Montana Attorney General Opinion 15-571

Opinion No. 571 Banks and Banking-Liquidation of Banks-Fees---tClerk of Court -CoWlty Clerk and RecOl'der -Superintendent of Banks. HELD: Superintendent, of banks and his liquidating agents, in liquidating closed banks, are not acting for the state but for the banks and their cred- itors, and Section 4893, R. C. M., 1921, does not authorize them to receive the services of public officers without pay- ing the statutory fees. July 9, 1934. You have requested an opinion on the question whether the state superintend- ent of banks, or his liquidating agents, While liquidating closed banks are re- quired to pay the statutory fees for filing and recording instruments in OPIKIOKS OF THE ATTORNEY GENERA.L the office of the clerk and recorder. In your opinion to :\11'. Cox. Clerk and Hecorder of Toole County, you have advised that you see no reason why a distinction should be made between the senices of clerks of court and clerks and recorders, and why the latter should charge for their services, as appears to have been 'the practice, while the former are not permitted to do so. 'We are inclined to agree with you that no distinction can be made be- tween the two and that the reason for dunging 01' not charging for such sen'- ices appears to be the same, regardless of the office. Either the door must be closed to all or open to all. It cannot he half open so as to fa \'01' clerks and recorders only, shutting out clerks of the court and other officers. In 1932 Attorney General Foot held that under the provisions of Section 4893 clerks of the district court are not permitted to charge the superintendent of banks when liquidating insolvent hanks, for filing complaints in civil actions and for filing a petition for the purpose of securing the order of the court in con- nection with thc liquidation of a bank. (14 Opinions of the A.ttorney General 221, 247.) In considering whether this rule should be extended to include clerks and recorders it becomes neces- sary to re-examine thc question whether clerks of the court should be permitted to make a charge. During the course of a year no doubt many instruments are filed and recorded by liquidating agents in connection with the affairs of closed banks. In many instances it is necessary for these banks to con- tinue in liquidMion for a number of years. Consequentlr a considerable amount of revenue is involved. The Attorney General in his opinions, cited no cases and so far as we can determine our court has not had oc- casion to consider the question. Before the enactment of Section 121, Chapter 8!1, Laws of 1927, upon complaint of the Attorney General filed in the District. Court, receivers were appointed to liquidate insolvent banks. In such cases the Attorney General was undoubtedly acting for the state and it. was not propel' for the clerk of the district court to charge a filing fee, as Sec- tion 4893 H. C. 1\1. 1921 provides: "No fces must be charged the state, or any county, 01' any subdivision thereof, 01' any public officer acting therefor. 01' in haheas corpus proceedings for offi- cial services rendered, and all such seryices must be performed without the payment of fees." Since the passage of said new bank- ing act, the superintendent of banks may take charge of insolvent banks without such procedure. Possibly the practice of clerks of court not charg- ing fees grew out of the old practice which no doubt was proper. The question is this: Is the super- intendent of banks, (or his liquidatin;,; agents) in filing applications or peti- tions to procure orders of the court authorizing him (or them) to sell. COUl- promise or compound any bad or doubt- ful debts or claim, or in filing com- plaints to foreclose mortgages, to oh· tain judgments on notes, to quiet title, or in any other proceeding, acting for the "state or any county, or any sub- division thereof," within the meanin~ and purpose of Section 4S!l3 abo\'c quoted? Where the statc or county, or any legal subdiyision thereof, or any puhlic officer acting therefor. has occasion to employ the services of any public of- ficeI', obviously no fee should be ex- acted for such services;. Th'e state should have the benefit of the service of its own public officers without pay- ment of statutory fees. Besides. no purpose would be seryed in payin~ money to itself. It is my opinion, how- eyer. that it was the intention of the legislature that the fees referred to in Section 48!l3 should be limited to strictly governmental functions and should not be extended to the liquida- tion of banks, in which case the super- intendent of banks and his liquidatin~ agents, although he, and possibly they. are public officers, act upon statutory authority in the sole interest and for the sole benefit of the insolvent hank find its creditors. There is no reason why such bank and its creditors should have the benefit of the sen'ices of all public officers without char"e or wh\' such hank should not bear ~li cost o'f liquidation under the supervision of the superintendent of banks. In fact. such seems to haye been the intention of the legislature as expressed in the new banking act. Section 130 of said Chapter 89 provides: ;,'rhe compensa tion of the agen ts. 398 OPINIONS OF THE ATTORNEY GENERAL appointed hy the Superintendent, and of attorneys, expert accountants and other assistants. and all e~-penses of liquidation and distribution of a bank whose assets and business shall he taken possession of by the Superin- tendent, shall he fixed by the Superin- tendent, • .. *. W:hen the compensa- tion shall have been so fixed alHl approved and the sen'ices rendered. the same shall be paid out of the funds of such bank in the hands of the Superintendent, and shall be a proper charge and lien on the assets of such hank as herein provided." Section 129, Id., authorize;,; the su- perintendent of banks to emlllo~' agents to assist. him, or act for him and to employ attorneys, etc. He is also au- thorized to employ a genera 1 liquidat- ing agent whose salary and necessary clerical assistance and other expenses incurred "shall be horne equally and ratably by the bank or banks in pro- cess of liquidation under agent's charge in proportion to the total amount of resources of each of such banks." Sec- tion 134, Id., as amended by Chapter 145, Laws of 1931, makes the expense of liquidation, including compensation of agents, employees and attorneys, a proper claim against the assets of the hank. The superintendent of banks may in- stitute, in his own name as superin- tendent, or in the name of the bank. such suits and actions and other legal proceedings as he deems expedient. (Section 127, Id.) It is apparent from a reading of the hanking act that it was the evident intention of the legislature that while the superintendent. of banks and his agents had charge of the liquidation of insolvent banks that each bank should pay all costs and expenses of liquidation. Since such liquidation is for the benefit of the bank and its creditors, we see no reason why it should be otherwise. Morem'er, in ac- tions to foreclose mortgages to secure judgments upon notes and other legal obligations, as well as any other ac- tions and suits in which the superin- tendent of banks may appear as plain- tiff or defendant, (or the name of the bank may so appear) (Section 127, supra) we see no reason why the costs, including clerk's fees should not be taxed against the losing party, or as the court may order. It is my opinion, therefore, in the absence of a clear and unmistakable provision in the statutes to the con- trary, that the superintendent of banks and his liquidating agents in liquidat- ing closed banks, are not acting for the state within the meaning of Section 4898 but, in fact. are acting for the banks and their creditors and that they should be required to payout of the assets of insolvent banks nil statu- tory fees for services rendered to them by public officers.