Kennedy v. Gibson. ceiver his pro rata share of the indebtedness of the bank, which may remain, after applying to the liabilities all its effects, as required by the act before mentioned, and for general relief. The bill is signed by the special counsel of the receiver. The name of the attorney of the United States does not appear in the case. The defendants demurred. Our opinion will cover all the points brought to our attention by their counsel in the argument, without particularly stating them. The receiver is the agent of the United States, and, according to the 56th section of the act (13 Stat. at Large, 116), this suit should have been conducted by their attorney. But this provision is merely directory. The question which arises is between the United States and its officers. The rights of the defendants are in nowise concerned, and they cannot be heard to make the objection, that this duty of the local law officer of the government has been devolved upon another. It is to be presumed there were sufficient reasons to warrant this departure from the letter of the law. The 50th section of the act provides, that the receiver, under the direction of the Comptroller of the Currency, shall take possession of the books and assets of every description of the association, collect all the debts and claims belonging to it, and may-proceeding in the manner prescribed - sell or compound bad and doubtful debts, and sell all its real and personal property; "and may, if necessary to pay the debts of such association, enforce the individual liability of the stockholders." He is required to pay all the moneys he may realize to the Treasurer of the United States, subject to the order of the Comptroller, and to report to the Comptroller all his proceedings. The Comptroller is required to give notice to all persons having claims against the association to present and prove them, and after making provision for refunding to the United States "any deficiency in redeeming the notes of such association, as mentioned in this act," to make a ratable dividend of the moneys paid over to him by the receiver, "on all claims which have been proved to his satisfaction, or adjudicated in a court of competent jurisdiction." He is to make further dividends, from time. to time, as the means shall come into his hands, "on all claims previously proved or adjudicated, and the remainder of the proceeds, if any, shall be paid over to the stockholders of such association or their legal representatives." Kennedy v. Gibson. The receiver is the instrument of the Comptroller. He is appointed by the Comptroller, and the power of appointment carries with it the power of removal. It is for the Comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce their personal liability, and whether the whole or a part, and if only a part, how much shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. He may make it at such a time as he may deem proper, and upon such data as shall be satisfactory to him. This action on his part is indispensable, whenever the personal liability of the stockholder is sought to be enforced, and must precede the institution of suit by the receiver. The fact must be distinctly averred in all such cases, and if put in issue must be proved. The liability of the stockholders is several and not joint. The limit of their liability is the par of the stock held by each one. Where the whole amount is sought to be recovered the proceeding must be at law. Where less is required the proceeding may be in equity, and in such case an interlocutory decree may be taken for contribution, and the case may stand over for the further action of the court if such action should subsequently prove to be necessary until the full amount of the liability is exhausted. It would be attended with injurious consequences to forbid action against the stockholders until the precise amount necessary to be collected shall be formally ascertained. This would greatly protract the final settlement, and might be attended with large losses by insolvency and otherwise in the intervening time. The amount must depend in part upon the solvency of the debtors and the validity. of the claims. Time will be consumed in the application of these tests, and the results in many cases cannot be foreseen. The same remarks apply to the enforced collections from the stockholders. A speedy adjustment is necessary to the efficiency and utility of the law; the interests of the creditors require it, and it was the obvious policy and purpose of Congress to give it. If too much be collected it is provided by the statute that any surplus which may remain, after satisfying all demands against the association, shall be paid over to the stockholders. It is better they should pay more than may prove to be needed than that the evils of delay should be encountered. When contribution only is sought, all the Kennedy v. Gibson. stockholders who can be reached by the process of the court may be joined in the suit. It is no objection that there are others beyond the jurisdiction of the court who cannot for that reason be made co-defendants. The claims of creditors may be proved before the Comptroller, or established by suit against the association. Creditors must seek their remedy through the Comptroller in the mode prescribed by the statute; they cannot proceed directly in their own name against the stockholders or debtors of the bank. The receiver is the statutory assignee of the association, and is the proper party to institute all suits; they may be brought both at law and in equity, in his name, or in the name of the association for his use. He represents both the creditors and the association, and when he sues in his own name it is not necessary to make either a party to the suit. The 57th secand revises and The 59th section of the act of February 25th, 1863, provides that all suits by or against such associations may be brought in the proper courts of the United States or of the State. tion of the act of 1864 relates to the same subject, enlarges the provisions of the 59th section of the preceding act. In the latter the word "by," in respect to such suits, is dropped. The omission was doubtless accidental. It is not to be supposed that Congress intended to exclude the associations from suing in the courts where they can be sued. The difference in the language of the two sections is not such as to warrant the conclusion that it was intended to change the rule prescribed by the act of 1864. Such suits may still be brought by the associations in the courts of the United States. If this be not the proper construction, while there is provision for suits against the associations, there is none for suits by them, in any court. Theriah v. Hart, 2 Hill, 381, note. The 59th section directs "that all suits and proceedings arising out of the provisions of this act, in which the United States or its officers or agents shall be parties, shall be conducted by the district attorneys of the several districts, under the direction and supervision of the Solicitor of the Treasury." Considering this section in connection with the succeeding section, the implication is clear that receivers also may sue in the courts of the United States by virtue of the act, without reference to the locality of their personal citizenship. United States v. Babbit, 1 Black, 61. Veazie Bank v. Fenno. The bill in the case before us contains no averment of any action by the Comptroller touching the personal liability of the stockholders. The demurrer of the defendants was, therefore, properly sustained, and the decree of the Circuit Court is Affirmed. VEAZIE BANK V. FENNO. (8 Wallace, 533.) Constitutional law - Right of Congress to tax circulation of State banks. The tax of ten per cent imposed by the act of July 13, 1866 (14 Stat. at Large, 146, § 9) on the circulation of State banks used for currency and paid out by the National or State banks is not repugnant to the Constitution, either on the ground that the tax is a direct tax which must be apportioned among the several States, or that the act impairs franchises granted by the State. Congress having undertaken, in the exercise of undisputed constitutional power, to provide a currency for the whole country, may constitutionally secure the benefit of it to the people by appropriate legislation, and to that end may restrain, by suitable enactments, the circulation of any notes not issued under its own authority. N certificate of division from the Circuit Court for Maine. ΟΝ The 9th section of the act of Congress of July 13, 1866 (14 Stats. at Large, 146), amendatory of the Internal Revenue Act, provided as follows: "That every National banking association, State bank, or State banking association, shall pay a tax of ten per centum on the amount of notes of any person, State bank, or State banking association, used for circulation and paid out by them after the 1st day of August, 1866, and such tax shall be assessed and paid in such manner as shall be prescribed by the commissioner of internal revenue." Under this act a tax of ten per cent was assessed upon the Veazie Bank, for its bank notes issued for circulation after the day named in the act. The Veazie Bank was a corporation chartered by the State of Maine, with authority to issue bank notes for circulation, and the notes on which the tax imposed by the act was collected were issued under this authority. The bank refusing to pay the tax, the col Veazie Bank v. Fenno. lector of internal revenue, Fenno, was proceeding to distrain for it, whereupon the bank paid it under protest and brought this action against the collector to recover it. The court below was divided upon the question whether that portion of the act quoted above, was a valid and constitutional law. Reverdy Johnson and Caleb Cushing, for the Veazie Bank. Mr. Hoar, Attorney-General, contra. Mr. Chief Justice CHASE delivered the opinion of the court. The necessity of adequate provision for the financial exigencies created by the late rebellion suggested to the administrative and legislative departments of the government important changes in the systems of currency and taxation which had hitherto prevailed. These changes, more or less distinctly shown in administrative recommendations, took form and substance in legislative acts. We have now to consider, within a limited range, those which relate to circulating notes and the taxation of circulation. At the beginning of the rebellion, the circulating medium consisted almost entirely of bank notes issued by numerous independent corporations, variously organized under State legislation, of various degrees of credit, and very unequal resources, administered often with great, and not unfrequently with little skill, prudence, and integrity. The acts of Congress, then in force, prohibiting the receipt or disbursement, in the transactions of the National government, of any thing except gold and silver, and the laws of the States requiring the redemption of bank notes in coin on demand, prevented the disappearance of gold and silver from circulation. There was, then, no National currency except coin; there was no general (see the act of December 27th, 1854, to suppress small notes in the District of Columbia, 10 Stat. at Large, 599), regulation of any other by National legislation, and no National taxation was imposed in any form on the State bank circulation. The first act authorizing the emission of notes by the treasury department for circulation, was that of July 17th, 1861. 12 Stat. at Large, 259. The notes issued under this act were treasury notes, payable on demand in coin. The amount authorized by it was $50,000,000, and was increased by the act of February 12th, 1862 (id. 338), to $60,000,000. |