he also had the power to carry his judgment into effect. It would be useless to clothe an officer with powers to judicially determine a question, and provide no means for enforcing his judgment. If he closed the bank at a time when it was not insolvent, and when its business was in all things being properly conducted, his action would be simply erroneous, and not in excess of his actual authority." Under the South Carolina statute, a bank examiner although neglectful of duty, is not subject to removal from office by the Governor. State v. Rhame, 92 S. C. 455, 75 S. E. 881, Ann. Cas. 1914B 519, wherein the court said: "The General Assembly in creating the office of State Bank Examiner might have provided that the term should be four years subject to be shortened by removal by the Governor or on the happening of any other contingency. But it did not see fit to do so. The wisdom of legislative action is without the sphere of judicial inquiry. It may be that fixing the term of the office of State Bank Examiner rigidly at four years in the last statute, when by the earlier statute it had been fixed at two years subject to be shortened by removal, was an oversight; or it may be the change was due to an intention to make an officer, clothed with so much discretion and power and charged with such great responsibility in safeguarding, by his supervision, enormous public and private interests, entirely independent of any outside influence and removable only by a civil action under the Code of Procedure. These questions are not for us. The Court can only declare that under the law as it exists the State bank examiner is not subject to removal at the discretion of the Governor." For neglect of duty in not ascertaining the insolvency of a bank, bank commissioners are not liable to prosecution under a criminal statute applying to "district, county, municipal, or township officers." Kilburn v. Law, 111 Cal. 237, 43 Pac. 615. Examiners of National Banks. Congress has made provision for the examination of national banks; and it is not competent for state legislatures to interfere, whether with hostile or friendly intentions, with such banks or their officers in the exercise of the powers bestowed upon them by the Federal government. Easton v. Iowa, 188 U. S. 220, 23 S. Ct. 288, 47 U. S. (L. ed.) 452. The following provisions of the Federal Reserve Act govern examiners of national banks: "Sec. 21. Bank examinations. Section fifty-two hundred and forty, United States Revised Statutes, is amended to read * as follows: The Comptroller of the Currency, with the approval of the Secretary of the Treasury, shall appoint examiners who shall examine every member bank at least twice in each calendar year and oftener if considered necessary: Provided, however, That the Federal Reserve Board may authorize examination by the State authorities to be accepted in the case of State banks and trust companies and may at any time direct the holding of a special examination of state banks or trust companies that are stockholders in any Federal reserve bank. The examiner making the examination of any national bank, or of any other member bank, shall have power to make a thorough examination of all the affairs of the bank and in doing so he shall have power to administer caths and to examine any of the officers and agents thereof under oath and shall make a full and detailed report of the condition of said bank to the Comptroller of the Currency. The Federal Reserve Board, upon the recommendation of the Comptroller of the Currency, shall fix the salaries of all bank examiners and make report thereof to Congress. The expense of the examinations herein provided for shall be assessed by the Comptroller of the Currency upon the banks examined in proportion to assets or resources held by the banks upon the dates of examination of the various banks. In addition to the examinations made and conducted by the Comptroller of the Currency, every Federal reserve bank may, with the approval of the Federal reserve agent or the Federal Reserve Board, provide for special examination of member banks within its district. The expense of such examinations shall be borne by the bank examined. Such examinations shall be so conducted as to inform the Federal reserve bank of the condition of its member banks and of the lines of credit which are being extended by them. Every Federal reserve bank shall at all times furnish to the Federal Reserve Board such information as may be demanded concerning the condition of any member bank within the district of the said Federal reserve bank. No bank shall be subject to any visitatorial powers other than such as are authorized by law, or vested in the courts of justice or such as shall be or shall have been exercised or directed by Congress, or by either House thereof or by any committee of Congress or of either House duly authorized. The Federal Reserve Board shall, at least once each year, order an examination of each Federal reserve bank, and upon joint application of ten member banks the Federal Reserve Board shall order a spe cial examination and report of the condition of any Federal reserve bank. Sec. 22. No member bank or any officer, director, or employee 183 Mich. 200. thereof shall hereafter make any loan or grant any gratuity to any bank examiner. Any bank officer, director, or employee violating this provision shall be deemed guilty of a misdemeanor and shall be imprisoned not exceeding one year or fined not more than $5,000, or both; and may be find a further sum equal to the money so loaned or gratuity given. Any examiner accepting a loan or gratuity from any bank examined by him or from an officer, director, or employee thereof shall be deemed guilty of a misdemeanor and shall be imprisoned not exceeding one year or fined not more than $5,000, or both; and may be fined a further sum equal to the money so loaned or gratuity given; and shall forever thereafter be disqualified from holding office as a national-bank examiner. No national bank examiner shall perform any other service for compensation while holding such office for any bank or officer, director, or employee thereof. Other than the usual salary or director's fee paid to any officer, director, or employee of a member bank and other than a reasonable fee paid by said bank to such officer, director, or employee for services rendered to such bank, no officer director, employee, or attorney of a member bank shall be a beneficiary of or receive, directly or indirectly, any fee, commission, gift, or other consideration for or in connection with any transaction or business of the bank. No examiner, public or private, shall disclose the names of borrowers or the collateral for loans of a member bank to other than the proper officers of such bank without first having obtained the express permission in writing from the Comptroller of the Currency, or from the board of directors of such bank, except when ordered to do so by a court of competent jurisdiction, or by direction of the Congress of the United States, or of either House thereof, or any committee of Congress or of either House duly authorized. Any person violating any provision of this section shall be punished by a fine of not exceeding $5,000 or by imprisonment not exceeding one year, or both." (Act Dec. 23, 1913, §§ 21, 22; Fed. St. Ann. 1914 Supp. pp. 281-2.) An earlier act referring to the provisions for which the foregoing act was substituted provided that "No association shall be subject to any visitorial powers other than such as are authorized by this Title, or are vested in the courts of justice." (Rev. St. U. S. § 5241, 5 Fed. St. Ann. p. 188.) A national bank examiner is not an officer or agent of the bank, and cannot bind the bank by any act in its behalf. Witters v. Sowles, 32 Fed. 762; Tecumseh Nat. Bank v. Chamberlain Banking House, 63 Neb. 163, 88 N. W. 186, 57 L.R.A. 811. Thus, in the case last cited, the court said: "It was outside of the duties of the examiner, and outside of the authority conferred upon him, to negotiate for the replenishing of the as- In Cox v. Montague, 78 Fed. 845, 24 C. C.. A. 364, appeal dismissed 18 S. Ct. 944, 42 U. S. (L. ed.) 1213, wherein it appeared that a national bank examiner wrote to a stockholder in a bank requesting information concerning the bank president, and the stockholder answered, volunteering in addition that he had become alarmed and disposed of his stock, it was held that the letter to the examiner was not privileged, but was admissible in evidence against the stockholder to prove the motive of his transfer. BENNETT KALAMAZOO CIRCUIT JUDGE. Michigan Supreme Court-December 18, 1914. 183 Mich. 200; 150 N. W. 141. Grand Jury Striking Report from Records A prosecuting attorney may move the circuit court to expunge from its records a Under Comp. Laws 1897, §§ 1395, 11443, authorizing a grand jury to make reports or presentments relating to trespass on public lands and violations of election laws, and sections 11891, 11893, providing how indictments shall be found, without providing for the filing of a report or presentment reflecting on the conduct of public officials, a grand jury has no right to file a report reflecting on the official conduct of the prosecuting attorney, unless followed by an "indictment," which is a written accusation that one or more persons have committed a crime, presented on oath by a grand jury; for a "presentment," as distinguished from an “indietment," is a notice taken by a grand jury of any offense from its own knowledge or observation without a bill of indictment laid before it at the suit of the commonwealth, and is generally regarded in the light of instructions on which an indictment must be found. [See note at end of this case.] "To the Circuit Court for the County of Kalamazoo : "We, the members of the grand jury now in session, beg leave to report, in addition to the reports already made, that our investigations have disclosed the existence of a state of affairs in connection with the office of prosecuting attorney for this county which we deem it our duty to call to the attention of the court. "1. The evidence disclosed that the prosecuting attorney of this county has violated the laws of the State by drawing from the treasury of the county the sum of $245, claiming that amount as fees for services rendered in certain divorce cases, to which we believe he is not legally entitled. Act No. 586 of the Local Acts of the State of Michigan for the year 1907 provides that the salary of the prosecuting attorney for the county of Kalamazoo shall be fixed by the board of supervisors, and that such compensation shall be in full for all services that may be rendered for which the county may be liable, and in lieu of all fees which are fixed by law. "2. That he was advised, as the evidence shows, before drawing said amount that he was not entitled thereto; notwithstanding which he drew the same from the treasury of the county and retains the amount so drawn, and has neglected and refused, and still neglects and refuses, to return the money so drawn to the treasurer of the county. "3. Our investigation further shows that he has refused to attend sessions of the grand jury, though [202] often requested by the circuit judge to do so, thereby subjecting the county to a great expense of having a special prosecutor to perform the duties for which he was elected and for which he is paid by the county. "4. Without going into details our investigations further show that from the time the grand jury was summoned, and since it has been in session, that the prosecuting attorney of this county has, through the public press and otherwise, sought to cast discredit upon and to obstruct, hinder, and delay any efforts of the jury to get at the truth or falsity of the many rumors of alleged criminal irregularities within the county and city of Kalamazoo; that he furthermore in furtherance of his schemes has not hesitated to apply the most vile, profane, obscene, and vulgar epithets (too filthy, vile, and disgusting to be embodied in this report), not only to the chief executive of the State, the head of the legal department thereof, but to others who have been engaged in an honest effort to arrive at the truth of matters under investigation. "5. Our investigation has disclosed in the conduct of criminal business of the county that he is utterly incompetent to discharge properly the duties of the office to which he has been elected. His neglect of duty and his conduct has been of so serious a nature that we feel it our duty to bring the same to the attention of the court and to request that this report or a copy thereof be forwarded to the governor of the State for consideration and for such action as to him shall seem proper. [Signed] "The Grand Jury of Kalamazoo County, "By Byron J. Carnes, "Foreman of Grand Jury." 183 Mich. 200. The relator charges that the averments and innuendoes contained in said report are false and malicious, and wrongfully tend to impute a lack of integrity on the part of petitioner. He filed a petition with the circuit judge demanding that said paper be summarily stricken and expunged from the files and records of the court. Respondent's [203] return to the order to show cause, issued by this court, shows that in fact relator's petition filed in his court has never been acted upon, for the reason that no notice has been given by relator to members of the grand jury making the report, nor has any hearing upon said petition been demanded by relator. Respondent, however, returns that if he had acted upon said petition, as he is at present advised, he would have denied the prayer of the same for the following reasons: "(a) Because, as matter of law, it is his judgment that the said grand jury had the lawful right to make said report to the court for the purposes therein set forth. "(b) Because in the judgment of the respondent, said report was made to the court by said grand jury in good faith, and not from malicious or improper motives. "(c) Because an ex parte decision to strike said report from the files and proceedings of the court would, in the judgment of respondent, be an adjudication which might embarrass the grand jury and the several members thereof, and render them, at least prima facie, guilty of libeling relator. "(d) Because the lawful rights of the relator, the members of the grand jury, the court, and the people of Kalamazoo county are such, in the judgment of respondent, as to render it improper to strike said report from the files and proceedings of said grand jury and award the relief prayed by relator in and by his petition to strike same from said files. "(e) Because the relator's remedy, if any, in the premises, is not by writ of mandamus, but by suit, as against the grand jurors and all who may have taken part in the preparation and publication of said report, if the matters embraced therein are false and untrue, and if said report was not made by said grand jury in good faith and without malicious motives, and respondent states and avers that if all the matters and things stated, alleged, and averred in the relator's petition in this matter are true, which [204] this respondent does not concede, he is not entitled to the relief prayed, and respondent demurs thereto for that reason." We are of the opinion that it was unnecessary for relator to serve notice of his motion to strike said report from the files upon any member of the grand jury. The paper, having been filed, became a part of the Ann. Cas. 1916E.-15. records of the circuit court for the county of Kalamazoo and, as such, was peculiarly within the custody and control of respondent. Touching the failure of relator to demand a hearing upon said petition, it is, we think, true that relator should have secured action, one way or the other from respondent, upon his petition before applying to this court for relief. However, we are not inclined to dispose of the case upon this technicality, in view of respondent's return, and in view of the further fact that counsel for respondent has asked us to disregard the technical defense, and dispose of the question upon its merits. We will, therefore, consider the matter in this court as if, in fact, the respondent had refused upon proper application to expunge the report from the records of the court. In order to determine the question in issue, it becomes necessary to ascertain, if possible, what duties and functions devolve upon the grand juries in this jurisdiction. Blackstone, in his Commentaries, book 4, page 301, defines the procedure as follows: "The next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation. And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous finding. The former way is either by presentment or indictment. A "1. Presentment by indictment. A presentment, generally taken, is a very comprehensive term; including not only presentments, properly so called, but [205] also inquisitions of office and indictments by a grand jury. presentment, properly speaking, is the notice taken by a grand jury of any offense from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king; as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment, before the party presented can be put to answer it. An inquisition of office is the act of a jury summoned by the proper officer to inquire of matters relating to the crown, upon evidence laid before them. Some of these are in themselves convictions, and cannot afterwards be traversed or denied; and therefore the inquest or jury ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se; of flight in persons accused of felony; of deodands, and the like; and presentments of petty offenses in the sheriff's tourn or court-leet, whereupon the presiding officer may set a fine. Other inquisitions may be afterwards traversed and examined; as particularly the coroner's inquisition of the death of a man, when it finds any one guilty of homicide; for in such cases the offender so presented must be arraigned upon this inquisition, and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely. "2. An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol-delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things which, on the part of our lord the king, shall then and there be commanded them. They ought to be freeholders, but to what amount is uncertain: which seems to be casus omissus (omitted cases), and as proper to be supplied by the legislature as the qualifications of the petit jury, which were formerly equally vague and uncertain, but are [206] now settled by several acts of parliament. However, they are usually gentlemen of the best figure in the county. As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at least, and not more than twenty-three; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described, so early as the laws of King Ethelred. (Exeant seniores duodecim thani, et præfectis cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem noxium celare.) (Let twelve elder freemen, and the foreman with them, retire and swear upon the holy book which is given into their hands that they will not accuse any innocent person, nor screen any criminal.) In the time of King Richard the First (according to Hoveden) the process of electing the grand jury ordained by that prince, was as follows: four knights were to be taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other principal freemen, and those twelve were to answer concerning all particulars relating to their own district. This number was probably found too large and inconvenient; but the traces of this institution still remain in that some of the jury must be summoned out of every hundred. This grand jury are previously instructed in the articles of their inquiry, by a charge from the judge who presides upon the bench. They then withdraw to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution; for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire, upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities; a doetrine that might be applied to very oppressive purposes." The definition of a "presentment" as distinguished [207] from "indictment" is set out in 20 Cyc. p. 1335, § B-2, as follows: "A presentment in its limited sense is the notice taken by a grand jury of any offense from its own knowledge or observation without a bill of indictment laid before it at the suit of the Commonwealth. It is generally regarded in the light of instructions upon which an indictment must be found. In some jurisdictions either under statute or apart from statute, grand juries have the power to make presentment of offenses which are within their own knowledge and observation or are of public notoriety and injurious to the entire community. But in other jurisdictions it is held that the grand jury has no power to present any person for a criminal offense except by indictment." It is said in Hirsh on Juries, p. 209, § 725, par. 2: "In addition to bills of indictments and specific offenses, the grand jury have the right to present to the court such public wrongs as in their judgment should be brought to the notice of the court." In a charge to a grand jury delivered by Mr. Justice Field, and reported in 2 Sawy. (U. S.) 667 (Fed. Cas. No. 18,255), the following definition of "presentment" is found: "A presentment differs from an indictment in that it wants technical form, and is usually found by the grand jury upon their own knowledge, or upon the evidence before them, without having any bill from the public prosecutor. It is an informal accusation, which is generally regarded in the light of instructions upon which an indictment can be framed. "This form of accusation has fallen in disuse since the practice has prevailed-and the practice now obtains generally-for the prosecuting officer to attend the grand jury and advise them in their investigations." The identical question here presented seems to have arisen in the State of New York in the case of Matter of [208] Osborne, 68 Misc. 597, 125 N. Y. S. 313. There a grand jury was summoned to take action regarding the American Ice Company. The deputy attorney general attended the grand jury and |