Waite v. Dowley.

County Court, and giving judgment for Dowley against Waite for the amount of the verdict with subsequent interest.

Waite thereupon brought this writ here, assigning for error that the Supreme Court of Vermont erred,

First. In holding that the statute of the State was valid under the Constitution of the United States, as not repugnant to nor in conflict with the acts of Congress providing for the organization and management of National banks, being the acts of March 25, 1863, and June 3, 1864.

Second. In rendering judgment against him for the penalties provided by a statute which is invalid, or repugnant to and in conflict with said acts of Congress.

E. J. Phelps, for plaintiff in error.

Charles N. Davenport, contra.

Mr. Justice MILLER delivered the opinion of the court.

This is & writ of error to the Supreme Court of the State of Vermont, and, as is frequent in writs to the State courts, it is objected that there is no jurisdiction.

The plaintiff in error was cashier of a National bank in that State, and the judgment which this writ brings here for review was rendered against him for penalties imposed by a statute of that State, for his refusal to transmit to the clerk of the town of Brattleboro, a true list of the shareholders of the bank who resided in that town, with the number of shares held, and the amount paid on said shares. The record shows that "the defendant's counsel claimed in defense, that, as said bank was organized under the law of Congress referred to in plaintiff's declaration, the defendant, as such cashier, was amenable to no law but said law of Congress, and that the State legislature had not power to prescribe or define his duties as such cashier." That this proposition raises what is called a Federal question, within the meaning of the act of 1867, admits of no doubt. We are also of opinion that no judgment could have been rendered against the defendant in the State courts, without holding, and in effect deciding that this plea was bad; for, if the State could not impose the duty of making such a list on the cashier, by reason of the act of Congress or the Constitution of the United States, then the defendant was guilty of no offense, and the

Waite v. Dowley.

judgment is for that reason erroneous. This plain proposition cannot be evaded by any opinion delivered by the Supreme Court of that State. This court, therefore, has jurisdiction.

And the single question raised by the record is whether the statute of the State is void which requires the cashier of each National bank within the State, and the cashiers of all other banks, to transmit to the clerks of the several towns in the State in which any stock or shareholder of such banking association shall reside, a true list of the names of such stock or shareholders, with the number of shares standing against the name of such share or stockholder on the books of such banking association, together with the amount of money actually paid in on such share on the first day of April.

The proposition on which this statute is asserted to be void is that Congress has legislated upon the same subject, and that, when there exists a concurrent right of legislation in the States and in Congress, and the latter has exercised its power, there remains in the States no authority to legislate on the same matter. It is not necessary to dispute that proposition, nor, when stated in this general language, can it be controverted. It is none the less true, however, that the line which divides what is occupied exclusively by any legislation of Congress from what is left open to the action of the States is not always well defined, and is often distinguished by such nice shades of difference on each side as to require the closest scrutiny when the principle is invoked, as it is in this case.

We have more than once held in this court that the National banks organized under the acts of Congress are subject to State legislation, except where such legislation is in conflict with some act of Congress, or where it tends to impair or destroy the utility of such banks, as agents or instrumentalities of the United States, or interferes with the purposes of their creation.

This doctrine was clearly and distinctly announced in National Bank v. Commonwealth, 9 Wall. 353; and that case has been often referred to since, with approval, in this court.

The statute of Kentucky required "the cashier of a bank whose stock is taxed to pay into the treasury the amount of the tax duc. If not he was to be liable for the same, with twenty per cent upon the amount." The stock thus to be taxed was, as in the present case, the stock of the shareholders, as authorized by the act of Congress; and that statute went a step further than to require a

Waite v. Dowley.

list of the names of these shareholders and the amount of their stock, and obliged the cashier to collect the tax out of the dividends, and pay it over to the State.

The precise point raised here was taken there and overruled by this court; namely, that the laws of the State could impose no such duty on the banks organized under the laws of the United States. The case is directly and conclusively in point.

It seems to have been supposed that, because Congress has required of each National bank that a list of its stockholders shall be kept posted up in some place in their business office, this covers the same ground as that covered by the Vermont statute.

The act of Congress, however, was merely designed to furnish to the public dealing with the bank a knowledge of the names of its corporators, and to what extent they might be relied on as giving safety to dealing with the bank. It had no such purpose as the Vermont statute, and was wholly deficient in the information needed for the purposes of taxation by the State, as conceded to it by the act of Congress itself.

Some legislation of Vermont was, therefore, necessary to the proper exercise of the rightful powers of the State, and, so far as it required this list, was not in conflict with any provision of the act of Congress.

This leads to the second objection to the validity of the State statute, namely, that its purpose was to tax bank shares at other places than those where the bank was located.

This case does not raise that question.

1. Because the bank whose cashier is the plaintiff in error was located in the town of Brattleboro', and the judgment against him is for refusing to deliver the list of shareholders to the clerk of that town, and not for his refusal to deliver such a list to any other town. The delivery to this clerk of a list of the shareholders in that town would have been in aid of the taxation of the shares at the place where the bank was organized and did business, and such taxation is legal within the narrowest definition of the act of Congress.

2. But if it be true that so much of this statute as is supposed to authorize other towns in which shareholders reside to tax such shares is unconstitutional, that does not invalidate the part of it we have been considering. It will be time enough to decide the provision of the State law authorizing such taxation unconstitu

Casey v. Galli.

tional when an attempt is made to collect such a tax, and the party resisting it shall bring the question here. His rights are not affected by the acts demanded of the cashier; and the latter has no right to make a case for him in advance. This court does not sit here to try most cases to solve a question which may never be raised by any party entitled to raise it.

Judgment affirmed.

CASEY V. GALLI.

(94 U. S. 673.)

Insolvent National banks - Liability of stockholders, how enforced.

The order of the Comptroller of the Currency determining to what extent the individual liability of the stockholders of an insolvent National bank shall be enforced, is conclusive on the stockholders; and the amount bears interest from the date of the order.* Kennedy v. Gibson, ante, p. 17, approved. When the order is to collect the full amount of the par of the stock, the action therefor must be at law, and in such action the stockholder is estopped from denying the existence or the validity of the corporation; the certifi cate of the Comptroller is conclusive as to the validity of the organization of such corporation.

No authority from a State is necessary to enable a State bank to become a National bank

A

CTION at law brought in the Supreme Court of the United States by the Receiver of the New Orleans National Banking Association to enforce the individual liability of the defendant as a stockholder in said bank.

The opinion states the case.

Charles Case, for plaintiff.

J. W. McPherson, for defendant.

Mr. Justice SWAYNE delivered the opinion of the court.

The declaration avers as follows: On and before the third day of June, 1864, the Bank of New Orleans was a banking corporation organized under the laws of the State of Louisiana, and as such carried on the business of banking until about the first day of July, 1871, when the bank, by due proceedings under the act of *This case overrules Bowden v. Morris, 1 Hughes, 378.

Casey v. Galli.

Congress, entitled, "An act to provide a National currency, secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof," approved June 3, 1864, became a National banking association under said act of Congress, and as such took the name and style of the "New Orleans National Banking Association," and carried on the business of banking until the fourth day of October, 1873, when it failed and suspended pay

ment.

Thereupon the Comptroller of the Currency, after due proceedings had, appointed a receiver for the association, and it was put in liquidation under the act of Congress before mentioned and the acts amending it, and the plaintiff is such receiver, being lawfully appointed under the said act. By the conversion of the bank of New Orleans into such banking association, every holder of the shares of the capital stock of said Bank of New Orleans became a shareholder of the capital stock of said New Orleans Banking Association to the amount of his shares, and as such subject to the liabilities imposed by said act of Congress on such shareholders. There is owing by the association to its creditors large sums of money. Its assets are insufficient to pay its debts. It has become

necessary, in order to pay the debts, to enforce the liability of the shareholders. The Comptroller has decided that this shall be done. On the seventh day of June, 1875, by his order in writing, he required the plaintiff, as such receiver, to enforce such liability against each stockholder to the amount of the par value of his stock held at the time of the failure of the association. The capital stock of the association was $600,000, divided into twenty thousand shares of the par value of $30 each.

The defendant is an alien, a subject of the Kingdom of Italy, and vice-consul, etc. At the date of the failure of the association he was the owner of fifty shares of the capital stock of the par value of $30 for each share. By reason thereof he is liable to pay the sum of $1,500. He has been specially requested to pay that sum, and has refused to do so. The plaintiff is, therefore, entitled by force of the statute to recover the said sum of $1,500, with interest at the rate of five per cent per annum.

It was agreed by the parties that demurrers, pleas, replications, and other pleadings might be filed without reference to the order in which they were properly pleadable.

The defendant demurred to the declaration, and assigned the following causes :