vary, depending upon the result which would be brought about by applying the rule. Putting, however, entirely aside this view, let us consider only the result of the working of the rule on the basis of 20 per cent less than third class. The factors to be considered are these: a, the relation existing prior to the going into effect of Official Classification No. 20; b, the operation of that classification over the whole of Official Classification territory; c, the percentage modification of 20 per cent less than third class as to soap in less than carloads, and also its operation over the whole territory; and, d, the varying rates of charges in the separate spheres into which the Official Classification territory was divided, viz., Central Freight Association territory and the Trunk Line territory. Now, testing the matter by these criteria, does it appear, as contended, that the findings of the Commission and the court, as to resulting preferences and discrimination, are so contradictory and erroneous that we should disregard them? The proposition that they were must rest upon the assumption that the application of a fixed percentage reduction to existing rates whilst it might vary them could not possibly change their relation. But this assumes that the variation which existed between rates in the different spheres of Official Classification territory was only a difference in the sum of the rate prevailing in one territory from that which prevailed in the other as to the same class. But this is a mistake, since there was also a difference in the two separate spheres of territory as to the margin of difference between the different classes of rates governing in the two territories. Thus there was in Central Freight Association territory not only a higher rate for commodities in the third class than prevailed in Trunk Line territory for the same class, but there was also in the Central Freight Association territory a wider difference between the rates governing commodities in the third class and those controlling commodities in the fourth class. It follows from this that where in any given case the 20 per cent reduction was applied to the increased rate which had arisen from having placed less than carload soap in the third class, if the application of the full 20 per cent reduction was not sufficient to reduce the amount to the fourth class, the commodity would pay more than fourth class. In other words, although the commodity in the case stated would get the full benefit of the 20 per cent reduction from the third-class rate, as giving it that benefit did not reduce to the fourth-class rate the commodity would yet pay higher than fourth-class rate. It also follows that if in any case where the 20 per cent reduction was applied, if the result of applying it because of the narrowness of the difference between third and fourth class in that territory operated to reduce the same to the fourth class, the commodity would be left exactly in the class in which it stood before, that is, fourth class. By this it indubitably resulted that in a large degree in one of the subdivisions of the same classification territory soap in less than carloads remained in fourth class, and in the other took a higher class. And this illustrates the correctness of the findings of the Commission and of the court as to the preference resulting from applying to a territory governed by one classification a rule of percentage which, while assuming unity, produced diversity, and which, while asserting equality of class, engendered inequality. Of course, we confine our decision to the case before us. And the views heretofore expressed serve also to dispose of the contention that, although it be conceded that discrimination and preference were created, yet the carrier should not have been ordered to desist from enforcing the modified percentage classification, because the discrimination and preference, if any, were not the result of the operation of that classification, and, moreover, were not repugnant to the act to regulate commerce, because they were simply the consequence of natural competitive advantages enjoyed by shippers in the sphere of the Trunk Line territory, which were not possessed by shippers in that other portion of Official Classification territory, known as Central Freight Association territory. But this simply involves a restatement of the misconception which we have already pointed out. The discriminations and preferences which the Commission and the court below found to exist were results arising from the application to the conditions prevailing in Official Classification territory of the modified percentage classification. In other words, the order forbidding the enforcement of the modified percentage classification was based on the finding that that classification disturbed the rate relations theretofore existing in Official Classification territory and created preferences and discriminations which would disappear if the further enforcement of the changed classification was prevented. This brings us to the final contention made on behalf of the railway companies, viz., that the order of the Commission was not lawful, because not within the power conferred by the act of Congress. This is, we think, largely disposed of by what we have previously said as to the nature and scope of the investigation which the Commission was authorized to make and the redress which it was empowered to give irrespective of the particular character of the complaint by which its power may have been previously invoked. Whatever might be the rule by which to determine whether an order of the Commission was too general where the case with which the order dealt involved simply a discrimination as against an individual or a discrimination or preference in favor of or against an individual or a specific commodity or commodities or localities, or as applied to territory subject to different classifications, and we think it is clear that the order made in this case was within the competency of the Commission, in view of the nature and character of the wrong found to have been committed and the redress which that wrong necessitated. Finding, as the Commission did, that the classification by percentage of common soap in less than carload lots operating throughout Official Classification territory, brought about a general disturbance of the relations previously existing in that territory, and created discriminations and preferences among manufacturers and shippers of the commodity and between localities in such Argument for Plaintiffs in Error. 206 U.S. territory, we think the Commission was clearly within the authority conferred by the act to regulate commerce in directing the carriers to cease and desist from further enforcing the classification operating such results. Affirmed. YATES v. JONES NATIONAL BANK. ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA. No. 230. Argued March 8, 11, 1907. Decided May 13, 1907. If one of the plaintiffs in error does not furnish a cost bond, appear by counsel, or file any brief in this court, he will be presumed to have abandoned the prosecution of the writ and it will be dismissed as to him. Where in the trial and appellate courts an immunity was claimed under § 5239, Rev. Stat., as to the rule of liability to be applied to directors of a national bank and such immunity was denied, this court has jurisdiction to review the judgment under § 709, Rev. Stat., even if in other respects it might not have jurisdiction. Where a statute creates a duty and prescribes a penalty for its non-performance the rule prescribed by the statute is the exclusive test of liability. The National Banking Act as embodied in § 5239, Rev. Stat., affords the exclusive rule by which to measure the right to recover damages from directors, based upon a loss resulting solely from their violation of a duty expressly imposed upon them by a provision of the act; and that liability cannot be measured by a higher standard than that imposed by the act. Where by a statute a responsibility is made to arise from its violation knowingly, proof of something more than negligence is required and that the violation was in effect intentional. 105 N. W. Rep. 287, reversed. THE facts are stated in the opinion. Mr. Halleck F. Rose and Mr. J. W. Deweese, with whom Mr. Frank E. Bishop was on the brief, for plaintiffs in error in this case and in Nos. 231, 232 and 233 argued simultaneously herewith: 1 1 See p. 181, post. 206 U.S. Argument for Plaintiffs in Error. If defendants acting in their official capacity as directors of the Capital National Bank mismanaged the bank and wasted its assets by reason of their neglect so that thereby the bank became insolvent, the damage resulting was an asset of the bank, and could not be recovered by the individual depositors who lost money in the failure of the bank, but only by the bank or its receiver. Conway v. Halsey, 44 N. J. Law, 463, 464; Kennedy v. Gibson, 8 Wall. 506; Cockerell v. Cooper, 86 Fed. Rep. 13; Horner v. Henning, 93 U. S. 228. If otherwise, then every other creditor as well as every stockholder of the bank could, for the same reasons, recover from these defendants, so that (Smith v. Hurd, 12 Metcalf, 371) there might be as many actions and recoveries as there were creditors or shareholders for one and the same default of the directors. This would defeat the policy of the national banking act, providing for a ratable distribution of all of the assets among the various creditors, and the assets in the nature of such damage would be wasted in fruitless and expensive litigation. In the passage of the national banking act Congress provided for one complete system for the government, control and management of national banks. No state legislature, nor any state court, can in any manner interfere with the system adopted, nor the purposes for which national banks are organized, nor divert or change the distribution of the assets of a national bank in a manner that would conflict with the provisions of the national banking act. That which is beyond the plane of state jurisdiction by direct legislation cannot be brought within such plane by indirection, and therefore the directors of a national bank cannot be held by a state court responsible for acts done in their official capacity, so as to enforce a different liability from that imposed upon them by the National Banking Act. If that were permitted it would be possible to control or nullify a United States law and prevent the enforcement of its provisions. In re Waite, 81 Fed. Rep. 371; Cook County National |