A national bank is an instrumentality of the United States, the
administration whereof is vested in the Comptroller of the
Currency, who, in case of insolvency, appoints the receiver and
directs his acts. The liability for assessment on the stock dates
from the order of the, Comptroller who decides when it is necessary
to institute proceedings therefor, and his determination is
conclusive. This power is derived from a statute of the United
States, and cannot be controlled or limited by state statutes.
Where the state court has held that a suit to collect assessment
by the receiver of a national bank under directions of the
Comptroller of the Currency is barred by a state statute of
limitations, a federal question is involved, and the writ of error
will not be dismissed.
The facts are stated in the opinion.
Page 199 U. S. 230
MR. JUSTICE McKENNA delivered the opinion of the Court.
The question in this case is the application of the statute of
limitations of a state to the liability of a stockholder of a
national bank before the amount of such liability has been
ascertained and assessed by the Comptroller of the Currency. The
trial court held the statute applicable, and its judgment was
affirmed by the supreme court of the state.
The petition was filed November 13, 1902, and averred that the
Hutchinson National Bank became insolvent in 1893, and plaintiff in
error was appointed its receiver. On July 9, 1894, the Comptroller
of the Currency ordered an assessment of $75,000 upon the
individual liability of the stockholders, being $75 on each share,
to pay the debts of the bank. After
Page 199 U. S. 231
application of the amounts collected, and after further
accounting, it was found necessary to make another assessment, and
on November 20, 1900, the Comptroller of the Currency made another
assessment of $19,000, being $19 upon each share. It was
"that said assessment was made just as soon as discovered, in
the exercise of diligence, to be necessary, and just as soon as it
was ascertained that the first assessment and assets of the bank
The amount due from defendant in error was $627, for which
judgment was prayed. A demurrer was sustained to the petition on
the ground that it showed on its face that the cause of the action
was barred by the statute of limitations of the state. In
sustaining this ruling, the supreme court of the state said: (1)
that, although the cause of action arose under the act of Congress,
which prescribed no limitation on the remedy against stockholders,
the statute of the state applied, and (2) the statute commenced to
run not when the assessment was made against a stockholder, but was
put in motion by delay in making the assessment. Prior decisions of
the supreme court of the state were relied on for this conclusion.
They established the local law to be, it was said, that when an act
to be done is wholly within the control of the party suing, he must
perform it within a reasonable time, and such time cannot extend
the period within which the action would be barred if no such
preliminary step were necessary. And it was decided that the
averment of the petition that the second assessment was made as
soon as it was discovered to be necessary was a mere conclusion of
the pleader which was countervailed by the facts alleged.
We think the court overlooked the official character and power
of the Comptroller of the Currency and the decisions of this Court
declaring them. A national bank is an instrumentality of the United
States; its circulating notes are guaranteed by the United States,
and if the United States should be compelled to pay them, the
United States has a paramount lien on the assets of the bank for
reimbursement. The administration of the bank's assets is therefore
vested in the Comptroller
Page 199 U. S. 232
of the Currency as an officer of the United States. He appoints
the receiver, and directs his acts. The individual liability of a
stockholder can only be enforced by his order. The provision is as
much for the benefit of the stockholders as for the United States,
and it is indispensable to the bringing of a suit against the
stockholder. In other words, the liability dates from the order of
the Comptroller. It was said in Kennedy v.
8 Wall. 498, 75 U. S.
"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 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 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 stockholders 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
Subsequent cases have reiterated the doctrine. McDonald v.
Thompson, 184 U. S. 71
Studebaker v. Perry, 184 U. S. 258
the power of the Comptroller is derived from a statute of the
United States, it cannot be controlled or limited by state
A motion is made by defendant in error to dismiss the writ of
error for want of jurisdiction in this Court. It is manifest from
what we have said that the motion is without foundation.
Judgment reversed and cause remanded for further proceedings
not inconsistent with this opinion.