Constitutional Law — Self-Executing Provisions — Fundamental ' Statutes—Presumption.—Under the changed system introduced in this state by the. constitution of 1879, the people have inserted fundamental laws of a statutory character which cannot be changed by the legislature; and such statutory provisions inserted in the constitution must be presumed self-executing, when they can be given reasonable effect without the aid of legislation, unless the contrary intent clearly appears.

Id.—Liability of Directors of Corporations—Self-Executing Provision.—The latter part of section 3 of article XII of the constitution, regulating the liability of directors or trustees of corporations and joint-stock associations for all moneys embezzled or misappropriated by them during their several terms of office, is self-executing.

Id.—Procedure Fixed by Law.—It is not necessary to make a constitutional provision self-executing as a fundamental law, that it should fix the method of procedure for its enforcement; but it is sufficient if the Code of Civil Procedure and other remedial laws supply what is necessary.

Id.—Remedy—Bill in Equity—Rights of Creditors.—The proper remedy for the enforcement of the constitutional provision against defaulting directors is by bill in equity, in which all the creditors of the corporation are entitled to be represented and share equally, and in preference to the rights of the stockholders, who are also entitled to recover against the directors, in subordination to the rights of the creditors.

Id.—Suretyship of Directors—Compensation for Loss.—The constitution makes the directors sureties for their fellow-directors and for the officers of the corporation for moneys so misappropriated as to make the officer misappropriating them liable for a violation of the law. The liability imposed upon the directors is not penal in the technical sense, no recovery being allowed as a punishment, but only to compensate for a loss occasioned by misappropriation.

Id.—Fourteenth Amendment of Federal Constitution.—The provision of section 3 of article XII of the state constitution is not in conflict with the fourteenth amendment of the Federal constitution, as taking the property of corporate directors without the due process of law, and as denying to them the equal protection of the law. The directors took office knowing the responsibilities of suretyship which they assumed in so doing, and in the eye of the law did so as freely and voluntarily as if they had signed a bond agreeing to be responsible for the corporate officers.

Id.—Action against Directors of Savings Bank—Unauthorized Misappropriation of Funds.—The directors of a savings bank are liable to an action on behalf of the depositors of the bank for loss caused by the misappropriation of moneys taken out of the bank and applied to unauthorized and illegal purposes in the interest of the directors or of some of them.

Id,—Action by Assignee of Depositors.—An assignee of depositors can maintain an action against the directors of the savings bank in the interest of all the creditors. The debt of a depositor is assignable and does not constitute the assignment of a right of action for fraud, but the debt and the remedies therefor go together with the assignment of the debt. The action is not grounded in fraud, but to enforce the obligation of suretyship of the directors.

Id.—Bights of Subsequent Depositors.—Depositors who become such after the misappropriation may sue to recover upon the liability of the directors. The new depositor becomes such on faith of the presumed assets, and the remedy is for'the benefit of all creditors of the corporation.

Id.—Consent of Stockholders.—The consent of all the stockholders to misappropriation would not bar the creditors, or prevent any creditor from instituting proceedings to enforce the liability of the directors.

Id.—Parties.—The right of any creditor to bring the suit does not depend upon others. If the necessary parties are not brought in, and that fact is made to appear, the court should order them brought in; and the suit should not be dismissed, especially where it does ■ not appear that there are other creditors. The stockholders are proper parties, but, for most purposes, they may be represented in . the action by the corporation.

Id.—Judgment in Favor of Creditor not Bequired.—The claim of a creditor need not be reduced to judgment before he can become a party to the action. Although the action can be maintained only in a court of equity, it is not such a creditor’s bill as must first exhaust all legal remedies before suing in equity.

Id.—Pleading—Averments of Negligence and Fraud.—The fact that there are allegations in the complaint of negligence and fraud is immaterial, if only sufficient facts are alleged to sustain an action upon the constitutional liability.

Id.—Accounting—Specific Demand not Bequired.—A specific demand for an accounting is not required in the action against the directors which, though it implies an accounting, is not primarily brought for that purpose. The accounting is required to distribute the fund which may be recovered by the creditors, and such accounting would be ordered by the court as a matter of course.