
    Common Pleas Court of Montgomery County.
    Harry Wolfe, On Behalf of Himself and Others v. Ira J. Fulton, Supt.
    
    Decided May 11, 1932.
    
      Harry Wolfe, for plaintiff.
    
      Gilbert Bettman, Att’y. Gen’l. by Hubert A. Estabrook, Sidney G. Kusworm,, D. W. Iddings, special counsel, for defendant.
    
      
       Affirmed by court of appeals January 6, 1933 for reasons given in Judge Snediker’s opinion.
    
   Snediker, J.

This case is before the court on a motion to strike out a large part of the petition, which motion is divided into seven subdivisions, and there is also a motion to strike out the prayer.

The subdivisions of this motion which relate to the petition proper, if they are sustained, leave very little for the court to consider; in fact, nothing that may be called a cause of action. The objection to the different paragraphs of the petition referred to in the motion are, variously, that they are irrelevant, scurrilous, and immaterial, and state no cause of action. That which is sought by the plaintiff is expressed in his prayer and may be divided three ways: First, he prays,

“That the Superintendent of Banks be required to furnish him statements relating to information obtained by the Superintendent in the liquidation, the information, so obtained including a list of withdrawals of funds and any information incidental to such list, and such statements and information as is in his possession or power to acquire by virtue of his office.”

Second,

“That he, the plaintiff, be given authority to bring actions on behalf of depositors against all persons shown by such list to have made questionable or unlawful withdrawals and refuse, upon a demand made by the plaintiff, to return such money.”

Third,

“That he, the plaintiff, be given authority to appear and to be heard upon behalf of depositors in such liquidation proceedings or elsewhere whenever their interests conflict with the trust department or directors and officers, and such further authority as may enable him to faithfully and unapologetically represent depositors on the issues herein referred to.”

If the averments of the petition objected to are irrelevant and immaterial to the plaintiff’s right to the relief for which the plaintiff prays, or, in other words, state nothing which would help the court in affording him that relief, then they have no place in the petition.

The defendant, Ira J. Fulton, as superintendent of banks, is an appointed public official in the department of commerce of Ohio. Acting under authority of law as such officer, he has taken possession of the business and property of the Union Trust Company and is proceeding with the liquidation thereof. While proceeding in that capacity he is bound to observe and obey the provisions of the Code which impose secrecy upon him and upon his assistants. Section 10710-85, General Code, reads:

“Whoever, being the superintendent of banks, a deputy, assistant, or clerk in his employ, or an examiner, fails to keep secret the facts and information obtained in the course of an examination except when the public duty of such officers requires him to report' upon or take official action regarding the affairs of the person, partnership, corporation, company, society, or association so examined * * * shall be fined not more than $500.00 or imprisoned in the penitentiary not less than one year nor more than five years, or both. Nothing in this section shall prevent the proper exchange of information relating to banks and the business thereof with the representatives of the bank departments of other states, with the national bank authorities, or with clearing house commissioners.

“Any official violating any provision of this section, in addition to the penaties therein provided, shall be removed from office and be liable, with his bondsmen, in damages to the person or corporation injured by the disclosure of such secrets.”

When the state banking official takes over a bank he does so under the police power and in the interest of public welfare. The superintendent of banks is given practically entire control over the liquidation of state banks and in such proceeding represents and acts for the bank, its stockholders, and all its creditors. He is not a receiver, is not appointed by the court, and receives compensation from the state. We cannot discharge him. In all of his acts he is subject to the code provisions which give him authority and impose his duties. The jurisdiction of the Common Pleas Court is limited with respect to control.

Among other things, the Legislature has required that from time to time certain statements and reports shall be filed in the office of the clerk of the Court of Common Pleas and some of these must have the approval of the court. Whatever information is allowed by the statutory provisions to be promulgated by the superintendent of banks, he is privileged to divulge in the required official way. It is not incumbent upon him to give to any third person, unconnected with his department any information.. Being a public official, acting in a public capacity, the presumption is always in favor of the correct performance of his duty, and every reasonable intendment will be made in support of that presumption. Stated otherwise, “The presumption is that no official person, acting under oath of his office, will do aught which it is against his official duty to do, or will omit to do aught which his official duty requires him to do.” For the purpose of securing that character of service the superintendent of banks is required to give a bond in the sum of $50,000.00 for the faithful performance of the duties which the law requires of him; If there is any question about a failure on his part to perform his duty in any particular respect, the information of that fact should be brought to the attention of those who have general control of his occupancy of the office. The plaintiff is not entitled to first bring a complaint to this court, except it be with respect to some one or more things which the law requires him, the superintendent of banks, to file here.

So that all of the statements contained in the plaintiff’s petition which are directed to a failure of the superintendent of banks and those acting with him in this litigation to furnish information and to m!ake lists and statements for his use are not pertinent, relevant, or material to the cause of action which this plaintiff seeks to set up.

In the course of his liquidation the superintendent of banks, of necessity requires the advice of counsel. Under the provisions of Sections 333 and 341, General Code, the attorney general is made the chief law officer for the state and all its departments,' and it is provided that no state officer, board, or the head of a department or institution of the state shall employ or be represented by other counsel or attorneys at law. It is in this manner that the superintendent of banks is being here advised, that is, by the attorney general and by such persons as he has appointed his assistants in that behalf. Of course, an assistant, for the time being, acts as the alter ego of the attorney general, and such service is being rendered for and accepted by the superintendent of banks.

If there is any occasion for the bringing of actions against certain depositors who have made withdrawals, it is the duty of the superintendent of banks, upon such ascertainment, to refer those matters to his counsel, the attorney general and his assistants, and it is not within the province of any depositor to interpose by an action for any such purpose. So that such allegations as appear in this petition, looking to that end, are irrelevant and immaterial to the statem’ent of the cause of action. If it so happens that there is anything brought to the attention of this court in which this plaintiff thinks his interests, or the interests of other depositors who are associated with him, require that he be present, or that he file objection to some procedure and. be heard thereon, then and there will be the time and place to make that manifest and secure the permission of the court to appear. That has been done in at least two instances already, the plaintiff has been one of counsel. There is no reason why such an arrangement cannot be amicably continued, in the event it becomes necessary. Otherwise this court may not and ought not to give plaintiff any authority to act as counsel in the litigation filed by the superintendent of banks. In other words, we have no right to make any appointment of that character. Recognition is all we can afford, and that at such times as justice may require.

So that, the allegations which are made the subject of this motion are not relevant or material to any such relief as the plaintiff prays for in this branch of his prayer.

On the whole, we are of the opinion that the motion ought to be taken as a general -demurrer and sustained, which is accordingly done.  