The opinion
Concurring Opinion.
Treanor, J.
I concur for the following additional reasons: In construing a series of statutes courts should seek to give effect to a clearly expressed general purpose of the General Assembly even though verbal gaps occur and even occasional expressions which, taken alone, are inconsistent with the general purpose or end. Special significance should be attached to provisions which would be rendered meaningless and unintelligible unless the statutes are construed to give full effect to the general purpose. The majority opinion points out “that the subject of banking and similar businesses, their control and supervision, has frequently had the attention of the Legislature, with the result that it continued to affirm in more positive terms its purpose of classification of banking and kindred subjects, and to exclude
all outside interference with the duties imposed upon the bank commissioner, one of which
is, under certain contingencies, to apply for a receiver. ” (Our italics.) The writer of the majority opinion, speaking for this court in
Farmers Deposit Bank
v.
State, ex rel.
(1929), 201 Ind. 117 , 166 N. E. 285 , effectively interpreted the general purpose of our General Assembly in respect to administration of failing or insolvent banks: “The various provisions of our statute on the subject of banking in its various forms in this state evince a legislative policy of administration and supervision peculiar to that class of business and not to release the assets of a member of that class for
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sequestration even to a receiver, until certain circumstances named in the statute are affirmatively declared in a judicial proceeding begun and prosecuted to a final determination by the Banking Commissioner, whose authority in that regard is exclusive.
Ryan
v.
Ray
(1886), 105 Ind. 101 , 4 N. E. 414 .”
There has been a definite legislative policy of increasing the control of the Bank Commissioner over banking institutions, and especially when such institutions are in an insolvent or failing condition. This policy rests upon the conviction that expert, disinterested control and supervision is necessary to protect the interests of depositors and other creditors. Obviously the time when this disinterested, expert control and supervision is most needed is when a banking institution is in a failing or insolvent condition, and it is inconsistent with and subversive of the general purpose of the General Assembly to allow a creditor to take from the bank commissioner all supervision and control by securing the appointment of a receiver. Of course courts must give effect to the clearly expressed intention of the General Assembly, but where there is no clearly expressed intent, we should construe the statute as authorizing, rather than denying, a method which promotes the general legislative purpose, if such construction is reasonable. The following portion of the statute seems quite definite: “And if said bank commissioner shall deem it necessary and expedient he shall thereupon direct said examiner or some other person appointed by him to at once take charge and control of said private bank, bank of discount and deposit, savings bank, loan and trust and safe deposit company, and all the books, notes, cash on hand and other assets, and said bank commissioner shall, if he finds it to be to the best interests of the depositors and creditors of said bank, make application ... for the appointment of a receiver to take charge of said
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private bank, bank of discount and deposit, savings bank, loan and trust and safe deposit company.” §3965 Burns Supp. 1929, Acts 1929 p. 495. We think the reasonable construction of the excerpt just quoted, keeping in mind the general purpose and intent of the General Assembly as revealed in the series of statutes, is that the Bank Commissioner has the exclusive privilege of applying for a receiver for a banking institution which is in a failing or insolvent condition, except as hereinafter pointed out; and that he may, as he did in this case, retain control and supervision through a liquidating committee until in his discretion the situation requires the appointment of a receiver. The following provision is also found in §3965,
supra:
“ If the bank commissioner fails, neglects or refuses for fifteen days to discharge any duty imposed upon him by the provisions of this act, depositors and creditors representing twenty-five per cent of the total deposits and obligations, except stock liability, shall have the right to petition the attorney-general, who shall thereupon perform the duties of the bank commissioner in the particular case and apply for a receiver.” This provision seems to throw considerable light on the legislative intent as respects the privilege of a creditor to apply for a receiver under the general law of receiverships. It enables a group of depositors and creditors representing 25 per cent of the total deposits and obligations to compel the Attorney-General to perform the duties of the bank commissioner and apply for a receiver whenever the bank commissioner “fails, neglects or refuses for fifteen days” to perform any duty imposed upon him by the provisions of §3965,
supra.
It will be noticed that the provision quoted limits the power of the Attorney-General in respect to applications for a receiver. The statute requires the Bank Commissioner to apply for the appointment of a receiver “if-he finds it to be to the best interests of the depositors and
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creditors, ” etc.; while the Attorney-General is required to “perform the duties of the bank commissioner in the particular case and apply for a receiver. ” Clearly the legislative intent is to allow the Bank Commissioner to exercise his discretion in the matter of applying for a receiver and to withhold from the Attorney-General the exercise of any discretion in the matter; thus indicating an intent to leave the control of an insolvent or failing bank indéfinitely in the hands of the Bank Commissioner. Further, there would seem to be-no rational explanation for .requiring a large group of creditors to petition the Attorney-General to take certain action which would immediately result in the appointment of a receiver if the Legislature intended and understood that an individual creditor could apply for a receiver. We assume that the appointing of a receiver brings the winding up of the bank's affairs under the general receivership law and takes all control from the Bank Commissioner as well as from the Attorney-General, in case the latter should be the one applying for the receiver. Consequently, the requirement that depositors and creditors representing 25 per cent of the total deposits and obligations must petition the Attorney-General to take charge in order to obtain a receiver is useless except on the assumption that individual creditors no longer have the privilege of applying for- a receiver in the case of banks in a failing or insolvent condition. For the foregoing reasons I conclude that the Legislature has taken from the courts jurisdiction to appoint receivers for banks unless and until a receivership is applied for in accordance with the provisions of the statute.
When the Legislature makes jurisdiction of a court depend upon certain conditions precedent the court cannot acquire jurisdiction until such statutory conditions have been satisfied. If deciding whether the conditions precedent have been satisfied involves the determination
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of a question of fact, then the trial court should be free to determine the existence or nonexistence of the jurisdictional fact without interference by this court by a writ of prohibition. But when a party comes to this court and shows that he is being subjected to a suit before a trial court which has no power, as a matter of law, to adjudicate the questions involved in the suit, the record disclosing that any action by the trial court on the merits will be a nullity and binding on no one, the writer believes a writ of prohibition should issue, without requiring any showing of irreparable injury other than that involved in being forced to submit to a useless legal proceeding. Such a result is legally sound and certainly accords with common sense and fairness to litigants, and is supported by much respectable judicial authority, as shown by the following excerpts from judicial opinions: “It is insisted, however, that the petitioner has other remedies, i. e.,by appeal, and that therefore the writ should not issue. This argument is not well taken. . . . No good purpose could be served in permitting a disqualified judge to perform certain acts and thereafter declare them void on the ground that he had no jurisdiction to perform the same. ”
Hall
v.
Superior Court of Imperial County
(1925), 198 Cal. 373 , 245 Pac. 814 .
“Respondents also urge that because the plaintiff has the right of appeal from any judgment which may be rendered against him in the action ... he is not entitled to a writ of prohibition in the premises. Although, strictly speaking, such position may be correct, since the identical question which would be presented on appeal has been fully presented to and considered by this court in this proceeding, in the interests of efficiency and the saving of expense and inconvenience to the litigants, it may as well be answered in this proceeding as later on appeal.”
Knox
v.
Superior Court of Riverside County
(1929), 100 Cal. App. 452 , 280 Pac. 375 .
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“It is contended that there is a plain, speedy and adequate remedy by appeal, and for that reason the writ in any event should not issue. But the law appears to be that, where the court is proceeding with a case without first having acquired jurisdiction, it presents a proper case for the invocation of the writ of prohibition. ”
State, ex rel.,
v.
Superior Court of Chelan County
(1913), 76 Wash. 27 , 135 Pac. 494 .
“It is urged that the remedy by appeal from an adverse final judgment is available to the relator, and that the writ of prohibition should be denied for that reason. . . . The existence of a remedy by appeal does not necessarily defeat the right to relief by prohibition. . . . An application of this character is addressed to the sound discretion of this court . . . and whenever it is made to appear, as in this instance, that under no conceivable circumstances can the district court render a valid judgment because of a lack of jurisdiction, the discretion should be exercised in favor of issuing the writ, to the end that litigants may be saved the needless trouble and expense of prosecuting their litigation to a fruitless judgment.”
State, ex rel.,
v.
District Court
(1915), 51 Mont. 503 , 154 Pac. 200 , L. R. A. 1916E 1079.
“Another reason advanced why the writ should not go is that the petitioner had the right of appeal to this court from an adverse judgment in the circuit court, and, therefore, had an adequate remedy through the ordinary channels of the law without resorting to the extraordinary writ sought to be here obtained. . . . But we know of no instance in which the writ has been denied when it appeared that the circuit court was proceeding without authority and the parties had not waived their right to raise the question.”
Fitzpatrick
v.
Young
(1914), 160 Ky. 5 , 169 S. W. 530 .
“ If we are right, the order was wrong and deprived the plaintiff of her right to a trial by jury. It is an order
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that should be dealt with now, before the plaintiff is put to the difficulties and the Courts to the inconvenience that would be raised by a severance that ultimately must be held to have been required under a mistake. It does not matter very much in what form an extraordinary remedy is afforded in this case. But as the order may be regarded as having repudiated jurisdiction of the' first count, mandamus may be adopted to require the District Court to produce and to give the plaintiff her right to a trial at common law.”
Ex parte Simons
(1918), 247 U. S. 231 , 38 Sup. Ct. 497, 62 L. Ed. 1094 .
“The want of authority in the District Court to entertain these proceedings
in personam
under Rule 59 (now 56) brought by the claimants against Mr. Walsh as Superintendent of Public Works of the State of New York is so clear, and the fact that the proceedings are in essence suits against the State without its consent is so evident, that instead of permitting them to run their slow course to final decree, with inevitably futile result, the writ of prohibition should be issued as prayed.”
Ex parte State of New York
(1921), 256 U. S. 490 , 41 Sup. Ct. 588, 65 L. Ed. 1057 .
Having concluded that the Marion Superior Court is without jurisdiction to hear and determine the questions presented by the application for a receiver, I believe the alternative writ of prohibition should be made absolute. The General Assembly of Indiana has specifically enacted that “writs of prohibition may issue out of the Supreme Court to such circuit, superior and criminal courts respectively to restrain and confine such circuit, superior and criminal courts respectively to. their respective lawful jurisdiction. ” §1244 Burns 1926, Acts 1915 p. 207. What this court may do it owes a duty to do when justice requires it to act.