Evening star., 1915-05-21
least in this case did not depart from
Subject Under Discussion.

Subject Under Discussion.
Il was discussing, as the stenographie
report of my remarks shows. the un-
fairness of Mr.. Untermyer during his
argument on the facts, in that he did
not fully and fairly state all the facts
with respect to any transaction which
he criticised. On page 462, in the last
sentence of the first paragraph, l said
IF he wanted to be fair. why did
he not say that these loans were all
within the law and all properly Sc
| cured?'
II was then discussing the loans to
the bank officers"
He then took up the consideration of
| the general reports required to be made
, by banks at least five times a year. Mr..
Bailey said:
"Those reports coming at such inter-
walls as the shrewdest of the bank Of
ficials can reasonably anticipate. they
sometimes specially set their house In
order for that occasion, and they might
thus escape the vigilance of the most
vigilant controller; or. even apart from
detecting and preventing an imposition
of that kind. the regular report of con-
dition might disclose such an Ill rela-
tfon between assets and liabilities that
the controllers office would deem it
prudent to exact from that particular
association a more frequent report than
it was thought necessary to demand
from all of the national banks in the
country, and, therefore. for the pur-
pose, and only for the purpose. as l be-
lieve, of enabling the controller of the
currency at any time to call for a re-
port of the condition of a particular
bank, the last sentence of section 5211
was added.
Difference in Language.
Before we can assume that one
sentence in a section means different
thing from the remainder of the sec
tion we must find language which
justifies that assumption.
What is the difference between the
language of section 5211 down to the
last sentence and the language of the
last sentence itself? They relate to
the same matter-the report of con-
dition. The only difference, in my
judgment, is that the preceding part
of the section relates to the general
report of all banks, and the last SEN
cial report of a particular bank.
think if the court will examine that
last sentence carefully, word by word,
there is no escape from that conclu-
sion. 1t reads:
"'The controller shall also have the
Now, in the preceding part 1t had
been provided that these reports should
be furnished within five days after the
receipt of request or requisition
therefor.
THE controller shall also have the
power to call for
What?
For special reports from particular
associations
Plainly. to my mind that means and
only means that the word special is
used in contradistinction to the gen.
eral reports. or used to distinguish
from the general reports, provided for
in the first part of that section.
Cites Mr.. Untermyer's Statement.
I'VE have already disposed of one
contention about the meaning of that
last sentence. Mr.. Untermyer in his
argument dismissed the question Of law
almost with the statement that it was
within the discretion of the controller
to determine the character of the re-
port which he would require; and he
made upon the mind of everybody who
heard him an impression by that as
sertion. because most Of those who
heard him are familiar with the gen.
eral rule. to which there are many ex-
ceptions. that when the law confides a
discretion to an officer the courts are
not authorized to control that descre-
tion; and Mr.. Untermyers speech, SO
far as he devoted himself to the law,
makes 1t plain that he was conten,ling
that the special reports for which a
| controller might call were such as in
his Judgment might relate to the con-
dition of the bank.
But when 1 called attention to the
fact that in his judgment relates to
the time when the controller may make
the call for special report. and not to
the nature of the special report that
contention disappears completely. There
fore We are left not to try this mean
ing by that rule of construction with
respect to the discretion of an execu-
tive officer AS to the time, whether he
shall call for it within one day or
within ten days or within thirty days
after a general report, is by law COM
mitted to his Judgment; and except
where there was an abuse such as some
say must be gross, unless there was
an abuse of that discretion 1t is not
subject to the control Of any court.
An Obvious "Abuse of Power"
IT think If the controller were to call
for a special report every day between
the general reports that would be such
an obvious abuse of his power that 1t
could be restrained. But there Is no
question of that kind in this case.
There Is a question as to the number
of these reports for which he called;
and II we thought 1t necessary to raise
that question we could show that as
many as two reports were called for
| from this bank before the time in
which it was allowed to answer the
| first one had expired. But we leave
that aside as irrelevant in this con-
nection, and we assert confidently that
| the only special report which section
5211 authorizes the controller to de-
| mand is report of it's condition, for
that whole section deals with the ques-
| tion of condition.
1T does not undertake to deal with
| the more serious questions, because
they are dealt with in another manner
Mr. Untermyer resists that construc.
ton of the statute by suggesting thai
If our contention shall prevail yor
might as well dismiss your controller
and your examiner. and leave the banks
to conduct their business according tt
| their own unbridled will. That is g
strange misconception of the law. The
| law has not been enacted with anJ
such disregard of the governments
duty to the people with respect tt
1 corporations which it has created.
Quotes Two Sections.
'Ths government provides in section