State Ex Rel. Board of Commissioners v. Bank of Southport

CoNNOE, J. The principle that a corporation may lawfully exercise only those powers, which are expressly conferred upon it by its charter, or by the laws in force in the jurisdiction where it was organized, or which are incidental to the exercise of such express powers, has been uniformly and consistently applied by the Supreme Court of the United States to corporations or associations organized under the National Bank Act, U. S. Comp. Stat., 1918, sec. 9657 ei seq. In Central Transportation Co. v. Pullman’s Palace Car Co., 139 U. S., 24, 35 L. Ed., 55, after a full and exhaustive review of authoritative decisions, pertinent to the question involved, Gray, J., says: “The clear result of these decisions may be summed up thus: The charter of a corporation, read in the light of any general laws, which are applicable, is the measure of its powers, and the enumeration of those powers implies the exclusion of all others not fairly incidental. All contracts made by a corporation beyond the scope of those powers are unlawful and void, and no action can be maintained upon them in the courts, and this upon three distinct .grounds: the obligation of every one contracting with a corporation to take notice of the legal limits of its powers; the interest of the stockholders, not to be subjected to risks which they have never *201 undertaken; and above all, tbe interest of tbe public, that tbe corporation shall not transcend tbe powers conferred upon it by:law.” With respect to tbe validity of a contract entered into-by. a corporation, beyond tbe scope of its powers, express or implied, tbe learned Justice further says: “A contract of a corporation, which is ultra vires, in tbe proper sense, that is to say, outside tbe object of its creation as defined in tbe law of its organization, and therefore beyond tbe powers conferred upon it by tbe Legislature, is not voidable only, but wholly void, and of no legal effect. Tbe objection to tbe contract is, not merely that tbe corporation ought not to have made it, but that it could not make it. Tbe contract cannot be ratified by either party, because it could not have been authorized by either. No performance on either side can give tbe unlawful contract any validity, or be tbe foundation -of any right of action upon it. When a corporation is . acting within the general scope of tbe powers conferred upon it by tbe Legislature, tbe corporation, as well as persons contracting with it, may be .estopped to deny that it has complied with tbe legal formalities which are prerequisites to its existence or to its action, because such requisites might in fact have been complied with. But when tbe contract, is beyond tbe powers conferred upon it by existing laws, neither tbe corporation < nor tbe other-party to tbe contract can be estopped, by assenting to it, or:by acting upon it, to show that it was prohibited by those laws.” There is conflict in tbe decisions of tbe courts upon ,the. question as to whether a defense in an action against a corporation, based upon a plea on tbe part of tbe corporation that tbe contract was ultra vires, will be sustained under any and all circumstances. Many- courts bold that the plea will not prevail, whether interposed for or against a corporation, when it would be inequitable or unjust to allow it, as where tbe party seeking to enforce performance of the. contract, has performed on bis part, and tbe other party has received tbe benefit -of .such performance. Some courts, on tbe other band, including tbe Supreme Court of tbe United States, bold, that an ultra vires contract is void, as being beyond tbe powers conferred upon tbe corporation, and that as a rule no action can be maintained upon it. Tiffany on Banks and Banking, p. 290. It is important, therefore, to bear in mind that tbe strict view of tbe doctrine of ultra vires, as declared by tbe Supreme Court of tbe United States, governs tbe contracts of national banks, for tbe reason that such banks are organized under and carry on business pursuant to a Federal statute. See Thompson v. National Bank, 146 U. S., 240, 36 L. Ed., 956. "With respect to tbe power of a national bank to render itself liable upon a contract of suretyship for another, in Merchants Bank v. Baird, 160 Fed., 642, it is said: “A national bank may warrant tbe title to property it conveys, or become liable as an endorser, or guarantor of *202 notes or other obligations which it rediscounts or sells because to do so is incidental to the business it is authorized to transact, and to the disposition of property it has lawfully acquired. But it cannot lend its credit to another by becoming surety, endorser or guarantor for him. It cannot for the accommodation of another endorse his note or guarantee the performance of obligations in which it has no interest. Such an act is an adventure beyond the confines of its charter, and, when its true character is known- no rights grow out of it, though it has taken on in part the garb of a lawful transaction. Commercial National Bank v. Pirie, 27 C. C. A., 171, 82 Fed., 799; Bowen v. Needles National Bank, 36 C. C. A., 553, 94 Fed., 925, ibid., 87 Fed., 430. An act that is void because beyond the power of a national bank cannot be made good by estoppel. McCormick v. Market National Bank, 165 U. S., 41, 41 L. Ed., 817; California National Bank v. Kennedy, 167 U. S., 362, 42 L. Ed., 198.” Conceding that the law with respect to a contract made and entered into by a corporation, ultra vires, is as declared in Central Transportation Co. v. Pullman’s Palace Car Co., supra, in Citizens Central National Bank v. Appleton, 216 U. S., 195, 54 L. Ed., 443, Harlan, J., quotes with approval from the opinion of Gray, J., in that case as follows: “A contract ultra vires being unlawful and void, not because it is in itself immoral, but because the corporation, by the law of its creation, is incapable of making it, the courts, while refusing to maintain any action upon the unlawful contract, have always striven to do justice between the parties, so far as could be done consistently with adherence to law, by permitting property or money parted with on the faith of the .unlawful contract, to be recovered back or compensation to be made for it. In such case, however, the action is not maintained upon the unlawful contract, nor according to its terms, but on an implied contract of the defendant to return, or, failing to do that, to make compensation for, property or money which it has no right to retain. To maintain such an action is not to affirm, but to disaffirm the unlawful contract.” This just and equitable principle is not applicable upon the facts alleged in the complaint in the instant case. The cause of action alleged in the complaint is upon the bonds. The Commercial National Bank of Wilmington cannot be held liable on said bonds, for its execution of said bonds, as surety, was ultra vires. The said National Bank received deposits from the Bank of Southport, in fulfillment of the agreement had and entered into between them. The amount of the sums deposited pursuant to this agreement does not appear from the allegations of the complaint. Nor does it appear therein that the Commercial National Bank, at the date of its insolvency, owed any part of the sums deposited *203 with it, pursuant to tbe agreement, to tbe Bank of Southport. Tbe benefit, if any, wbieb tbe Commercial National Bank received from tbe execution of tbe bonds, as surety, upon tbe facts alleged in tbe complaint, was not sufficient to invoke tbe principle tbat, notwithstanding a contract by a corporation is ultra vires, tbe corporation will not be permitted to retain property or money which it received by reason of tbe unlawful contract. Tbe Commercial National Bank received no money or property from tbe obligee in tbe bond; it received only money deposited with it by tbe Bank of Southport, the principal in said bonds. Tbe said bank has a valid claim against tbe receiver of tbe Commercial National Bank for tbe balance due, if any, on account of said deposits. Tbe relator, tbe board of commissioners of Brunswick County, has a valid claim against tbe Bank of Southport for tbe amount due to Brunswick County by said bank as its financial agent. It is entitled to dividends upon this claim, to be paid by tbe receiver of said Bank of Southport out of assets in its bands, as tbe same may be declared. To permit tbe relator to recover in this action against tbe Commercial National Bank, and its receiver, would not be just or equitable to tbe creditors of said bank or of tbe Bank of Southport. Nor can. such recovery be permitted under tbe law applicable to national banks as declared by tbe Supreme Court of tbe United States. There was no error in tbe judgment sustaining tbe demurrer to tbe complaint. Tbe judgment is in accordance with tbe authorities, and is therefore Affirmed.