Young v. Wempe

46 F. 354

• Court: U.S. Circuit Court for the District of Northern California
• Decided: February 15, 1891
• Status: Published

Opinion

Hawley, J.,

(orally.') This is an action brought by the receiver of the California National Bank of San Francisco, Cal., to recover from defendants, as stockholders in said bank, the amount of an assessment made by the comptroller of the currency of the United States. The defendants demur to the complaint upon several grounds. I have carefully examined the several authorities cited by the respective counsel, and my conclusion is: (1) That the debtors of an insolvent national bank, when sued by a receiver, cannot inquire into the legality of his appointment. (2) That the law authorizes the deputy comptroller of the currency of the United States to act in place of the comptroller in certain contingencies stated, and the court will presume, in the absence of any showing to the contrary, that the deputy has acted in conformity with law. (3) That the assessment made by the comptroller of the currency is conclusive upon the stockholders; at least that it is only necessary in the complaint to allege the fact that the comptroller determined that it was necessary to enforce the liability of the stockholders, and did levy the assessment. (4) That an action at law may be maintained by the receiver to recover the assessments against stockholders. (5) That stockholders are liable to be assessed equally and ratably to the extent of their statutory liability for all debts existing while they hold stock, and before they make a valid transfer of the same. (6) That the various provisions of the national bank act are a part of the contract of the charter of a national bank, and when a party becomes a stockholdef therein he necessarily submits himself to the provisions of the law under which the bank is authorized to transact business. (7) That the claim of defendant that he will be deprived of “due process of law” cannot be maintained. These conclusions are sustained by the following authorities: Kennedy v. Gibson, 8 Wall. 498; Casey v. Galli, 94 U. S. 673; Bank v. Case, 99 U. S. 628; Bailey v. Sawyer, 4 Dill. 463; Strong v. Southworth, 8 Ben. 331; Stanton v. Wilkeson, Id. 357; Welles v. Stout, 38 Fed. Rep. 67; Richmond v. Irons, 121 U. S. 27, 7 Sup. Ct. Rep. 788. The demurrer is overruled.