Evening star. [volume] (Washington, D.C.) 1854-1972, 1916-05-31


rotary, the opinion says that the bill
docs not state facts sufficient to con-
stitute a cause Of action against him
as for a conspiracy. nor as to anything
done or threatened by him, and must
be dismissed as to him unless he Is a
necessary party IN order to give relet
by way of directing a purely minis
terial act. namely. the payment of in
terest withheld because of the penalty
of $4,000 assessed by the controller.
Considering the power of the con-
troller under section 5211 to call for
special reports from a bank whenever,
in his judgment. the same is necessary
in order to a full and complete knowl-
edge of its condition" the opinion con-
tains a long review of the provisions
of the national bank act, and holds that
an inquiry into the condition of the
bank through special reports might
cover more than mere statement OF
resources and liabilities, and that 1t is
proper to call for information to deter
mine whether or not the bank is being
conducted for the purpose of accom-
plishing the legitimate objects of the
national bank act, just as that inquiry
might be made under one of the sec
tions of the act before the controller
issues certificate permitting the bank
to begin business. The opinion states
that this view is borne out by what is
said in numerous decisions. although
the point has never been directly de-
cided. and also by mere conSldera-
ton of the definitions of the word
condition" given in standard diction-
aries.
Obvious Purposes Of Bank Act.
The opinion then says that in view of
he limit yyEj ~b in
regard to the interference with perform
ance of executive duties and in view of
the obvious purposes of the act. it would
be difficult to suggest any practicable plan
Of conducting the bureau of the controller
Of the currency If his right to act might
be successfully challenged until he could
satisfy the court that the inquiry into
the condition Of the affairs of the bank
was necessary to a knowledge of it's con-
dltion; although a case might perhaps
arise in which the court would interfere.
and that when a report which relates to
the affairs of a bank is called for by a
controller he should not be required to
come into court and. before being per-
mftted to proceed with the inquiry show
to the court all the facts and circum-
stances which have come to his knowledge
in large and important bureau of the
government on which facts and circum-
stances he is authorized to act, thereby
rendering 1t impossible perhaps for him
to save a failure or serious loss or to
apply corrective measures to remedy A
situation having in it elements of dan
ger, unless beyond a reasona BILE doubt
practically II can be said that the infor-
nation is not necessary
The court then examines the spe-
enc charges made against the con-
troller and holds that the information
called for by him in each instance was
such as the statute permitted him to
demand.
Referring to the charges of malice,
1t Is stated that if a controller not
said to be actuated by malice
might take a certain course of action
on given set of facts another con-
troller acting in a similar manner on
similar set of facts did not do so at
CURED into, when he is said to be act
ing maliciously.
overrules Plaintiffs Contention.
The contention of the plaintiff that
the bank is not required to furnish a
special report because the statute
does not say SO in terms is not up
held. the court ruling that as the con-
troller was authorized to make the
demand, a bank is obliged to comply
with 1t.
It is further held that the penalty
might be imposed for failure to make
q special report, a contention to the
contrary having. been made by the
plaintiff owing to the wording of the
section in which penalties were pre-
ecribed. In reaching this conclusion
the court examines previous legislation
in regard to banks. holding that such
course is proper notwithstanding the
fact that the statute is a highly penal
statute and therefore requires strict
construction. and in this respect fol-
lows what was done in a previous case
in the Supreme Court of the United
States in which the national bank act
was being considered.
The next point decided is that the
bank cannot excuse the failure to give
report simply because an officer mi ht
invoke the constitutional provision
against self-incrimination, and the
plaintiff having accepted its charter
under statute giving the right to
call for reports is not deprived of any
OF Its constitutional rights by being
compelled to give them
Point Against Controller.
The court then holds that, notwith-
Standing the controller was entitled to
have special reports giving him the
information sought for. he was not au-
thorized to demand that the reports be
verified by the officers specified in those
demands. who were not the ones
uAHieu III the SeCllOn giving him power
to call for reports. That section pro-
v1des that reports are to be verified
by the oath of the president or cashier
and attested by the signatures of at
least three of the directors. Several
reports were furnished. sworn to by of
ncers OF the bank not mentioned in
the statute. and those which were re-
FUSED were not refused on the ground
that the wrong persons were desig-
mated as the ones to verify them, and
the defendants maintain that for these
reasons there has been such waiver
by the plaintiff as to permit the as
sessment of the penalty to stand. The
court holds that the statute is a
penal statute 1t is to be strictly con-
strued, and that while a person charged
with a crime may waive the doing of
certain things which are prescribed for
his benefit, such the right to have
the names of witnesses furnished him
before going to trial, IL must be held
that a plaintiff seeking to recover a
penalty must prove a case strictly
within the statute.
The next point decided Is that the
court will not undertake to enjoin the
controller from refusing in the future
to approve any application to have the
plaintiff bank made depository for
the funds of another bank, for the rea-
son that TO grant any such relief would
mean nothing less than to require the
controller to approve. and there being
no specific instance of an application
the court TO compel the controller to
1NNo = Nrvr