In Re Invol. Dissol. of Battle Creek Bank

575 N.W.2d 356, 254 Neb. 120, 1998 Neb. LEXIS 55
CourtNebraska Supreme Court
DecidedMarch 6, 1998
DocketS-96-062
StatusPublished
Cited by21 cases

This text of 575 N.W.2d 356 (In Re Invol. Dissol. of Battle Creek Bank) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Invol. Dissol. of Battle Creek Bank, 575 N.W.2d 356, 254 Neb. 120, 1998 Neb. LEXIS 55 (Neb. 1998).

Opinions

Per Curiam.

STATEMENT OF CASE

This appeal presents the question of whether an allegedly oppressed minority shareholder may invoke involuntary dissolution proceedings pursuant to Neb. Rev. Stat. §§ 21-2096 to 21-20,104 (Reissue 1991) to dissolve a Nebraska bank. We conclude that such a shareholder may not invoke involuntary dissolution proceedings in the district courts. Rather, the proper venue is the Nebraska Department of Banking and Finance (Department), pursuant to Neb. Rev. Stat. § 8-187 (Reissue 1997).

Section 8-187, which empowers the Department to take possession of a Nebraska bank and conduct its affairs, is inconsistent with § 21-2096, which gives the district courts similar powers. In resolving this inconsistency, we apply well-settled rules of statutory construction, bearing in mind that banks are quasi-public institutions that have long been closely regulated by the Legislature. Legislative intent is not clear as to whether § 21-2096 was intended to implicitly repeal § 8-187. The Legislature clearly intended, however, to give the Department broad authority over Nebraska’s banks. Accordingly, § 8-187 controls, and we affirm.

The plaintiff-appellant, William B. Hengstler, as cotrustee of the A.W. Hengstler testamentary trust, a shareholder of the [123]*123defendant-appellee Battle Creek State Bank, seeks the involuntary dissolution of the bank under the provisions of the Nebraska Business Corporation Act (Act), Neb. Rev. Stat. § 21-2001 et seq. (Reissue 1991 & Cum. Supp. 1994), since rewritten by the Legislature in 1995 as the Business Corporation Act, § 21-2001 et seq. (Reissue 1997). The district court concluded that as the bank is a Nebraska corporation which is chartered as a commercial bank, its dissolution lies exclusively within the jurisdiction of the Department or the Federal Deposit Insurance Corporation (FDIC). It therefore granted the bank’s motion for summary judgment and sustained the demurrers of the other shareholders, the defendantsappellees Battle Creek State Company, William M. Svoboda, Richard B. Grant, Donald E. Smejkal, Lawrence Praeuner, Almira Freudenburg, Robert Doering, Karen Hale, Roger L. Brestel, and Jean Brestel. The appellant successfully petitioned this court to bypass the Nebraska Court of Appeals on the ground that the case presents a question of first impression. He asserts, in summary, that the district court erred in ruling as it did.

PROCEDURAL POSTURE

Although the district court sustained the demurrers of the defendant shareholders, it did not dismiss the suit as to them. As the sustaining of a demurrer not followed by a judgment of dismissal terminating the litigation does not constitute a reviewable final order, we have acquired no jurisdiction over that aspect of the appeal. See Barks v. Cosgriff Co., 247 Neb. 660, 529 N.W.2d 749 (1995). We therefore concern ourselves only with the matter of the summary judgment in favor of the bank.

We also observe that notwithstanding that the appellant is designated as “cotrustee,” the assignments of error raise no issue as to his capacity to bring this action without the participation of any other trustee. As a consequence, we do not concern ourselves with the matter of the appellant’s capacity to maintain this action.

SCOPE OF REVIEW

The dispositive question, whether the Act permits a shareholder to bring an action to involuntarily dissolve a corporation [124]*124chartered as a commercial bank under the state’s banking statutes, Neb. Rev. Stat. § 8-101 et seq. (Reissue 1991 & Cum. Supp. 1994), is one of law. In connection with a question of law, we, as an appellate court, have an obligation to reach an independent conclusion irrespective of the decision made by the court below. Four R Cattle Co. v. Mullins, 253 Neb. 133, 570 N.W.2d 813 (1997); Boettcher v. Balka, 252 Neb. 547, 567 N.W.2d 95 (1997).

ALLEGATIONS ON RECORD

The appellant has alleged that the directors and officers of the bank, which is insured by the FDIC and is a member of the Federal Reserve System, engaged in “improper, oppressive or fraudulent acts, all contrary to the best interests of the Bank” in that they paid excessive amounts of compensation to certain shareholders, directors, and officers; used bonuses as a subterfuge to avoid the payment of dividends otherwise reasonably due to shareholders; and engaged in insider purchases and sales of loans to and from the bank.

ANALYSIS

The appellant argues, inter alia, that because banking corporations are generally subject to the Act, which does not specifically exclude banks from its involuntary dissolution procedures, involuntary dissolution of a bank is proper pursuant to § 21-2096 (Reissue 1991). The bank, however, contends that § 21-2096 is inconsistent with the banking laws contained within chapter 8 of our statutes and thus, that chapter 8 controls. The Department joins in this contention as amicus curiae. Therefore, the issue we must resolve is whether a banking corporation may be involuntarily dissolved under § 21-2096 of the Act despite the fact that such action would conflict with the banking laws.

We begin our analysis by noting that the Act does not prohibit the involuntary dissolution of a corporation. However, a banking corporation is unlike a purely private corporation in that a banking corporation is a quasi-public institution subject to the special banking rules and regulations of the State of Nebraska. § 8-102. It is a quasi-public institution in the sense that “[t]he whole stream of commerce, whether interstate or [125]*125intrastate, largely depends upon [its existence].” United States v. Doherty, 18 F. Supp. 793, 794 (D. Neb. 1937), aff’d 94 F.2d 495 (8th Cir. 1938). Indeed,

“[b]anks are indispensable agencies through which the industry, trade, and commerce of all civilized countries and communities are carried on; the business which they transact, though for private profit, is of a pre-eminently public nature, and is therefore universally recognized as a proper subject of legislative regulation under the police power of the state. . . .”

Placek v. Edstrom, 148 Neb. 79, 92, 26 N.W.2d 489, 497 (1947). Thus, due to the stark contrast in nature between banking corporations and strictly private corporations, public policy dictates that banking corporations should be afforded different treatment with respect to the manner in which they may be involuntarily dissolved. However, even though there are sound public policy arguments for not treating banks the same way as other business corporations, our analysis of the banking statutes and the Act is necessary to the resolution of the instant case.

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In Re Invol. Dissol. of Battle Creek Bank
575 N.W.2d 356 (Nebraska Supreme Court, 1998)

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Bluebook (online)
575 N.W.2d 356, 254 Neb. 120, 1998 Neb. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-invol-dissol-of-battle-creek-bank-neb-1998.