Evening star., 1915-05-17

i proNal. or tnat defendant mas as yet
lexercised or been called upon to exer-
else the discretion vested in him in
1 that respect. the plaintiff shows no
cause OF action. because the act sought
to be enJoined is one to which the
controller is given power by statute TO
exercise his discretion and which the
: court has no power to review.
=, Third. so far as relates to the as
| sessment of penalties hereafter rms
ground for relief need no longer be
considered. as the controller has de-
clared his intention not to assess such
penalties and waived further answer
I Fourth. to other alleged threaten :
. ed injury: The bill does not contain a
foundation for any such relief. nor is
the relief prayed for such as this court
could grant.
Reasons Cited by Secretary.
! The Secretary of the Trea sury in the
brief filed in his name maintains that
the bill should be dismissed or the in
! junction denied on the following
! grounds:
/ First, so far as relates to the so.o0e
penalty: The complaint fails to state
! any cause of action against nm. IN
! that it does no, show. that he has any
power. authority or jurisdiction with
respect to the doing of any OF the ac's
sought to he enioined. OF with respect
, TO the imposition of assessment OIL
| penalties against which relief is sought
-, under X. 5. sections sell and 5213.
| The suit involves the property OF the
! United States. is suit against tne
! United States. the United States is not
made a party and cannot be made
! party without its consent.
: The plaintiff has an adequate remeoA
at law. because any right the plalntln
has as against the defendant as sci
out hi his bill of complaint is coSni-
Fable exclusively at law and against
the United States.
| The plaintiff shows cause OF ac-
ton. because the assessment OF the
made in the exercise of a discretion
reposed i'm the controller by statute
and the court has no jurisdiction to re-
view the exercise of his discretion
No Jurisdiction, Is Claim.
Second. so far as relates to the ap-
proval of plaintiff depositary for
other banks: The complaint fans 10
state any cause of action against him,
in that it does not show that he mas
any power. authority or jurisdiction
with respect to the doing of any or
the acts sought to be enjoined. or with
respect to the approval OF deposltarH
banks in reserve cities.
The suit to enjoin the controller OF
the currency's refusal to approve the
plaintiff bank as deposltary Tor tne
funds of national banks is p"ematurelS
begun in that it does not appear upon
the face of the complaint that the con
troller of the currency has refused
such approval, or that he has as YET
exercised or been called upon to eHer-
else the discretion in him in that re
spect.
The plaintiff shows no cause of action:
because the act sought to be enJolned
is one to which the controller ~
given power b! statute to exercise ms
discretion and which the court mas no
power to review.
Third. SO lar as relates to the assess
ment of penalties hereafter: The COM
plant fails to state any cause OF ac-
tion against him, since II does hot
show that the Secretary of the Treas
ury has any power. authority. or 1ufls-
diction with respect to the imposltlon
or assessment Of penalties under f. 5.
sections a211 and 5213.
This ground for relief need no longer
be considered, as the controller OF the
currency has declared his intention not
TO assess such penalties and waived
further answer.
Fourth. as to usurpation of powers
and authority of the treasurer: The
complaint fails to state any cause OF
action against him, in that it does not
show that any powers. duties or func-
tions of the Treasurer of the. United
States were in fact performed or
threatened to be performed by. the
secretary of the Treasury unla wfully.
or that he in any way usurped any
power. authority or duty conferred by
law the treasurer. nor does it show
any violation OF any right of the plain
tiff in this respect
Fifth. AS to other alleged threatened
injury. The bill does not contain
foundation for any such relief. nor is
the relief prayed for such as this court
could grant.
Contentious of q. S. Treasurer.
The treasurer Of the United States
maintains that the bill must be dismissed
or the injunction denied on the following
grounds: The suit involves the property
of the United States, is a suit against
the United States, the United States is
not made-a party, and cannot be made a
party without its consent: the plaintiff
has adequate remedy at law by suit
in the Court of Claims; the complaint
states no cause Of action cognizable in
court of equity the acts of the treasurer
sought to be enjoined are prescribed by
law.
The argument presented in the brief
for the controller of the currency, took
up. seriatim, the grounds of defense to
the suit. AS TO the fve-thousand dollar
penalty, it was contended That the is
sue does not involve the controller of the
currency. as. having assessed the penalty.
he has no further function to perform
with regard to enforcing it AS he has
no official power over retaining paying
monies 10 the United States. the prayer
that he be enjoined cannot he applied to
him. The prayer that me assessment be
declared null and Void inasmuch as it
seeks no injunctive or mandatory relief.
also cannot be applied to him
Authorities cited in the brief OF the
Secretary of the Treasury regarding the
lack OF jurisdiction of the court were
referred to and adopted as part of the
reply Of the controller Of the currency
The legality Of the assessment was else
where discussed.
AS to approval Of the plaintiff as a
depository. the brief contends that the
suit is premature. in so far as it at
tempts to enioin the controller Of the
currency from in future refusing to
approve the plaintiff bank as such
depository. AS to other penalties
that may or may not be assessed by the
controller OF the currency./the argu-
rency has waived all penalties that
might have been assessed and has no
intention to make such assessment
Authorization Is Claimed.
Authorization under section SILL Re-
vised Statutes. is claimed in the brief
as to the right of the controller to
call for or attempt to call for any spe-
cial report or reports. The relief sought,
IL is argued, amounts to no more than
a mandate to the executive officials in
volved in future to refrain from violat-