
    JOSEPH M. THORMAN v. STATE BANK OF WAVERLY.
    
    March 26, 1926.
    No. 25,168.
    Act inapplicable to nonconsenting' depositor whose deposit antedated act.
    L. 1925, c. 38, relating to the reorganization of insolvent banks and to the acceptance by creditors of a reduction in the amount of their claims when the holders of 90 per cent of the bank’s indebtedness consent to the reduction, has no application to a nonconsenting depositor whose deposit was made prior to the enactment of chapter 38.
    Banks and Banking 7 C. J. p. 491 n. 41 New.
    Statutes 36 Cyc. p. 1107 n. 31, 32; p. 1205 n. 13; p.' 1207 n. 14, 15; p. 1210 n. 51, 56.
    See note in L. R. A. 1918B, 619. 3 R. C. L. p. 834; 1 R. C. L. Supp. p. 817.
    Action in the district court for Wright county upon a certificate of deposit. Defendant appealed from an order, Olsen, J., sustaining plaintiff’s demurrer to the answer.
    Affirmed.
    
      Henry Spindler, for appellant.
    
      M. J. Harrington, for respondent.
    
      Roberts, Strong, Myers d Oovell, as amici curiae, filed a brief.
    
      
       Reported in 208 N. W. 185.
    
   Lees, C.

Plaintiff sued on a .certificate of deposit issued to him by the defendant bank on December 21, 1923, and made payable 12 months after date. Tbe certificate was presented for payment on -May 22, 1925, and payment was refused.

Tbe answer admitted the allegations of the complaint and alleged as a defense that on September 24, 1924, tbe superintendent of banks closed and took charge of tbe defendant bank; that it remained in bis charge until May 11, 1925, when pursuant to chapter 38, p. 37, L. 1925, it was reopened with bis permission under a “reduction agreement” approved by him, which was executed by more than 90 per cent of tbe depositors and unsecured creditors; that plaintiff is one of tbe depositors who did not join in tbe execution of tbe agreement, but under c. 38 is nevertheless bound by its terms and therefore cannot compel payment of the full amount of bis certificate, but must accept tbe reduced amount agreed upon by tbe creditors who signed tbe agreement. Tbe answer also alleged that defendant is ready and willing to settle with plaintiff according to tbe terms of tbe agreement, but that plaintiff refuses to recognize it as binding upon him.

Plaintiff demurred on tbe ground that tbe answer failed to state facts sufficient to constitute a defense. Tbe court sustained the demurrer and this appeal followed.

Chapter 38 was approved on March 3, 1925. In substance it provides that when tbe superintendent of banks approves of a reorganization plan for tbe restoration of tbe solvency of a bank of which be has taken charge and tbe plan has been adopted by depositors and unsecured creditors representing 90 per cent of tbe amount of tbe claims against tbe bank, then and in such case all other depositors and unsecured creditors shall become subject to tbe terms of the agreement to tbe same extent and with tbe same effect as if they bad joined in tbe execution thereof.

Section 2 of tbe act reads as follows. “All deposits made in any State bank subsequent to tbe passage of this act shall be subject to tbe conditions thereof.”

In view of this provision, we think it is plain that tbe act has no application in tbe case at bar. Plaintiff’s deposit was made more than a year before c. 38 was enacted, and bis rights and those of others similarly situated are not affected by its enactment. A holding to the contrary would not only disregard the plain language of § 2, but would also disregard the well settled rule that a statute is not to be given a retroactive operation, unless it appears by express command or by necessary and unavoidable implication that such was the legislative intention; and the further rule that, where a statute deprives an individual of a legal right he enjoyed when it was enacted, it should be construed to be prospective in its operation unless a contrary construction is essential to give it effect, or its terms are so explicit as to preclude any other interpretation. Builders L. M. L. Ins. Co. v. Compensation Ins. Board, 151 Minn. 427, 186 N. W. 860.

Order affirmed.  