Holmes v. National Bank of Wilmington. Section 57 provides "that suits, actions and proceedings against associations under this act may be had in any Circuit, District or Territorial court of the United States held within the district in which such association may be established, or in any State, county or municipal court in the county or city in which said association is located, having jurisdiction in similar cases." On March 3, 1873, this act was amended, and especially section 57 above, by adding thereto the following proviso: "And provided further that no attachment, injunction or execution shall be issued against such association or its property before final judgment in any such suit, action or proceeding in any State, county or municipal court." 17 Stat. at L. 603. On June 27, 1866, Congress passed an act to provide for the revision and consolidation of the statute laws of the United States. 14 Stat. at L. 74. The commission appointed under this act hav ing reported, an act was passed December 1, 1873, in conformity thereto, known as the Revised Statutes of the United States. In this general act, section 57 of the act of 1869, as amended by sec tion 3 of the act of 1873, was left out as a whole, and section 3 was added to section 52, and made section 5242 of the Revised Statutes. Section 5596 of the Revised Statutes repealed all parts of acts not contained in said revision, and made the sections of the revision applicable thereto, to stand in the place of such repealed provisions. In 1875 an act was passed (18 Stat. at L. 300) correcting errors in the Revised Statutes, by which act section 57 of the act of 1864, left out in the previous consolidation, was restored and made a part of section 5198, which is now as follows: "That suits, actions and proceedings against any association under this title may be had in any Circuit, District or Territorial court of the United States held within the district within which such association may be established, or in any State, county or municipal court in the county or city in which said association is located, having jurisdiction in similar cases." Thus it will be seen that when this action began, section 5198 above, and the proviso to section 57 of the act of 1864, inhibiting attachment before judgment, were of force, the substance of which, for a proper understanding of the question involved, will now be repeated. Section 5198 provides that these associations may be sued in any Circuit, District or Territorial court of the United States held within the district where the association is established, or in Holmes v. National Bank of Wilmington. And sec any State, county or municipal court in the county or city where it may be located, having jurisdiction in similar cases. tion 5242, which is the section rendering transfers of notes in contemplation of insolvency * void by proviso attached thereto, inhibits attachments against these associations before judg ment. * * Now the question is, whether, with these two provisions of force this suit can be maintained in a State court not in the State where the bank is located. This will depend upon the construction which must be given to these two provisions. And, first was it the intent of section 5198 to confer exclusive jurisdiction upon the courts therein named ? and secondly, does the proviso to section 5242 apply to all suits, or only to such suits as might arise in consequence of the attempted transfers of notes made in contemplation of insolvency, which are inhibited in that section, and to which section this proviso is attached? * The eighth section of the act declares that every banking association formed and organized in pursuance thereof shall be a body corporate, possessed with the usual powers of corporations, to-wit, to make contracts, to sue and be sued in any court of law and equity, as a natural person. If the act had stopped at this section, the question presented here could hardly have arisen, as doubtless the jurisdiction of the State courts would have been universally conceded when the action was properly brought in accordance with State laws. Did the subsequent section of the original act, section 57, now section 5198 of the Revised Statutes, conflict with section. 8? It certainly did not in express terms. It is true that jurisdiction is conferred on the courts therein named, but not in language which expressly makes that jurisdiction exclusive. The language employed is, that suits, actions and proceedings against such associations may be had in said courts. The word "may" is a permissive word, not mandatory and not necessarily exclusive. There being no express negation, then, of jurisdiction to the State courts generally, the next question is, has jurisdiction been taken away by implication? It has been held in some courts that the jurisdiction of a State court cannot be taken away by implication. Teall v. Felton, 1 N. Y. 537; s. c., 2 Hill, 264; 26 Wend. 192. The subject-matter involved in this action is an ordinary common-law matter breach of contract. The Circuit Court certainly had jurisdiction of this. The defendant is an artificial be VOL. XLIV-71 Holmes v. National Bank of Wilmington. ing, invested with the rights and privileges, and subject to the lisbilities of a natural person, and ordinarily should stand before the courts as to jurisdiction over its person as other individuals occupying the same position. Our laws have made provision for making such beings parties to actions under certain conditions where their rights are involved, or their obligations are to be enforced, and in the absence of all express exclusion of jurisdiction by the acts of Congress creating them, the implication should be very strong to divest the State courts of their usual functions in such cases. It should be a necessary implication. The argument is, that the enumeration of certain courts in the act was wholly useless, unless a restriction was intended; that these courts would have had jurisdiction without this special grant in common with other courts, and therefore the only purpose of conferring it expressly must have been to confer it exclusively. This argument has much force, but it is not conclusive. The implication arising from it does not appear to be of that strong controlling character sufficient to paralyze the arm of the State courts, and to render these associations free from State control, enabling them to delay and defraud creditors, and as was said by CHURCH, C. J., involving an amount of expense and injustice which we cannot attribute to the intention of the law-making power." The decisions in other States are not uniform on this question. The two most prominent cases in which the question has been discussed are the cases of Crocker v. Marine National Bank, 101 Mass. 240; s. c., 3 Am. Rep. 336; and the case of Cook v. State National Bank, 52 N. Y. 97; s. c., 11 Am. Rep. 667. These cases reached directly opposite conclusions; GRAY, J., in Massachusetts, holding, that by force of the act of Congress, such associations could be sued only in the county or city where the association was established, and CHURCH, C. J., in New York, that an intent to take away jurisdiction from the State courts should not be deduced from the doubtful and ambiguous language employed in the act of Congress. The question has never been made squarely in the Supreme Court of the United States. The nearest approach to it was in the case of Casey v. Adams, 12 Otto, 66, but the decision there is not strictly in point, and the respondent's counsel admits frankly, that the decisions in the other States are in conflict. In the absence of any case in our own courts, of direct decisions in the Supreme Court of the United States, and in the conflict be Holmes v. National Bank of Wilmington. tween the cases in the courts of the States, the respondent, falling back upon general principles, takes the position that these associations are financial agents of the government, established by act of Congress for that purpose; that as such, they are exempt from all control of the State authorities, except so far as may be permitted by Congress. He refers to Van Allen v. Assessors, 3 Wall. 589, in which CHASE, C. J., the author of the system, discussed fully the character of these banks and the purpose of their creation. No doubt they were intended as financial agents of the government, and being created by act of Congress, they should be entirely free from the legislation of the States; that is, the States could not add to or diminish their powers and duties by adverse legislation or cripple them in any way in the exercise of their legitimate functions; but it does not follow that they are to be regarded as wholly exempt in every respect from responsibility to State laws. This would be giving them a much higher position than any other citizen of the United States. This is not necessary to their usefulness or value as financial agents of the government, and they are not entitled to that position. They have power to contract in the several States, to sue in the State courts, and there can be no reason why they should not be exempt from State process when they breach their contracts. There should be reciprocity. In our opinion, the demurrer upon the first ground should have been overruled. The proviso to section 5242 prohibiting attachment proceedings against these associations before judgment rendered, we think, applies to the suits arising out of the matters referred to in that section. The purpose of this proviso being to prevent discrimination between creditors in cases of insolvency or bankruptcy, and this not being a case arising under that section, there was no foundation for the demurrer on that ground. Robinson v. National Bank, 81 N. Y. 392; s. c., 37 Am. Rep. 508. The question of the power of Congress to strip the State courts of jurisdiction in such cases, involving, as in this case, simply a common-law cause of action, is not necessarily involved, and therefore we have not considered it. It is the judgment of this court that the judgment of the Circuit Court be reversed and the case be remanded for a new trial. Judgment reversed. A common carrier is not bound to transport goods at the same rates of charges for all. (See note, p. 568.) THE opinion states the case. The petition was dismissed below. J. S. Muller and J. T. Sloan, for appellants. James Conner, contra. SIMPSON, C. J. The appellants, Benson & Co., filed a petition in the court below in re the above stated causes, praying payment of a certain claim for $668 as rebate freight on six hundred and sixty-eight bales of cotton shipped over the Greenville and Columbia railroad by the petitioners, from Anderson Court House, during the cotton season of 1877-78. This claim was founded upon an alleged. contract between the petitioners and the president and directors of said railroad company acting as receivers under the order of June 18, 1872, known as Judge MELTON's order, and the petition prayed payment out of the "receivers' fund." The contract relied on by the petitioners is not denied, nor is it denied that the petitioners have fully performed their part thereof. The contract is fully set out in the petition. In substance, it is as follows: The petitioners were engaged in buying cotton. They purchased largely in Hartwell, Georgia, and with the view to induce them to ship their cotton, bought at that place, over the Greenville railroad instead of down the Savannah river, Thomas Dodamead, the then superintendent of the said road, proposed that if they would ship all cotton purchased during the season of 1877-78 in Hartwell, by way of Anderson, South Carolina, over said road to Charleston or Augusta, they, the said president and directors, would transport said cotton at the regular rates, the freight to be paid at the regular rates by the consignees, with the understanding however that the petitioners should have refunded to them, at the close of the season, the sum of one dollar per bale so shipped to either point above mentioned. |