
    SMYTHE et al. v. COCHRAN et al.
    (No. 1030-5215.)
    Commission of Appeals of Texas, Section B.
    March 20, 1929.
    J. F. Hair and Joe L. Hill, both of San Antonio, for appellants.
    Claude Pollard, Atty. Gen., C. W. True-heart, Asst. Atty. Gen., and L. C. Sutton and John W. Goodwin, both of Austin, for ap-pellees.
   Certified Question.

SPEER, J.

This case is before us upon certified question from the Third Supreme Judicial District, as follows:

“The above cause is pending in this court on appeal from the district court of Bell county. The questions herein certified are material to a decision of the appeal, arise upon the action of the trial court in sustaining demurrers to plaintiffs’ (appellants’) second amended original petition and in dismissing the cause upon refusal to amend, and therefore grow out of the nature and result of the suit and the facts disclosed by the record before us, which, in so far as deemed material to this certificate, follow:
“The amended petition in question is somewhat prolix and involved, and not altogther clear in some respects in its statement of the facts relied upon as basis for the relief sought. As we interpret the petition the controlling facts alleged follow:
“Appellants both before and after February 7, 1925, held unsecured non-interest bearing deposits in the First State Bank of Belton (a guaranty fund bank), which bank was on January 7, 1927, closed and taken charge of by the State Banking Commissioner. Appellants’ claims were duly allowed by the Banking Commissioner as entitled to participation in the guaranty fund. Under pie state banking law as it existed prior to February 7, 1925, the date when chapter 9 of the General Laws of the Regular Session of the 39th Legislature (1925) became effective, there was no provision whereby a bank might change its method of protecting its depositors from the guaranty fund system to the bond security system. That act, however, authorized such' change and under it, the petition alleges, a large number of banks operating under the guaranty fund system changed to the bond security system, and there remains in the treasury a large sum of money (some two million dollars as we interpret the petition) to which the banks so changing their methods would be entitled if their action in so doing legally gave them that right. The petition alleges :
“ ‘That continuously for a period of about five years, prior to January 7th, 1927, the said First State Bank of Belton, was in fact insolvent and that at all times its condition was such that the permitting of it to continue in business jeopardized the financial safety of its depositors and creditors, and that during each and all of said times, the State Banking Commissioner of Texas, knew or by the exercise of due and ordinary diligence could have known that the said First State Bank of Belton was insolvent, and that the business was in such condition that to permit it to continue in business would jeopardize the financial safety of its depositors and creditors.’
“The relief prayed for by appellants (aside from having their claims established as protected depositors of the Belton bank, relief to which they are not entitled because the petition shows that their claims have already been allowed as secured by the guaranty fund) is ‘that said trust fund in the hands of the State Banking Board, as alleged by plaintiffs be declared a trust fund, for the use and benefit of plaintiffs, and that the status of said guaranty and trust fund be judicially determined by a decree of this court; that the amount of the claims of each plaintiff herein be decreed to be paid out of such guaranty and trust fund in due course of the administration of the same.’
“Appellants contend that all deposits in the treasury to the credit of the guaranty fund on February 7, 1925, constituted a trust fund for the benefit of all then secured depositors in banks that thereafter might become insolvent, no part of which deposits could be withdrawn or diverted to any other purpose; and that as to such depositors, that is, depositors on and prior to February 7, 1925, said act in so far as it attempted to authorize withdrawal through the method of change from the guaranty fund plan to the bond security plan was unconstitutional and void as being (1) an attempt to destroy vested rights and (2) retroactive in effect. The petition in substance alleges in this regard that practically all of the solvent banks operating under the guaranty fund method on February 7, 1925, have subsequently thereto changed to the bond security plan; that banks remaining under the guaranty fund plan have become insolvent and have been taken over by the Banking Commissioner, and that the guaranty fund is wholly insolvent, unless the amount still in the treasury which was contributed prior to February 7, 1925, by banks changing to the bond security system be resorted to. This contention is based in the main upon the following language of article 444, R. S. 1925, ‘Said fund shall never be diverted from the purpose specified in this chapter, nor shall it ever be considered state funds.’
“The provision of the act repealing the guaranty fund law (chapter 12, General Laws, Regular Session 40th Legislature), that it shall not affect or impair any right vested or accrued, is also relied upon by appellants in this connection.
“The further contention is made that appellants have a vested right in the guaranty fund on deposit on February 7, 1925, by virtue of their allegations of actual insolvency of the Belton bank.
“The petition discloses two issues of fact for determination in adjudicating the questions presented, namely: First, whether appellants’ claims represent deposits made prior to February 7, 1925; and, second, whether the Belton bank was insolvent as alleged pri- or to that date. But for these fact issues, we are of the view that all questions presented for adjudication can properly be determined in a mandamus proceeding in the Supreme-Court, and that but for these fact issues the district court would be without jurisdiction.
“Because of the public importance of the controversy thus raised, and the evident necessity of having a judicial determination thereof by the Supreme Court as soon as practicable, and because.we are advised that the Supreme Court now has before it mandamus proceedings seeking a distribution of the entire guaranty fund, we deem it advisable-to certify for your decision the following, questions:
“1. Is that portion of the guaranty fund, still in the treasury which was contributed prior to February 7, 1925, by banks that have-subsequently (but prior to January 7, 1927, when the Belton -bank was c-losed by the-Commissioner) changed from the guaranty fund system to the bond security system, a-trust fund for the benefit of all secured depositors whose deposits ante-date the act of February 7, 1925, in the sense that such fund could not be withdrawn by change of plan under the act of February 7, 1925? In other-words, have appellants as holders of secured deposits in the Belton bank ante-dating February 7, 1925, a vested right in the entire fund in the treasury on that date, which vested right could not be affected or impaired by the act of February 7, 1925?
“2. If Question 1 is answered in the negative, then did the fact of actual insolvency of the Belton bank prior to February 7, 1925, create in appellants, as secured depositors prior to that date, such vested right?”

The questions certified are answered in the decisions of Lacy v. State Banking Board. (Tex. Civ. App.) 11 S.W.(2d) 496, and Lydick v. State Banking Board (Tex. Com. App.) 11 S.W.(2d) 505. The opinion of Presiding Judge Harvey on rehearing in the Lydick Case (Tex. Com. App.) 12 S.W.(2d) 954, which has been written since the above certificate was made, renders it unnecessary for us to discuss the questions, and we merely recommend that both questions be answered “No.”

OUREiTON, C. J. The opinion of the Commission of Appeals answering the certified questions is! adopted and ordered certified.  