delivered the opinion of the court:

The Auditor of Public Accounts contends that he was empowered to file the bill herein by section 11 of chapter 16a, Hurd’s Revised Statutes of 1905, which, so far as material, is as follows: “Should the capital stock of any bank organized under this act become impaired the Auditor shall give notice to the president to have the impairment made good by assessment of the stockholders or a reduction of the capital stock of such bank, if the reduction should not bring the capital below the provision of this section; and if the capital stock of said bank shall remain impaired for thirty days after notice by the Auditor, he shall have power, and it is hereby made his duty to enter suit against each stockholder in the name of the People of the State of Illinois, for the use of said bank; for his or her pro rata proportion of such impairment, and when collected shall pay over the amount thereof to said bank, and the judgment in such case shall be for the amount claimed, with all costs and reasonable attorney’s fees, which fees shall be fixed by the court, or he may, in his discretion, file a bill in the circuit court of the county in which said bank is located, in the name of the People of the State of Illinois, against said bank and its stockholders, for the appointment of a receiver for the winding up of the affairs of said bank. And said court, upon the presentation of said bill, and upon being made satisfied that the capital of said bank has become impaired, shall immediately appoint a competent and disinterested person as such receiver, and shall determine and fix his bonds, and shall prescribe his duties. And said cause shall proceed as other cases in equity.”

• The arguments of counsel have taken a wide range. We find it necessary to discuss but one of the questions presented. The bill does not aver that the Auditor gave notice to the president of the bank to have the impairment of the capital stock made good by the assessment of the stockholders or otherwise, and it is the view of the Attorney General that this notice is not necessary when the Auditor elects to proceed in equity and not at law. In other words, that the giving of the notice is not a condition precedent to filing a bill by the Auditor “for the appointment of a receiver for the winding up of the affairs of said bank.” If this construction be correct the Auditor would have the right to file the bill and it would become the duty of the court to appoint a receiver, however trifling the impairment of the capital might be, without the stockholders having had an opportunity to make good the impairment. The discretion lodged in the Anditor as to the method by which he shall proceed is an arbitrary one, and when the time for its exercise arrives, the manner of its exercise does not depend upon the existence or non-existence of facts which lead him to believe that the financial condition of the bank and its stockholders is such that the impairment of the capital stock cannot be made good, or that the bank is insolvent, or that the bank is about to become insolvent, or that the bank is of .doubtful solvency. We think the plain intent of the statute is, that if the Auditor finds the capital stock impaired he shall give a thirty day notice to the president, or if, as here, it is not feasible to do that, then to the officer or officers upon whom devolves tjae performance of the duties of the president, and in the event that the impairment of the capital stock is not made good during that period, then the Auditor may elect to proceed at law or in equity, as he sees fit. We think it was not the purpose of the legislature to malee it optional with him to give the thirty day notice and proceed at law after the expiration of that period, or to proceed in equity without giving any notice.

It is urged that this construction leaves the Auditor without power to secure the appointment of a receiver for a period of thirty days in cases (such as the present) where it was practically certain that the stockholders would not make good the impairment of the capital stock, and that this would expose the creditors and stockholders to the danger of greater loss than was made necessary by conditions existing when the Auditor first ascertained that the capital stock had been impaired. This argument, while persuasive, is, we think, one that should be addressed to the legislature rather than to the courts. The present General Assembly has passed an act amending section n, supra. (Session Laws of 1907, p. 52.) This amendment, if ratified by a vote of the people, will eliminate the question we have been discussing, in litigation arising after it takes effect. The amendment does not give to the Auditor the power to obtain the appointment of a receiver merely upon discovering an impairment of the capital stock, but provides that if it appears to the Auditor that the conditions are such that the impairment cannot be made good, or that the business of the bank is being conducted in an illegal, fraudulent or unsafe manner, he may at once file a bill for a dissolution of the corporation and the appointment of a receiver. This amendment, which is remedial in character, is, we think, in itself an indication that the legislature did not regard the present law as conferring the right which is claimed for the Auditor. It is perhaps true that the interests of stockholders and creditors would be better conserved if we could give to the statute now in force the construction for which the Attorney General contends, but that we .cannot do without disregarding the plain provisions of the act.

We are of the opinion that the demurrers were properly sustained, for the reason that it did not appear from the bill that the notice required by section n, supra, had been given.

Accordingly, the decree of the circuit court will be affiimed.

Decree affirmed.

dissenting:

We do not concur in the opinion of the majority of the court in this case. The conclusion is reached by construing section ii of chapter 16a of Hurd’s Revised Statutes as requiring the Auditor to give the president of any bank organized under the State Banking act, the capital stock of which has become impaired, thirty days’ notice before filing a bill in equity against such bank and its stockholders for the appointment of a receiver and for winding up the affairs of such bank. The section of the Banking act under consideration is set out in full in the foregoing opinion and need not be here repeated. By reference to said section it will be seen that provision is made for an action at'law against the stockholders and an action in equity against the bank and the stockholders. When the entire section is carefully analyzed, marked differences will appear in the two remedies, both in the means to be employed and the objects to be attained. In the action, at law the suit is against each stockholder for his pro rata share of the impairment of the capital stock, and the judgment, which includes “all costs and reasonable. attorney fees” to be taxed by the court, is for “the use of said bank.” In these suits against the stockholders, which apparently must be several and not one joint action against all, the bank, as a corporate entity, is the real beneficial plaintiff. It is clear to our minds that in providing this legal remedy against the stockholders it was intended that the Auditor should resort to it in all cases where the conditions were such that it would be efficacious. It is not applicable to a case of insolvency where the only thing that can be done is to throw the institution into involuntary liquidation. For this purpose the equitable remedy is provided. The bill in equity is not a suit for the use of the bank, but its manifest purpose is to take the control of the bank out of the hands of its officers and place it under the direction of a court of equity, through its receiver, so that its assets m,ay be collected and distributed to the creditors. It is not to be presumed that the more drastic remedy in equity would be resorted to in any case where the remedy at law would prove adequate. The legislature has left the selection of the remedy to the discretion of the Auditor. It seems that the vesting of this power in the Auditor has excited the apprehension of the majority of this court lest this discretion might be abused and a bill be filed for a receiver when only a slight impairment of capital existed. In our opinion this argument is unsound. Experience has shown that discretion vested in executive officers of the government is not abused more frequently than when vested in judicial officers. Under section 5434 of the statutes of the United States, (1878,) and the amendments thereto, the comptroller of the currency is given much greater power in respect to national banks than section n of our statute confers on the Auditor in regard to State banks. Under the Federal law the comptroller is authorized, when he becomes satisfied that a national bank is not complying with the law by paying its circulating notes, to appoint a receiver and proceed to wind up the affairs of the bank. The comptroller is in such case vested with power far greater than is conferred on the Auditor under the statute, yet we have to learn, in the more than thirty years that this power has resided in the comptroller, of a single instance where it has been unwisely or capriciously exercised. If the comptroller can thus be safely entrusted with such a power over national banks, is it reasonable that the legislature of Illinois would be deterred by the possibility suggested in the majority opinion from conferring the limited and guarded power on the Auditor? We think not. In our opinion the law-making department intended to pass a workable banking law for the government of State banks, and that in the system devised it was intended that the Auditor should exercise powers of the same general character over State banks that the comptroller exercises over national banks. In a case such as the one presented here, where the president of the bank is a defaulter and is a refugee from criminal justice, it is idle to say the Auditor must give thirty days’ notice before he can file a bill to have' a receiver appointed. The facts recited in the bill in this case furnish a striking illustration of how the rights of creditors may be imperiled by so construing the statute as to compel the Auditor to stand idly by for thirty days after he knows the bank is insolvent, thus allowing time enough for the defaulting and dishonest bank officials to complete the work of devastation before any restraining action can be taken. Here the bill charges that the president of the bank, with the aid and connivance of the cashier, had misappropriated about $1,000,000 of the bank’s assets, and when unable longer to conceal the shortage by false and fictitious book-keeping, the president fled the country, and when last heard ‘of was in hiding in Morocco, Africa. It seems to us that the legislature must have had in contemplation such emergencies as exist here, and that to meet them it was intended that the Auditor should have power to proceed at once, and without notice, to file a bill and have a receiver appointed. If it be said that the creditors may proceed by bill on their own account and secure the same relief, we reply that this argument proves too much. If good, it affords a reason for dispensing with State supervision overstate banks entirely. If creditors can take care of themselves, why give the Auditor any power to act in any case, either with or without notice? It is reasonable to suppose that the legislature intended to safeguard the rights of depositors in State banks by conferring a substantial and beneficial power on the Auditor to do something on behalf of the creditors that they could not do for themselves. Creditors may file a bill, it is true, but before doing so they must obtain judgments and have execution returned nulla bona, and it was, no doubt, in part to obviate the delay incident to such a course that the power was conferred on the Auditor to proceed at once when, in his discretion, the safety of depositors indicated such course. The view of the majority virtually defeats this salutary purpose by tying the hands of the Auditor until action on his part will become, in many cases, wholly barren of results.

In the view we take of this statute the thirty days’ notice has no application to the suit in equity but is limited to actions at law against the stockholders. This section of the statute is remedial, and' was adopted by the people for the purpose of placing State banks under the control of the State, in order that they might merit and enjoy the confidence and patronage of the public to the same extent and for the same reasons that national banks do. The opinion of the majority, it seems to us, takes away all the safeguards that the legislature intended to throw around these institutions, and results at once in a great injustice both to the banks and their patrons. In construing a. statute the intent of the legislature is the controlling consideration.

In presenting these dissenting views we have sought to point out briefly some of the reasons which seem to forbid our attributing to the legislature an intent to do a thing so unreasonable and inconsistent as requiring a thirty days’ notice before filing a bill for a receiver. The language of the section does not imperatively demand such construction, and since, as we have sought to show, such construction tends to encourage the very evil intended to be remedied, the construction adopted by the majority should be rejected and one adopted which will accomplish, and not defeat, the legislative intent.