paid to the bank the sum of $10,000 in cash for his assessment of 200 per cent., which was deposited in the bank to the credit of an account designated on the books of said bank "Special Assessment Account," and also deposited the sum of $833.32 to the same account as a part of the assessment on certain shares of stock owned by another stockholder, who was unable to pay. On or about the 1st day of May, 1924, the bank charged off on its books $23,648.83 of worthless notes, and charged to the "Special Assessment Account," above referred to, an equal amount. All of the moneys received from the stock holders of the bank because of the assessments were mingled with the general funds of the bank, and were used by the bank in the same manner and for the same purposes as the funds of other depositors. On the 14th day of June, 1924, at which time the bank closed, there was cash on hand of $2,870.70; the total cash on hand and in other banks amounted to $9,771.52; the bank's overdrafts in other banks amounted to $12,197.54; and the total assets of the bank were in excess of $500,000.

The minutes of the meeting of March 31st, which apparently was the last meeting of the stockholders or directors, recites the following: "Motion was made, seconded, and carried, all stockholders present voting 'aye,' that an assessment be levied against all outstanding or issued stock amounting to 100 per cent. for the purpose of charging off a part of the interest earned but not collected account and to create an account to charge slow paper to. 233 shares of stock was represented out of a total of 250. There was also a personal agreement that an additional assessment of 100 per cent. be made at once for the same purpose as given above."

On the 9th day of February, 1923, the plaintiff and the other directors of the bank advised the Comptroller of the Currency that they were familiar with its unsatisfactory condition. The concluding paragraph of their letter is as follows: "In conclusion, we promise to get to work at once to place this bank in the position it should be, and, if necessary, to take out all such paper as might result in a loss, in order that the bank may be in such condition as will meet with the approval of your department."

On April 7, 1923, the board of directors, including the plaintiff, sent another communication to the Comptroller of the Currency with reference to the bank, the concluding paragraph of which is as follows: "Our borrowed money has been considerably reduc

ed, and everything in general looks more favorable to us than it did six months ago, and we believe that we can work out all of this bad paper and leave this bank in a splendid condition within a reasonable time, if we are allowed to take our own methods for it."

On September 1, 1923, another letter was written by the same directors, expressing their familiarity with the affairs of the bank, and replying to criticisms which had been made of certain of its assets. On May 22, 1924, in a letter addressed by the Deputy Comptroller to the board of directors, appears the following statement: "It is noted from the report of an examination of your bank completed March 27th that, through the very commendable action on your part and that of another shareholder in voluntarily paying into the bank $50,000 to take care of losses, the solvency of the bank was restored. This office greatly appreciates the assistance given the bank by these shareholders, who by their loyalty and consideration for the depositors and other creditors, not only saved the bank from failure, but saved the community from a financial disaster with its depressing effects."

The following notation or heading was made upon the "Special Assessment Account" upon the ledger sheet of the bank: "This deposit is made in the Citizens' National Bank of Worthington, Minn., with the understanding that it is to be credited to the 'Special Assessment Account,' and that no part hereof can be withdrawn for any other purpose than the payment of an assessment of 100 per cent. if and when a formal notice of impairment has been received from the Comptroller of the Currency."

The evidence shows that this heading was formulated by the president of the bank and the national bank examiner, who was there March 27th to 31st, making his examination. No formal notice of impairment was received from the Comptroller of the Currency. The plaintiff has brought this action upon the claim that the $10,833.32 which he paid in, and which was credited to this special account, was a special deposit, and that he is entitled to recover it from the bank and its receiver upon that theory.

It is evident that, at the time of the meeting of March 31st, the condition of the bank was understood by the plaintiff and the other directors. It was realized that action must be immediately taken to put the bank in a position which would permit its continued operation; that not less than a 200 per cent. assessment must be made to prevent the clos

ing of the bank. That was the purpose of the assessment. It is obvious that the Comptroller of the Currency gave no formal notice of impairment of capital, for the reason that he had been advised, by the report of examination made at or about the time of the meeting of March 31st, that a voluntary assessment amounting to $50,000 had been made by the stockholders and had been paid in to the bank for the purpose of taking care of losses. That is indicated by his letter of May 22d.

The minutes of the meeting of March 31st state the purposes for which the assessment was made, and would constitute authority to the officer who had charge of the bank to use the fund for those purposes. He was vice president, had attended the meeting, and kept its minutes. The fund was so used. The notes were taken up on May 1, 1924.

A "special deposit" implies the custody of the property without the authority of the custodian to use it, and the right of the owner to receive back the identical thing deposited. Tuckerman v. Mearns, 262 F. 607, 49 App. D. C. 153.

A special deposit is created whenever a particular thing is delivered to a bank to be returned upon demand. In re Mutual Building Soc., Fed. Cas. No. 9,976, 2 Hughes, 374. Money given to a bank for any special purpose is a special deposit. Massey v. Fisher (C. C.) 62 F. 958.

The term "special deposits" includes money, securities, and other valuables delivered to banks to be specifically kept and delivered. Pattison v. Syracuse Nat. Bank, 80 N. Y. 82, 36 Am. Rep. 582.

A depositor has the right to tender a deposit for a special purpose, and, if a bank receives such a deposit, the officers of the bank have no right to divert the deposit to other purposes. Union Trust & Savings Bank v. Southern Traction Co. (C. C. A.) 283 F. 50.

[2] The burden of proving that the funds resulting from the assessments were a special deposit, and so remained, is upon the plaintiff. The minutes of the meeting do not show that such funds were to be treated as a special deposit by the bank, nor do the acts of the plaintiff or the other officers or directors, who had charge of its affairs, with respect to the funds. In the absence of the notation on the ledger sheet, there would be nothing in writing to indicate any agreement on the part of the bank to treat this fund as a special deposit. When the directors received from the Comptroller of the Currency the letter of 11 F. (2d)-25

May 22d, they knew that he was proceeding upon the assumption that the money had been paid in for the purpose of restoring the solvency of the bank. If the fact was that it had been paid in to the bank, and had remained as a special deposit, and could only be used in case all of the stockholders paid their assessments, or a formal notice was received from the Comptroller, it was then the duty of the plaintiff and the other directors to so state. That would have been the proper and natural thing for them to do. The plaintiff had been a banker, was familiar with the affairs of the bank, and ought to have known of the use being made of the funds raised by the assessment.

The facts and circumstances shown by the evidence are consistent with the theory that there was originally an understanding among the stockholders themselves that each should pay in his proportion of the entire assessment, and that the fund should not be used until all had paid; but they are inconsistent with the theory that there was a continuing agreement between the bank and its stockholders that all money paid in on account of the assessment should be held intact as a special deposit until each stockholder had paid his proportion in full, and that, if that was not done, the funds should be returned to the stockholders who had contributed them. The fact that the minutes recite no such understanding, that the funds were mingled with the other funds of the bank, that a portion of them were used to take up bad paper, that the Comptroller of the Currency understood that the money had been used to pay losses, and had so advised the directors, and that no information to the contrary was given him, all point to the conclusion that the deposit was not a special one, but that it was used by the bank, without objection by the plaintiff or the other directors and stockholders, for the primary purpose for which it was contributed.

[3] Even if the plaintiff and the other directors had the right originally to insist that the funds contributed by them be held intact, and only released upon the conditions outlined in the ledger sheet, it was a right which they could waive. They controlled the bank and had access to it at all times. It was their business to keep in touch with it, knowing of its precarious condition. There would be a strong inference that the officer in charge acted properly and with authority. It does not seem possible that the plaintiff can now claim, under all the circumstances, that his bank, without his knowledge and consent,

1. Courts 262(2)—Suit to restrain conservation commissioner from interfering with manufacture of carbon black from natural gas held not mantainable in federal court, since plaintiff had an adequate remedy at law in state courts (Act La. No. 252 of 1924; Judicial Code, § 266 [Comp. St. § 1243]').

Suit for mandatory injunction to restrain conservation commissioner of Louisiana and Attorney General, acting under Act La. No. 252 of 1924, from interfering with plaintiff's erection of factory and manufacture of carbon black from natural gas, wherein it was not alleged that act of denying permits adopted by commissioner was unconstitutional, held not within court's jurisdiction, under Judicial Code, § 266 (Comp. St. § 1243), since plaintiff had an adequate remedy at law in state courts.

5. Courts 284.

Federal court is concerned only when stat

8. Courts 303 (2)-Sult to restrain threatened criminal proceedings by state officers for erection of factory to use natural gas without a permit, in violation of statute, held in excess of court's jurisdiction (Act La. No. 252 of 1924; Judicial Code, § 265 [Comp. St. 1242]; Const. Amend. 11).

Suit to restrain Louisiana conservation commissioner and Attorney General from instituting threatened criminal proceedings for in tended erection of factory and manufacture of carbon black from natural gas without permit, in alleged violation of Act La. No. 252 of 1924, on ground, not that statute was unconstitutional, but that alleged wrongful construction or misapplication of it in refusal of permit amounted to a deprivation of property without due process and denial of equal protection of law, held in excess of court's jurisdiction, under Judicial Code, § 265 (Comp. St. § 1242), prohibiting injunction to stay proceedings in state court, and in view of Const. Amend. 11.

9. Courts 303 (2).

In view of Judicial Code, § 265 (Comp. St. § 1242), only criminal proceedings under void law or ordinance may be enjoined by federal courts.

10. Courts ~303 (2)-Suit to enjoin officers' enforcement of valid statute is against state, but otherwise if statute is unconstitutional (Const. Amend. 11).

If state officers threatening criminal prosecution are proceeding under valid statute, a suit to enjoin them is a suit against state, within Const. Amend. 11; but, if statute be unconstitutional, they act as individual wrongdoers, and suit to enjoin them is not against state.

11. Constitutional law 278(1).

Statute or ordinance is not violative of Const. Amend. 14, § 1, merely because it deprives one of his liberty or property.

12. Constitutional law 212.

Whether classification under police power rests on reasonable public policy and has substantial relation thereto is test of its validity. 13. Evidence 83(1).

Every presumption is in favor of rightful exercise of power by Legislature and officers acting under its authority.

In Equity. Suit by J. Smylie Herkness against Vanentine K. Irion and others. Bill dismissed.

lates federal Constitution.

Harry H. Russell, of Monroe, La., and Saul, Ewing, Remick & Saul, of Philadelphia, Pa., for plaintiff.

Percy Saint, Atty. Gen., of Louisiana, and Edward Rightor, of New Orleans, La, for defendants.

Before FOSTER, Circuit Judge, and GRUBB and BURNS, District Judges.

view, and therefore would justify the interference of this court by issuing an injunction. The relief prayed for is that the commissioner and the Attorney General be enjoined (1) from interfering with the erection of a factory by complainant, and with the subsequent manufacture of carbon black therein; (2) from instituting any suit, civil or criminal, against complainant, by which to penalize him or interfere with such erection of a plant and manufacture.

[1] No proceedings have been filed in the state courts, either by complainant seeking relief to compel the issuance of a permit, or by the Attorney. General charging an offense under the statute. Under these circumstances it is important to determine whether the case is one substantially within the jurisdiction of this court, and properly brought within the purview of section 266 of the Judicial Code (Comp. St. § 1243). [2,3] The owners of land do not own the gas lying below it. Such gas is not susceptible of ownership until reduced to possession. Its extraction and use is subject to regulation, or even complete restriction or suppression, by the state. Frost-Johnson Lumber Co. v. Salling's Heirs, 91 So. 207, 150 La. 756; Bodcaw v. Cox (La.) 106 So. 213; Walls v. Midland Carbon Co., 41 S. Ct. 118, 254 U. S. 300-323, 65 L. Ed. 276. If we should assume that the general unwritten policy or rule of the conservation commissioner, denying permits generally, or that his letter, denying a permit to plaintiff, amounts to an order of an administrative board of the commission, acting under and pursuant to a state statute, within the meaning of section 266 of the Judicial Code, this finding would, of itself, not give the court jurisdiction, because section 266 merely prescribes a method of procedure. Wadley S. R. Co. v. Georgia, 35 S. Ct. 214, 235 U. S. 651, 661, 59 L. Ed. 411.

[4] It is equally true that, if the unconstitutionality of such an order was well pleaded, this court would have jurisdiction and owe a duty to try the question whether a preliminary injunction should issue, despite the fact that the unconstitutionality of the statute is not pleaded. Oklahoma Gas Co. v. Russell, 43 S. Ct. 353, 261 U. S. 293, 67 L. Ed. 659. [5] Of course, the unconstitutionality of either the statute or an administrative order, under the state Constitution, does not concern this court, which is concerned only with violations of the federal Constitution. Cook v. Burnquist (D. C.) 242 F. 321. If the granting of a permit is not discretionary with the conservation commissioner, but a

ministerial duty he owes under the statute, then plaintiff's right to a judicial review by mandamus proceedings would be plain, adequate, and complete. Section 267, Judicial Code (Comp. St. § 1244). If it is discretionary, and the commissioner has mistaken or exceeded his authority, and this results in a prosecution for a misdemeanor, this fact is available as a complete defense. Such judicial review would not be merely nominal and illusory, because the plaintiff is not at the risk of having to pay confiscatory penalties pending a determination of the validity of the order.

[6] If it be said that such remedies at law in the state courts are not adequate, because the remedy at law to be considered must be one within the federal court, where jurisdiction in equity is sought, we are then confronted with the fact that the federal courts have no jurisdiction of an original action to issue a mandamus, except as an ancillary remedy in aid of its jurisdiction, otherwise previously obtained, even though the relief sought concerned a right secured by the Constitution. See Covington & Cincinnati Bridge Co. v. Hager, 27 S. Ct. 24, 203 U. S. 109, 51 L. Ed. 111, holding: "We deem it settled beyond controversy, until Congress shall otherwise provide, that Circuit [District] Courts of the United States have no power to issue a writ of mandamus in an original action brought for the purpose of securing relief by the writ, and this result is not changed because the relief sought concerns an alleged right secured by the Constitution of the United States."

Whilst the complainant prays in terms for a mandatory injunction, restraining the commissioner and the Attorney General from interfering with the erection of a factory, and the subsequent manufacture of carbon black therein, this prayer is, in effect, equivalent to one for the issuance of a writ of mandamus to compel the conservation commissioner to submit to the erection of the factory in question and the manufacture of carbon black, thereby accepting the judgment of this court in lieu of the permit provided for by the statute. See Warner Valley Stock Co. v. Smith, 17 S. Ct. 225, 165 U. S. 28-33, 41 L. Ed. 621; Creager et al. v. Bryan, County Judge, et al. (D. C.) 287 F. 362. [7] The remedy by mandamus is essentially and exclusively, a legal remedy and is unknown to courts of equity. Assessor of Vernon Parish v. Gould (C. C. A. 5th Circuit) 210 F. 894, 127 C. C. A. 553. If, therefore, the remedy is by mandamus, and plaintiff has