depression, widespread unemployment and want, prostration of private charity and reduction in supplies of public funds, and the menace to- the finances of the people of the state, and of the whole country, from loss of values in banking assets, difficulty in converting them into- money, and runs of depositors that had begun, are well known, and in need of no further statements here. The statutory plan has been to- place control of the institutions in the bank commissioner so far as conditions may require; those institutions which could not meet all demands at once either to be returned to full freedom after a period of restriction to installment or percentage withdrawals, or to be reorganized if ²⁷⁷ reorganization should he required to meet the conditions — - all as the commissioner might determine after ascertainment of the facts. The control of the commissioner for these purposes is to endure for one year, with possible continuation during another year.

A section 71B provides that all remedies of depositors, creditors, stockholders or others, arising out of-agreements or transactions made prior to the passage of the statute, against any institution in the custody of the commissioner, shall be suspended during the period of control, saving, however, rights in or against collateral security. By the same section it is provided that during that period the assets and business of controlled institutions shall be deemed to be in the possession of the commissioner in custodia legis, and the property of the institutions shall not be subject to attachment, execution, or seizure under judicial process of any kind. Section 71E provides that any institution in the* commissioner’s custody may receive new deposits, which shall be subject to withdrawal in accordance with their terms, and shall be preferred, in right of payment and satisfaction, to deposits, debts, or liabilities made or incurred prior to the assumption of management by the commissioner; and percentages of old deposits made available from time to time shall have the status of new deposits within the meaning of the section, and shall not be subject to restrictions imposed on other deposits. In section 71G, the deposits to be excepted from the imposition of restrictions, and so to be preferred, are specified; and this section is therefore the immediate ground of controversy in most of the suits before the court.

It provides that: “All deposits of public money not secured by the deposit of collateral or by a surety bond, guaranteeing the payment of such deposits when demanded, now in any hanking institution, made by the State of Maryland, any county, municipality or town, taxi Jig district, or any political sub-division of the State or of any officer, board, commission, institution or other agency thereof or the receiver of any hanking institution, shall be entitled to priority and immediately ²⁷⁸ transferred to a new deposit and thereafter subject to all rights as to new deposits set out in Section 71E of this Act. Eo restriction or limitation on withdrawals of deposits made by or under the provisions of this Act shall apply to withdrawals from any banking institution by check payable to and in the possession of the City Collector of Baltimore City before five P. M. on February 28th, 1933, and presented by the said collector for deposit to any banking institution in Baltimore City on March 1st, 1933, the aggregate amount of said checks not to exceed $2,101,347.90. Any banking institution is authorized to accept the certification of the City Collector to the facts above stated, and upon such identification the banking institution upon which said checks are drawn is required to' pay the same. The purpose of this is to provide the city with necessary funds to meet certain bonded indebtedness and interest which matured on March 1st, 1933, and to enable said city to meet emergency relief for which funds are otherwise unavailable.” The first case was instituted by Craven P. Pearson and Horace E. Wennagle, two depositors in the Baltimore Trust Company, which was one of the banking institutions not permitted to open for the full resumption of its business, and one whose depositors generally were by the terms of the statute deferred to those specified as excepted from restrictions.

The original defendants were the bank commissioner and the Baltimore Trust Company, but, upon petitions of several others interested in the question of validity of the priorities, these were admitted as parties defendant; that is, John J. Ghingher, the bank commissioner, in his capacities as receiver •of the Title Guarantee & Trust Company, receiver of the Commercial Savings Bank of Baltimore, receiver of the Park Bank, and receiver of the Chesapeake Bank of Baltimore, and the Mayor and City Coiincil of Baltimore. The bank commissioner filed answers and demurrers in his several capacities, and on behalf of the city a demurrer only was filed. The questions at issue were by agreement of all counsel argued on the demurrers. From the decree, so far as it affects priorities in which those parties are interested, appeals have been en ²⁷⁹ tered by the bank commissioner as receiver of the Chesapeake Bank, and by the Mayor and City Council of Baltimore, and by the complainants themselves from the upholding by the decree of the statutory exemption or priority of state deposits.

In the hill it was averred that the complainants were depositors in the Baltimore Trust Company as stated; that the assets of that company had become insufficient for the payment of its obligations in full, and that up to the time of the institution of the suit the complainants had been, as a consequence of the custody and control of the bank commissioner, barred from withdrawal of any of their deposits, while under the provisions of the statute the depositors specified as exempted, but who in fact were entitled only to equal rights with the complainants, were to be allowed to withdraw the whole amounts of their deposits out of the funds available ; that this would result in a deprivation of constitutional rights of the complainants, and should therefore be enjoined. The answer of the hank commissioner denied that the Baltimore Trust Company was insolvent, and stated that subsequently depositors generally had been permitted to withdraw as much as five per cent, of their deposits in this institution. An objection applicable in this and all other suits by deferred depositors goes to their right to' complain of any exemptions. It is urged that, so far as appears from the averments, they have suffered only a suspension or postponement of their rights as depositors, and that the exemptions allowed by the statute are no more than priorities or preferences in time or order of payment.

The statute with which these controversies are concerned is not one providing for the winding up of banking institutions and distribution of their funds and assets according to the legal rights and priorities of claimants; such winding up and distribution is the subject of provisions in older sections of article 11 of the Code. See sections 9 and 61. The statute with which the court has 'to deal now provides for a moratorium for institutions still in business, hut under restriction and protection. But, in so far as any of the depositors are preferred and exempted from the ²⁸⁰ protective restrictions, others are subjected to an inequality, in a probable greater delay from the. reduction of resources on which the business of the depositors is to be built up and resumed, and a possibility of increase of loss in case of ultimate failure of the efforts to resume.

And, in so far as this inequality may be a new imposition under the statute, it would materially impair the rights of deferred depositors under their contracts, and when the funds have been reduced it would in a measure appropriate their rights and interests .in favor of the preferred and exempted. See Edwards v. Kearzey, 96 U. S. 595, 600 , 21 L. Ed. 793 . It is true that in legal theory money deposited in general deposits becomes the property of the banks, and the depositors become creditors (Hardy v. Chesapeake Bank, 51 Md. 562 ), but the depositors, as contributors to a common fund which each and all contract to have kept available for withdrawals, have in their right to resort to the fund pari passu a property right of value and importance, which must be as much within the protection of the Constitution of either the State or the Nation as any other property right; and, if the rights of some should be subordinated to allow full withdrawals by others, contrary to the bargain, there would be an impairment of the obligation of their contract, and a deprivation of their property without due process of law (Const. U. S., art. 1, sec. 10, and Fourteenth Amendment; Declaration of Rights of Maryland, art. 23) ; and except in so far, if at all, as the emergency should bring to bear a power overriding these constitutional prohibitions, the provisions would be invalid.

The constitutionality of the exemptions or preferences was contested below on several grounds not pressed on these appeals, and the court confines its attention to those pressed and necessary to the decisions; and, as the grounds differ in one appeal and another, they must be considered separately, with reference to the exemptions of deposits to which they apply. We take the exemptions up in their order in the statute and in the bill of .complaint, although this is not the order in which the appeals have been entered. ²⁸¹ Exemption- and Priority of Funds- Deposited in the Name of the State. On the question whether a valid exemption or priority for withdrawals of state deposits exists after the enactment of the emergency statute, the judges of this court are equally divided in opinion, and the court will order a reargument of that question. Priority for Deposits hy Baltimore City.

The city appeals from the denial in the decree of the statutory exemption or priority for withdrawals of deposits by it as a “municipality” and “political subdivision” of the State, and also for withdrawals of the amounts of checks in possession of the city given in payment of taxes and specifically excepted by the terms of the statute. Section 7lG. The city, as has been stated, could not share in the prerogative preference of the State at- common law. Frederick County Commrs. v. Page, 163 Md. 619 , 161 A. 182 .

Therefore, if the statutory preference for its deposits is valid, it is unquestionably new, and derived entirely from the statute; and, as it alters the relative rights of the complainants as depositors, impairs the obligations of their contracts, and deprives them of their property without due process of law, it must be invalid, except in so far as an emergency or police power should be found to prevail over the constitutional prohibitions, and to have been properly exercised in this instance. The court has had the benefit of exhaustive, study and argument with respect to governmental power in emergencies, both of that freedom of action which may be viewed as the natural or inevitable response to danger in eatastrophies, as in destroying property to prevent spread of destruction from fire or other agencies, in causing injury or death in self-defence or in efforts at self-preservation, and otherwise (4 Dillon, Mun. Corp. [5th Ed.], sec. 1632; Stone v. Mayor, 25 Wend. [N. Y.] 173; Aitkin v. Village of Wells River, 70 Vt. 308 , 40 A. 829 ; American Print Works v. Lawrence, 21 N. J. Law, 248; Philadelphia v. Scott, 81 Pa. 80 ; Ran ²⁸² dolph, Eminent Domain, secs. 8, 9), and also of the sovereign police power, which may override some of the express constitutional provisions upon occasion (2 Cooley, Const.-Lim. [8th Ed.] 1237; Brown Holding Co. v. Feldman, 256 U. S. 170 , 41 S. Ct. 465 , 65 L. Ed. 877 ; Yeatman v. Towers, 126 Md. 513 , 95 A. 158 ; Ex parte Milligan, 4 Wall. 2, 120 , 18 L. Ed. 281 ; Baring v. Dabney, 19 Wall. 1 , 22 L. Ed. 90 ). It might he difficult to say that the statute here intends to place the priority of city deposits on the ground of necessity in meeting emergencies, for only unsecured deposits are involved, and there is no indication in the record of the amount and importance of these; and the exemption or priority is extended hy the terms of the statute, apparently without reference to emergency needs, alike to all municipalities, counties, towns, taxing districts, political subdivisions of the State, and any officers, boards, commissions, institutions, or other agencies thereof or receivers of banking institutions.

The special exception for the city of amounts represented by checks of individual depositors paid to the city collector on or before Eebruary 28th, however, is expressly stated to have as its purpose the provision of necessary funds to meet certain bonded indebtedness maturing on March 1st, and to enable the city to provide emergency relief for which funds were otherwise not available. The supposition of the statute that there was need of this exception of checks has been denied in argument, it being represented that in point of fact there has been no default in meeting the city’s obligations, and no falling off in emergency relief; hut such contradicting facts are not before the court. If the existence of the emergency and urgent need of immediately available funds for the city be conceded, and if it be conceded that there must be power in the General Assembly to provide some recourse for meeting the need, the recourse adopted is in effect that of commandeering pro tanto, without compensation, funds or rights of the complainants, and others of the small fraction of the citizens who happen to have their money in the same depositary which has the city ²⁸³ deposits, commandeering them, that is, both by the priority to be given the city deposits and by that to be given to withdrawals by taxpaying citizens in favor of the city, so far as their checks may have been drawn upon the one depositary. There is an inequality in favor of the drawers of these checks over others who had not drawn checks to pay their taxes before March 1st, and whose deposits were held subject to restrictions, but the grievance of the complainants would be confined to withdrawals from their depositary.

Even if it is true that the State may under a police or emergency power provide a municipality with needed funds by some method other than that of taxation, a contention on which no decision is necessary now, the exercise of that power must be none the less subject to the requirement of equal treatment of the citizens. “The constitutional guaranty entitles all persons and corporations within the jurisdiction of the state to the protection of equal laws, in this as in other departments of legislation. It does not prevent classifiation, but does require that classification shall be reasonable, not arbitrary, and that it shall rest upon distinctions having a fair and substantial relation to the object sought to be accomplished by the legislation.” Atchison, Topeka & S. F. R. Co. v. Vosburg, 238 U. S. 56 , 35 S. Ct. 675, 676 , 59 L. Ed. 1119 . The court has not been able to agree that this division of depositors into public and private, for the purposes of the emergency act, is based upon a reasonable and constitutional classification, for, assuming that the need of continuing supplies for the exercise of the governmental functions of the city must prevail over the interests of individuals, the only proper classification of individuals to be subordinated and burdened for the purpose would be one of all the citizens, and not one of the small part of them more quickly reached through a preference and priority over private bank deposits. It may be true that the processes necessary to raising money in other ways would have been dangerously slow, and that therefore some such resort as the one adopted was much to be desired on behalf of the city as a ²⁸⁴ whole, but, when the one adopted is referred to the courts to be tested by constitutional requirements, the individuals concerned are entitled to demand the security which those requirements are designed to- afford them, notwithstanding the difficulties it may bring upon the government.

If in pressing emergencies there is disadvantage in unyielding constitutional restraints, it is the price necessarily to be paid for the security sought in them. Eor these reasons the court has concluded that bestowing upon the city a new exemption and priority in the deposits in the Baltimore Trust Company is a partial, unequal appropriation of rights and interests of deferred depositors that cannot be supported under the police power of the State or any emergency power, and must therefore be held invalid; and so much of the decree as is appealed from by the city in Case ISTo. 15 must be affirmed. Priority for Deposits by Bank Commissioner as Receiver bf Insolvent Bank. The bank commissioner, in his capacity as receiver of the Chesapeake Bank of Baltimore, appointed under section 9 of article 11 of the Code, appeals from the denial in the decree of the validity of the statutory exemption from restriction of deposits by him as “the- receiver of any banking institution.” The inclusion of this priority in the statute is founded ultimately upon a theory that the bank commissioner so far represents the State in acting as receiver of a banking institution, that funds deposited by him are public funds entitled to- the State’s prerogative preference; and the court finds this theory untenable.

The commissioner is undoubtedly a state officer, but, when he acts as receiver of the funds of a bank, he is a state officer serving in the place of an ordinary chancery receiver, in that he holds the funds for the ultimate purposes of the litigation exactly as does the receiver of any other private corporation. There is no change in ownership or nature of the funds when he is appointed receiver. Until distributed otherwise, they con ²⁸⁵ tinue to be owned by the corporation; and the corporation may possible resume business with them. Mylander v. Page, 162 Md. 255, 259 , 159 A. 770 ; Gaither v. Stockbridge, 67 Md. 222, 224 , 9 A. 632 , 10 A. 309 ; Miller, Equity Procedure, 718.

And, if there is to be no resumption of the business, and the funds are to be distributed to depositors and debtors of the defunct institution, then they would seem still to be obviously private funds. There would be no sufficient reason in law or in fairness, so far as the court can see, for preferring depositors of the defunct bank to those in a bank in the custody of the commissioner under the present statute. An analogy seems to be furnished in the decisions that trustees or receivers in bankruptcy are not entitled to the prerogative preference of the national government, and that a debt due the Director General of Railroads during war control was not entitled to priority as a debt due to the T nited States. “A deposit in bank of privately owned money does not create a debt to the United States, though such deposit is made by and to the credit of a receiver or trustee of a bankrupt estate. The United States, having no beneficial interest in the moneys deposited, was not financially injured by a breach of the conditions of the bonds in question. * * * The deposits now in question created debts owing by the depository bank to the representatives of the several bankrupt estates, and the moneys deposited, less expenses of administration, belonged to the creditors of those estates, to whom they must ultimately be distributed, the United States not being entitled to receive any part of those moneys, and it would not have been financially harmed if no part thereof had been paid.” Florida Bank & Trust Co. v. Union Indemnity Co. (C. C. A.), 55 Fed. (2nd), 640, 641; Davis v. Pringle, 268 U. S. 315 , 45 S. Ct. 549 , 69 L. Ed. 974 ; Mellon v. Mich.

Trust Co., 271 U. S. 236 , 46 S. Ct. 511 , 70 L. Ed. 924 . We concur with the court below in holding that the priority attempted in the statute is invalid because it is not a preference of State funds, and would violate the constitu ²⁸⁶ tional prohibitions against impairing the obligations of the complainants’ contracts and depriving them of property without due process of law, however the attempted priority for State funds may be regarded. So much of the decree appealed from m Nos. 14 omd 15 affirmedivith costs, and action as to matter of appeal in No. 16 reserved for reargument. On Reargument of No. 16.

Parke, J., delivered the opinion of the Court. After reargument and further consideration, the court is of the opinion that when chapter 46 of the Acts of 1933 became effective there remained no priority, either at common law or by statute, in favor of the moneys of the State on deposit accounts in the banking institutions which are within the purview of this enactment. The circumstances and legal principles which guided and controlled this tribunal in reaching its conclusion will be fully stated because of the importance of the questions involved. Although it is rejected in some jurisdictions, the general doctrine is that the State, on account of its prerogative right under the common law, has a priority over other creditors and depositors in the distribution of the assets of an insolvent bank, subject, however, to all the limitations of the common law, but this prerogative right of the State is not enjoyed by the county or other political subdivision of the State.

Michie on Banks and Banking, vol. 3, sec. 170, pp. 231, 233; sec. 196, p. 278; Frederick County v. Page, 163 Md. 619, 637 , 164 A. 182 ; Glynn County v. Brunswick Terminal Co., 101 Ga. 244 , 28 S. E. 604 ; Bignell v. Cummins, 60 Mont. 294 , 222 P. 797 . This priority, however, is not absolute but potential, and does not become effective until the State has duly asserted its claim by timely action. So, it has been determined that the preferential right of the State may be waived or lost, as ²⁸⁷ where a receiver or the bank commissioner takes charge of the insolvent bank (a), or a valid assignment for the benefit of creditors is executed, before the State takes steps to enforce its right of priority (b). It is, also, held that if the Legislature has adopted other means to secure the State’s revenues, the common law does not apply (c).

(a) National Surety Co. v. Pixton, 60 Utah, 289 , 208 P. 878 ; State v. People’s Savings Bank & Trust Co., 23 N. M. 282, 168 P. 526 . (b) State v. Foster, 5 Wyo. 199 , 38 P. 926 , 29 L. R. A. 226. (c) U. S. Fidelity & Guaranty Co. v. McFerson, 78 Colo. 338 , 241 P. 728 ; In re Central Bank of Wilcox, 23 Ariz. 574 , 205 P. 915 ; United States v. State Bank of North Carolina, 6 Pet. 29 , 8 L. Ed. 308 ; National Surety Co. v. Morris, 34 Wyo. 134 , 241 P. 1063 . On the other hand, it has been held that the common law right of priority exists, unless it is denied by an express statutory provision; and that it is not affected by the fact that a receiver or the state superintendent of banks takes possession of the assets of an insolvent bank.

National Surety Co. v. Pixton, 60 Utah, 289 , 208 P. 878 ; U. S. Fidelity & Guaranty Co. v. Bramwell, 108 Or. 261 , 217 P. 332 ; American Bonding Co. v. Reynolds (D. C.), 203 Fed. 356 ; Ætna Accident & Liability Co. v. Miller, 54 Mont. 377 , 170 P. 760 . The absence of uniformity among the decisions of other jurisdictions renders it all the more important clearly to apprehend the doctrine as formulated and applied in Maryland. As at present advised, the first case relating to the question at bar that is found in the reports of this state is contained in the footnote (e) to Jones v. Jones (1828), 1 Bland, 443 , at page 446. It is there stated that in the year 1713 equity entertained a bill of complaint which was filed by Maurice Birchfield, surveyor general of the Southern District of America, for and on behalf of the King against Joseph Brown, Margaret Brown, Richard Bennett, and Richard Smith, the representatives and debtors of Peregrine Brown late of London, merchant, to recover a debt due from the deceased to the Grown, on the theory that the King’s debt was preferred.

It should be noted, however, that Chancellor ²⁸⁸ Bland, after stating the canse, made the interesting observation that it and other similar cases, which might be adduced from the records, show that the Court of Chancery in Maryland, before the Eevolution, was, in many instances, resorted to as a court of exchequer. See State v. Bank of Maryland (1834), 6 G. & J. 205 , where a bill in equity was filed to enforce the preference of the State. After the establishment of independence, it was early decided that the common law of England had been adopted by the third article of the Declaration of Eights of Maryland, so far as it was not inconsistent with the principles of that instrument and the nature of our political institutions. State v. Buchanan, 5 H. & J. 317, 358 ; Dashiell v. Attorney General, 5 H. & J. 392, 401 .

Consequently, in the cases of State v. Rogers (1786), 2 H. & McH. 198 , and of Murray v. Ridley's Administratrix (1793), 3 H. & McH. 171 , and of Contee v. Chew's Executor (1803), 1 H. & J. 417 , the common law rule was enforced that the State had a preference to be first paid out of the estates of decedents, whenever no liens of other creditors intervened. In the absence of any liens that had been acquired during the life of the debtor, his death determined the classes into which his creditors fall, and assured an equality among his unsecured creditors which was not .disturbed except by the preference in payment accorded to the sovereign, if one among the unsecured class of creditors. Su,pra. So, the death of the debtor having fixed the status of the several creditors, the preference of the State was variously asserted, and her priority recognized.

In the first case cited, it was by a writ of scire facias issued at the instance of the State. In the second case cited, the administratrix was sued on a writing obligatory of her intestate, and she pleaded by way of confession and avoidance that her intestate was indebted to'the State as well as to the plaintiff and to other creditors in unsecured sums but in equal degree, and that the assets of the intestate coming into the hands of the administratrix were insufficient to pay the debts of such general creditors of her intestate. The Attorney General appeared on the ²⁸⁹ part of the State, and the cause was submitted by the State and by the parties in interest on an agreed statement of facts to obtain a determination of the preferences, if any, and the court on the case stated held the State entitled to a priority among the unsecured creditors in equal degree with it. Similarly, in the third case cited there was a preference given to a judgment held by the State over a judgment held by an individual, because the State and the person were creditors of the testator in equal degree.

In this instance, the question arose on the pleadings. A creditor of the decedent issued a scire facias upon his judgment which had been obtained against the testator in his lifetime. The executor of the debtor pleaded a prior judgment of the State against his testator, and that he had no assets in his hands more than sufficient to pay the debt due to the State upon its judgment, and that the assets were liable to the exclusive payment and satisfaction of the debt due the State. The plaintiff’s demurrer to the plea was overruled and judgment given for the defendant.

It will be observed that only in the first decision cited was the State proceeding directly to enforce its prerogative right of preference through any original process. In this instance the writ of scire facias was employed, but in the last two cases the personal representative of the decedent successfully interposed the defense of no assets, because of the State’s right to a priority which would exhaust the estate coming into the personal representative’s hands. So, in Hollingsworth v. Patten’s Administratrix (1793), 3 H. & McH. 125 , on a case stated between a judgment creditor and the debtor’s administratrix, it was held that an administratrix was not justified in her plea of plene adminislravit when it appeared that she had exhausted the personal estate of her intestate by payment of the State’s debt in full, because, if a judgment be obtained against one in his lifetime, his executor or administrator is bound to satisfy it in preference to a debt or specialty passed to the State after such judgment. See Davidson v. Clayland (1805), 1 H. & J. 546, 549 ; Jones v. ²⁹⁰ Jones (1828), 1 Bland, 443 , 446; Hodges v. Mullikin (1831), 1 Bland, 503 , 515; Ridgely v. Iglehart (1832), 3 Bland, 540 , 544.

In the appeal of State v. Bank of Maryland (1834), 6 G. & J. 205 , the right of the State to preference was again presented and the law reviewed and declared. On that appeal the case was of an insolvent bank, which had made a general assignment of all its property to trustees for the equal benefit of all its creditors. After the trustees had converted the assets and had the funds in hand for distribution, the State of Maryland filed a bill on the equity side of the court against the bank and its trustees for the benefit of its creditors. It was alleged by the State that the treasurer of the Western Shore of Maryland had, on October 1st, 1832, in pursuance of a resolution of the General Assembly passed on March 14th, 1828 (No. 59), deposited of the public money of the State the sum of $50,089.96 in the bank at interest, payable on demand, and received therefor a certificate of deposit.

The object of the bill was not to vacate the deeds of assignment to the trustees, but to subject the property and funds assigned to the payment of the entire debt due from the bank to the State, in preference to the other creditors, and to their exclusion, on the theory that the trustees took, and held, the fund subject to a preference in favor of the State. The court, speaking through Buchanan, C. J., declared: “The debt due from the bank to the State, is a debt on simple contract only, and not a lien, as is, and must be conceded. The State therefore having no lien on the property covered by the deed of trust, but a priority only, in the payment of its claim, if that right of priority has not been lost, it is subject, claiming under the common law, to the same common law rule, applicable to the royal prerogative right of priority in England, of the same description.' That right in England is enforced by the process in the writ of extent in chief, or in aid, according to circumstances, and may be here, by proceedings known to our courts. But in either case, to make it available, the proceeding must be resorted ²⁹¹ to, before other vested rights to the property sought to be subjected to the claim are acquired.” Page 227 of 6 G. & J. The decision of the court, therefore, was that the State’s right of priority to the payment- of its debt so long as the title to the property remained in the bank was defeated by the deed of trust.

Bank of Maryland v. Ruff (1836), 7 G. & J. 448, 459, 460 ; Smith v. State (1847), 5 Gill, 45, 50 (claim of State filed after sale under creditor’s bill); In re Green’s Estate (1848), 4 Md. Ch. 349, 356 (claim of State filed after foreclosure sale); State v. Baltimore (1857), 10 Md. 504, 515, 516 (distribution in equity); Orem, Executrix, v. Wrightson (1879), 51 Md. 34, 42 . These illustrative decisions were followed, after a long interval, by the appeal of State v. Williams (1905), 101 Md. 529 , 61 A. 297 , where the claim of the State against an insolvent insurance company for loss on the State’s property which was covered by the company’s insurance, and for unearned premiums, was denied priority of payment from the receivers of the company as against the claims of other creditors, when the State had taken no proceedings to enforce her claim before-the appointment of the receivers. To reach this conclusion the court decided that no distinction was to be made between the effect of a deed of assignment conveying the title of the debtor’s property to a trustee for the equal benefit of all creditors, as in the case of State v. Bank of Maryland, 6 G. & J. 206 , and the decree of court “passed upon a bill praying the dissolution of an insolvent corporation, in which cases the receivers appointed by a court under section 382 of article 23 of the Code of Public General Laws are vested wfith all the estate and assets of every kind belonging to such corporation from the time of their qualifying as receivers, and shall be trustees thereof for the benefit of the creditors of such corporation and its stockholders.” Page 534 of 101 Md., 61 A. 297, 299. Efotwithstanding these decisions and their exposition of the principles upon which they w'ere determined, the right of the State to a priority in payment of its deposits over those of other depositors who had deposits similarly made in a ²⁹² bank in the possession of the bank commissioner of Maryland as receiver — whether by force of Code, art. 11, sec. 9, which authorized the receiver to take possession of such assets under circumstances named, or by force of section 61 of the same article, which authorized the board of directors of the institution to place its affairs and assets in the commissioner’s hands — -was asserted so lately as the case of Public Indemnity Co. v. Page, 161 Md. 239 , 156 A. 791 ; but the State’s right of priority was there held extinguished by such possession, as no proceedings to enforce the right had previously been taken by the State.

In the last mentioned appeal the court considered the argument advanced on the part of the State that the State’s priority is enforceable so long as the debtor retains title to the property sought to be affected by the preference, and that a transfer of title did not take place in the case then at bar as it did under the deed of trust in State v. Bank of Maryland, 6 G. & J. 205 , and by virtue of the statute under which the receiver was appointed in State v. Williams, 101 Md. 529 , 61 A. 297 . In the rejection of this contention this court, speaking through Judge Urner, said: “It does not appear, however, from the opinions in those eases that they depended upon a conclusion that the debtor corporations had completely parted with title to their property. It was because their assets had passed beyond the reach of any lien-creating process that the .State’s claims of priority were disallowed.” The right of the State is “to have its debt first paid out of the property of its debtor remaining in his hands, and no lien standing in the way.” This test barred the right of the State to priority in State v. Bank of Maryland, supra, in State v. Williams, supra, and in Public Indemnity Co. v. Page, supra, because, in the first case, the debtor had no property remaining in his hands, in consequence of a deed of assignment for the benefit of his creditors; because, in the second case, of a receivership for the benefit of creditors and a statutory dissolution of the corporate debtor; and because, in the third case, of a statutory receivership, which, as stated ²⁹³ at large in the opinion written by Judge Urner, transferred the possession of all the debtor’s property to the bank commissioner as receiver, and thereby barred any and all attachments, liens, executions, or distraints of any kind. The receivership further contemplated an administration of the corporate affairs in chancery until the institution could, under prescribed conditions, resume business or be liquidated and its affairs Wound up.

As accurately observed by the court with respect to the last-named case: “When action has been duly taken in pursuance of those provisions, the right of the bank to dispose of its assets is divested as fully, for all practical purposes, as if it had executed a deed of trust for the benefit of its creditors. If the resumption of the business should become feasible, under conditions approved by the bank commissioner, the receivership could be discontinued. Otherwise its object is ‘final liquidation,’ and that could only be prevented by a demonstration of solvency which would wholly obviate such a question as the one now presented.” Pages 246, 247 of 161 Md., 156 A. 791, 794. In answer to the position that it is a general rule, in the interpretation of legislative acts, not to construe them to embrace the powers or prerogatives of sovereignty unless expressly named or included by necessary implication, the reply was that these provisions affecting the right of the State to priority of payment “must also be viewed in the light of other provisions of la.w reflecting upon the State’s attitude in regard to its interests as a bank depositor.” Page 247 of 161 Md., 156 A. 794; State v. Milburn, 9 Gill, 105, 108, 109 ; State v. Balto. & O. R. Co., 34 Md. 344 .

The court then points to the requirement of the Constitution and of statute that deposits of state funds are to be conditioned upon the depositories giving security, satisfactory to the Governor of the State, for the safe-keeping and forthcoming of such deposits when required; to the creation of a department to supervise the control, and assure safe and sound conduct, of the affairs and operations of banks and trust companies created by the State and, in the case of either the dissolu ²⁹⁴ tion of a trust company or of its insolvency, to the preference of all debts or liabilities due or owing by such corporation in any of the specified fiduciary capacities over all debts, liabilities of any nature whatsoever, including salaries and wages of employees and other preferred debts or liabilities. Const., art. 6, sec. 3; Code, art. 95, sec. 32; article 11, and especially sections 6, 46, 48. The court then concluded its opinion with this summation: “Under the established system of supervision of banking institutions which the State has incorporated, it has opportunity and ability to impose conditions tending to safeguard their solvency. In view of that authority, and of the separate and adequate security which is exacted for the State’s deposits, and of the general policy revealed by the various provisions quoted, we are convinced that the Legislature did not intend to reserve, from the effect of the statutory receivership, the right to enforce the priority here invoked.” Page 248 of 161 Md., 156 A. 794.

It is therefore clear that the right of the State to priority of payment over creditors, who, aside from the attribute of . sovereignty, stand with the State in equali jure, is justiciable. The court has jurisdiction to inquire into the existence or extent of any alleged prerogative, it being a maxim of the common law that, ’ “Rex non debet esse sub homine sed sub Deo et lege, quio. lex facit regem.” So the court will take cognizance of this primacy of the sovereign state, whatever the procedure, provided the right is manifest and the court has jurisdiction. Elderton’s Case (1703), 2 Ld. Raym. 978 at 980; 6 Halsbury’s Laws of England (2nd Ed.), secs. 511-513, pp. 443-446.

Wherever the State holds a debt of equal degree with the debts of other creditors, she may assert, and obtain, her prerogative right to priority in payment, provided she has not lost this right of priority by vested rights in the property sought to be subjected to the claim having been previously acquired by other creditors either by the acquisition of a lien or title (a) ; or by the act of the debtor, as where the debtor has made an assignment of his ²⁹⁵ property for the benefit of his creditors (b); or by the transfer of the title and possession of the property of the debtor by operation of law, as in the creation of a statutory receivership for the liquidation of the affairs of an insolvent corporation and its dissolution as a corporation (c), or by the transfer by law of possession and control of the debtor’s property to the State in the statutory receivership of a banking or trust corporation, or by some other form of waiver. Public Indemnity Co. v. Page, 161 Md. 239 , 156 A. 791 . (a) Hollingsworth v. Patten’s Admx., 3 H. & McH. 125 . (b) State v. Bank of Maryland, 6 G. & J. 205 ; Bank of Maryland v. Ruff, 7 G. & J. 448 .

(c) State v. Williams, 101 Md. 529 , 61 A. 297 . With this statement of the principles and rules of law in mind, their application to the present record is apparent. The Emergency Banking Law, or chapter 46 of the Acts of the General Assembly of Maryland of 1933, is of universal application to all banking institutions and credit unions accepting deposits and doing business, and by its provisions simultaneously granted and conferred upon the bank commissioner the custody, control, and management of such institutions and unions within the confines of the state; and directed the commissioner to assume these functions on March 4th, 1933, when the statute became effective as emergency legislation. The act created seventeen new sections to article 11 of the Code, entitled “Banks and Trust Companies.” The complete possession, control, and management transferred by these sections were to continue for one year from the passage of the law, with a provision for an additional year, subject, however, to the privilege of a banking institution earlier becoming exempt from all the terms of the statute whenever the bank commissioner should deem it in the public interest and the Governor and Attorney General bestow their approval.

During this period of possession, management, and control, (1) all of the remedies at law or in equity of any depositor, creditor, stockholder, or other person ²⁹⁶ iii interest, arising out of agreements or transactions made prior to the passage of the act, against these hanking institu.tions, together with the statute of limitations, are suspended; (2) the assets in the possession of the bank commissioner shall be deemed in custodia, legis, and the property of the institutions shall not be sub ject to attachment, execution, distraint, or seizure under judicial process of any kind, (3) except with respect to new deposits and liabilities for transactions subsequent to the passage