Appellee, an Iowa banking corporation, brought suit in the courts of that state to enforce the personal liability of appellant, its stockholder, for an assessment made under the Iowa statutes, which provide for the restoration of any impairment of capital of a bank, by assessment pro rata of the stockholders. The case comes here on appeal, Jud. Code § 237 (28 USCA § 344), from a judgment of the Iowa Supreme Court sustaining the assessment and upholding the statute, which is assailed as infringing the contract and due process clauses of the Federal Constitution (article 1, § 10; Amend. 14). 236 N. W. 10.
On different dates between 1891 and 1917, appellant acquired twenty-six shares of the capital stock of the appellee. Appellee, originally incorporated in 1891, was reincorporated in 1911, appellant acquiring a like number of shares in the new corporation. At that time the liability to assessment of the stockholders in the bank was controlled by sections 1878, 1879, and 1880 of the 1897 Iowa Code, now appearing as sections 9246-9248, 9249, 9250 of the 1927 Iowa Code. These sections authorize the superintendent of banks to require any impairment of capital of a state bank to be restored by an assessment upon its stockholders, as directed by an appropriate order of the superintendent, 'fixing the amount of the assessment.' Section 9247 imposes on the directors a duty to cause the deficiency in capital, thus determined, to be made good 'by a ratable assessment upon the stockholders for the amount of stock held by them,' and requires the proper officers of the bank to give written notice of the assessment, addressed to the several stockholders, which 'shall state the entire sum to be raised, and the amount due from the addressed stockholder.' Section 9248 provides:
'Should any stockholder neglect or refuse to pay his assessment within ninety days from the date of mailing notice thereof, the board of directors shall cause a sufficient amount of the capital stock held by such stockholder to be sold at public auction to make good the deficiency, after giving ten days' notice thereof by personal service or by posting the same in the bank, and publishing it in some newspaper of the county in which the bank is located, which notice shall recite the assessment made, the amount due thereunder from the stockholder, and the time and place of sale; proof of all which may be made in the manner provided in the preceding section.'
After appellant had acquired his stock, a new section was added by the Act of March 13, 1925, c. 181, Iowa Laws 1925, now § 9248-a1 of the 1927 Iowa Code, reading as follows:
'Should the proceeds of a sale under the preceding section of all the stock of any stockholder be insufficient to satisfy his entire assessment liability he shall be personally liable for the deficiency, which may be collected by suit brought in the name of the bank against such stockholder.'
Following the adoption of this later section, the superintendent of banks determined that appellee's capital had been impaired 100 per cent., and directed an assessment accordingly. Acting under section 9248, appellee's directors sold appellant's stock for $1 a share, and the present suit was brought to recover the deficiency.
In answer to the objection that the act of 1925 subjected appellant to an unconstitutional burden, appellee relies on the statutes antedating appellant's acquisition of his stock, as imposing on him personal liability to pay the assessment, without the aid of the quoted provision of the later act. It also argues that, even if there was no such liability under the earlier statutes, the adoption of the act of 1925 was but an exercise of the power reserved to the Legislature by section 12, art. 8 of the Iowa Constitution, and by section 1619 of the 1897 Iowa Code (section 1090, Iowa Code of 1873), providing that 'the articles of incorporation, by-laws, rules, and regulations of corporations hereafter organized * * * shall, at all times, be subject to legislative control, and may be, at any time, altered, abridged, or set aside by law. * * *' It is insisted that the power thus reserved embraces, not only a legislative withdrawal of any grant of immunity to the stockholders of the bank, from liability for its debts, but extends to the imposition on them of a new and continuing liability to pay any assessment levied for the restoration of capital of the bank.