Appellee, the receiver of a Texas insurance company in
liquidation in a Texas State Court in Travis County, brought an
action in that Court against two national banks and 143 other
parties, alleging a conspiracy to defraud the insurance company and
claiming damages. Each national bank filed a plea of privilege
under Texas practice, asserting that it was located in Dallas
County and, therefore, was immune from suit in a state court
elsewhere under § 5198 of the Revised Statutes, which provides that
actions against a national bank "may be had" in any state court in
the county or city in which it is located. On an appeal in which it
was agreed that the only issue was whether § 5198 entitled the
national banks to have the action transferred to the state court in
Dallas County or whether venue was controlled by a Texas statute,
the Texas Supreme Court refused to accept § 5198 as prohibiting a
suit against the national banks in Travis County, where a state
venue statute expressly permitted it. The banks appealed to this
Court.
Held:
1. The judgments of the Texas Supreme Court are "final," within
the meaning of 28 U.S.C. § 1257(2), and this Court has jurisdiction
of the appeals. Pp.
371 U. S.
557-558.
2. Section 5198 of the.Revised Statutes is controlling here, and
this suit in a state court against national banks may not be
maintained in a county or city other than that in which they are
located. Pp.
371 U. S.
558-567.
(a) National banks are instrumentalities of the Federal
Government, and Congress had and exercised the authority to
prescribe the manner and circumstances under which they could sue
or be sued. Pp.
371 U. S.
558-559.
(b) Congress intended that a national bank could not be sued
against its will in any court other than those specified in § 5198.
Pp.
371 U. S.
559-564.
Page 371 U. S. 556
(c) Section 5198 has not been repealed, and it is fully
effective. Pp.
371 U. S.
565-567.
161 Tex. 349,
341 S.W.2d
161, reversed.
MR. JUSTICE WHITE delivered the opinion of the Court.
Appellee, the receiver for a Texas insurance company in
liquidation in the Ninety-eighth District Court of Travis County,
Texas, brought an action in that court against the two national
banks who are appellants here and against 143 other parties,
alleging a conspiracy to defraud the insurance company and claiming
damages jointly and severally in the amount of 15 million dollars.
Each appellant filed a plea of privilege, as provided by the Texas
Rules of Civil Procedure, asserting that it was located in Dallas
County, Texas, and was therefore immune from suit in Travis County
under the provisions of Rev.Stat. § 5198 (1878), 12 U.S.C. § 94,
which provides:
"Actions and proceedings against any association under this
chapter may be had in any district or Territorial court of the
United States held within the district in which such association
may be established, or in any State, county, or municipal court in
the county or city in which said association is located having
jurisdiction in similar cases. [
Footnote 1] "
Page 371 U. S. 557
Appellee, on the other hand, relied upon Texas Insurance Code,
Art. 21.28, Section 4 of which provides:
"(f) New Lawsuits. The court of competent jurisdiction of the
county in which the delinquency proceedings are pending under this
Article shall have venue to hear and determine all action or
proceedings instituted after the commencement of delinquency
proceedings by or against the insurer or receiver."
The pleas of the banks were overruled, and they appealed, it
being agreed that the only issue for review was whether 12 U.S.C. §
94 entitled appellants to have the action transferred to the state
court in Dallas County or whether the state venue provision
contained in § 4(f) of the Insurance Code was controlling. The
Court of Civil Appeals reversed, and sustained the pleas of
privilege on the ground that 12 U.S.C. § 94 required an action
against a national bank to be brought in the county of its
location. The Texas Supreme Court, however, refused to accept § 94
as prohibiting a suit against petitioners in Travis County when a
state venue statute expressly permitted it. 161 Tex. 349,
341 S.W.2d
161. On the one hand, the court interpreted § 94 as permissive
only, not mandatory, and, on the other, as having been repealed by
an omnibus repealing clause in an 1882 statute [
Footnote 2] subsequently absorbed into 28 U.S.C. §
1348. [
Footnote 3] Appellants
brought the cases here under 28 U.S.C. § 1257(2) and, because of
the finality question, we postponed ruling upon our jurisdiction
until the merits were considered. 368 U.S. 809.
I
The question of our appellate jurisdiction is quite similar to
the one considered in
Construction Laborers v. Curry,
ante, p. 543,, although there the jurisdiction of
Page 371 U. S. 558
any and all state courts was at issue, and here the inquiry is
only as to which state court has proper venue to entertain an
action against two national banks. Nonetheless, a substantial
claim, appealable under state law, is made that a federal statute,
rather than a state statute, determines in which state court a
national bank may be sued and, as in
Curry, prohibits
further proceedings against the defendants in the state court in
which the suit is now pending. This is a separate and independent
matter, anterior to the merits and not enmeshed in the factual and
legal issues comprising the plaintiff's cause of action. Moreover,
we believe that it serves the policy underlying the requirement of
finality in 28 U.S.C. § 1257 to determine now in which state court
appellants may be tried, rather than to subject them, and appellee,
to long and complex litigation which may all be for naught if
consideration of the preliminary question of venue is postponed
until the conclusion of the proceedings. Accordingly, we note our
jurisdiction to hear this appeal under § 1257(2) and turn now to
the question of whether appellants may be sued in the Travis County
court.
II
The roots of this problem reach back to the National Banking Act
of 1863, 12 Stat. 665, replaced a year later by the Act of 1864, 13
Stat. 99. [
Footnote 4] National
banks are federal instrumentalities, and the power of Congress over
them is extensive.
"National banks are
quasi-public institutions, and for
the purpose for which they
Page 371 U. S. 559
are instituted are national in their character, and, within
constitutional limits, are subject to the control of Congress, and
are not to be interfered with by state legislative or judicial
action, except so far as the lawmaking power of the government may
permit."
Van Reed v. People's Nat. Bank, 198 U.
S. 554,
198 U. S. 557.
Unquestionably Congress had authority to prescribe the manner and
circumstances under which the banks could sue or be sued in the
courts, and it addressed itself to this matter in the 1863 Act.
By § 11 of that Act, the banking associations were given general
corporate powers, among them the power to "sue and be sued . . . in
any court of law or equity as fully as natural persons." [
Footnote 5] This section, if the
teaching of
Bank of the United States v.
Deveaux, 5 Cranch 61, is observed, conferred no
jurisdiction upon the courts, but merely endowed the banks with
power to sue and be sued in the courts as corporations. Congress,
however, had more to say about this subject. Section 59 of the 1863
Act [
Footnote 6] provided that
suits by and against any association under the Act could be had in
any federal court held within the district in which the association
was established. No mention was made of suits in state courts. If
the law had remained in this form, there might well have been grave
doubt about the suability of national banks in the state courts, as
this Court noted in
First Nat. Bank v. Union Trust Co.,
244 U. S. 416,
244 U. S. 428.
[
Footnote 7]
Page 371 U. S. 560
The next year, however, Congress expressly exercised its power
to permit national banks to be sued in certain state courts, as
well as in federal courts. Section 57 of the 1864 Act [
Footnote 8] carried forward the former
§ 59 and also added that
"suits . . . may be had . . . in any state, county, or municipal
court in the county or city in which said association is located,
having jurisdiction in similar cases. . . ."
The phrase "suits . . . may be had" was, in every respect,
appropriate language for the purpose of specifying the precise
courts in which Congress consented to have national banks subject
to suit, and we believe Congress intended that in those courts
alone could a national bank be sued against its will.
We would not lightly conclude that a congressional enactment has
no purpose or function. We must strive to give appropriate meaning
to each of the provisions of Title 12 and its predecessors.
See
United States v. Menasche, 348 U. S. 528,
348 U. S. 539;
Montclair v. Ramsdell, 107 U. S. 147,
107 U. S. 152.
Appellee, however, would have us hold that any state court could
entertain a suit against a national bank as long as state
jurisdictional and venue requirements were otherwise satisfied.
Such a ruling, of course, would render altogether meaningless a
congressional enactment permitting suit to be brought in the bank's
home county. This we are unwilling to do, particularly in light of
the history of § 57. That section was omitted from Title 62
(National Banks) of the Revised Statutes of 1873, but, at the same
time, there were included in Title 13 (The Judiciary) provisions
granting the federal courts jurisdiction over suits by and against
national banks brought in the district of their residence.
[
Footnote 9] These express
provisions relating to the jurisdiction of the federal courts
apparently did not solve the entire problem, for § 5198 of Title
62, Revised Statutes, was amended
Page 371 U. S. 561
in 1875 by adding to it provisions substantially identical to §
57 of the 1864 Act. [
Footnote
10] Thus, for a second time, Congress specified the precise
federal and state courts in which suits against national banks
could be brought.
All of the cases in this Court which have touched upon the issue
here are in accord with our conclusion that national banks may be
sued only in those state courts in the county where the banks are
located. [
Footnote 11]
Notable among these is
First Nat. Bank v. Morgan,
132 U. S. 141,
which involved a suit against a national bank brought in a county
other than that in which the bank was located. This Court stated
that § 57 conferred a personal privilege on the banks exempting
them from suits in state courts outside their home counties.
However, since the bank in that case had not objected at the trial
to the location of the suit, but raised the issue for the first
time on appeal, the Court held that the § 57 privilege had been
waived. [
Footnote 12]
Page 371 U. S. 562
Thus, we find nothing in the statute, its history or the cases
in this Court to support appellee's construction of this statute.
On the contrary, all these sources convince us that the statute
must be given a mandatory reading. [
Footnote 13]
Page 371 U. S. 563
The consequence of our decision, appellee says, is that a
litigant will be unable to join two national banks in the same
action in the state courts if they are located in different
counties, or in the federal courts if they are located in different
districts. But, aside from not being presented by these cases, such
a situation is a matter for Congress to consider.
Cf. 28
U.S.C. §§ 1391(a), (b), 1401;
Greenberg v. Giannini, 140
F.2d 550, 552 (C.A.2d Cir.).
See also Bankers Life &
Casualty Co. v. Holland, 346 U. S. 379,
346 U. S.
384.
Similarly, even if all of the 145 defendants may not be sued in
one proceeding in Dallas County with the same facility as they may
in Travis County, this, of course, is insufficient basis for
departing from the command of the
Page 371 U. S. 564
federal statute. Nevertheless, though we have no intention of
venturing an opinion on matters of Texas procedure, particularly
when the parties were in disagreement about them in argument before
this Court, we are aware of the recent ruling of the Texas Supreme
Court,
Langdeau v. Burke Investment Co.,
Tex., 358 S.W.2d 553,
holding Texas Insurance Code, Art. 21.28(4), permissive, not
mandatory, thus not restricting the receiver to suits in the
receivership court. We have also noted that Texas procedural rules
might very well permit the transfer of the entire case to Dallas
County. Tex. Rules Civ.Proc. 89; [
Footnote 14]
Tunstill v. Scott, 138 Tex. 425,
160 S.W.2d 65;
Terrell v. Kohler, 48 S.W.2d 531
(Tex.Civ.App.). Moreover, Tex.Rules Civ.Proc. 164 [
Footnote 15] appears to permit dismissal of
suits without prejudice when a plea of improper venue is sustained,
see Luck v. Welch, 243 S.W.2d 589 (Tex.Civ.App., ref.
n.r.e.);
Wiley v. Joiner, 223 S.W.2d 539 (Tex.Civ.App.),
opening the way for a new suit which Article 1995(4) [
Footnote 16] indicates could be
brought in Dallas County. [
Footnote 17]
Page 371 U. S. 565
Appellee, finally, attempts to avoid his venue problem entirely
by denying the very existence of § 5198, Rev.Stat. (1878). Section
5198, appellee says, was repealed by the proviso to § 4 of the Act
of July 12, 1882:
"[T]he jurisdiction for suits hereafter brought by or against
any association . . . shall be the same as, and not other than, the
jurisdiction for suits by or against banks not organized under any
law of the United States. . . . And all laws and parts of laws of
the United States inconsistent with this proviso be, and the same
are hereby, repealed. [
Footnote
18]"
It is also said that 28 U.S.C. § 1348, [
Footnote 19] derived from the Act of March 3,
1887, [
Footnote 20] reenacts
§ 4 of the 1882 Act in somewhat modified form, thus continuing the
congressional intent to repeal § 5198 to the extent that it
prescribes the venue of suits in state courts.
See 161
Tex. at 356, 341 S.W.2d at 166.
Since § 4 of the Act of 1882 and its successors do not expressly
repeal § 5198, appellee's contention is necessarily one of implied
repeal, requiring some manifest inconsistency or positive
repugnance between the two statutes.
United States v. Borden
Co., 308 U. S. 188,
308 U. S.
198-199. We find neither here. Section 5198, as
construed in the
First Nat. Bank case, is essentially a
venue statute governing the proper location of suits against
national banks in either federal or state courts, whereas § 4 of
the 1882 Act and the 1887 Act were designed to
Page 371 U. S. 566
overcome the effect of §§ 563 and 629 Rev.Stat., [
Footnote 21] which allowed national banks
to sue and be sued in the federal district and circuit courts
solely because they were national banks, without regard to
diversity, amount in controversy or the existence of a federal
question in the usual sense. Section 4 apparently sought to limit,
with exceptions, the access of national banks to, and their
suability in, the federal courts to the same extent to which
non-national banks are so limited. [
Footnote 22]
Decisions of this Court have recognized that § 4 purported to
deal with no more than matters of federal jurisdiction. As we
observed in
Continental National Bank v. Buford,
191 U. S. 119,
191 U. S.
123-124:
"The necessary effect of this legislation was to make national
banks . . . citizens of the states in which they were respectively
located, and to withdraw from them the right to invoke the
jurisdiction of the circuit courts of the United States simply on
the ground that they were created by, and exercised their powers
under, acts of Congress. No other purpose can be imputed to
Congress than to effect that result. "
Page 371 U. S. 567
See also Leather Manufacturers' Bank v. Cooper,
120 U. S. 778.
Moreover, nothing in the subsequent history of this statute, now 28
U.S.C. § 1348, warrants the conclusion that Congress sought, even
by implication, to relax the venue restrictions of § 5198.
The provisions of § 5198 are fully effective, and must be
recognized when they are duly raised. The judgments of the Texas
Supreme Court are reversed, and the causes remanded for further
proceedings not inconsistent with this opinion.
Reversed and remanded.
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS, while agreeing with
the Court that the judgments are "final," dissent on the merits of
the controversy.
MR. JUSTICE CLARK took no part in the consideration or decision
of these cases.
[For dissenting opinion of MR. JUSTICE HARLAN,
see
post, p.
371 U. S.
572.]
* Together with No. 15,
Republic National Bank of Dallas v.
Langdeau, Receiver, also on appeal from the same Court.
[
Footnote 1]
See 371
U.S. 555app|>Appendix, No. 4. The pertinent national bank
legislation appears in the Appendix to this opinion, p. 567.
[
Footnote 2]
See 371
U.S. 555app|>Appendix, No. 6.
[
Footnote 3]
See 371
U.S. 555app|>Appendix, No. 8.
[
Footnote 4]
The history of national banking in the United States begins with
the First Bank of the United States, chartered in 1791 (1 Stat.
191;
See Bank of United States v.
Deveaux, 5 Cranch 61), which continued in existence
until 1811. 1 Dictionary of American History 155 (1940). The Second
Bank was incorporated in 1816, 3 Stat. 266,
See Osborn v.
Bank of United States, 9 Wheat. 738, and terminated
in 1836 when its charter was permitted to expire.
Ibid.
[
Footnote 5]
See 371
U.S. 555app|>Appendix, No. 1.
[
Footnote 6]
Ibid.
[
Footnote 7]
"[O]ur conclusion on this subject is fortified by the terms of §
57, chap. 106, 13 Stat. at L. 116 [the 1864 Act, discussed
infra], making controversies concerning national banks
cognizable in state courts because of their intimate relation to
many state laws and regulations, although, without the grant of the
act of Congress, such controversies would have been Federal in
character."
244 U.S. at
244 U. S. 428.
But cf. Claflin v. Houseman, 93 U. S.
130,
93 U. S.
135.
[
Footnote 8]
See 371
U.S. 555app|>Appendix, No. 2.
[
Footnote 9]
See 371
U.S. 555app|>Appendix, No. 5.
[
Footnote 10]
See 371
U.S. 555app|>Appendix, No. 3.
[
Footnote 11]
First Nat. Bank of Bethel v.
Pahquioque Bank, 14 Wall. 383, was a suit in state
courts against a national bank in default on its notes. The
national bank contended that, since it was an instrumentality of
the Federal Government, it was not subject to suit in state courts.
This Court, noting that the suit was in a state court where the
bank was located, sustained the power of the state court squarely
upon the provisions of § 57. Subsequently,
Casey v. Adams,
102 U. S. 66,
reaffirmed the mandate of § 57, then Rev.Stat. § 5198, as applied
to ordinary transitory actions, but held that Congress did not
intend it to apply to local
in rem actions. Many years
later, in the course of deciding
Cope v. Anderson,
331 U. S. 461,
this Court, in compelling language, pointed out:
"For jurisdictional purposes, a national bank is a 'citizen' of
the state in which it is established or located, 28 U.S.C. §
41(16), and in that district alone can it be sued. 12 U.S.C. §
94."
331 U.S. at
331 U. S.
467.
[
Footnote 12]
"This exemption of national banking associations from suits in
state courts, established elsewhere than in the county or city in
which such associations were located, was, we do not doubt,
prescribed for the convenience of those institutions, and to
prevent interruption in their business that might result from their
books' being sent to distant counties in obedience to process from
state courts.
Bank of Bethel v. Pahquioque
Bank, 14 Wall. 383,
81 U. S.
394;
Crocker v. Marine National Bank, 101 Mass.
200 (240). But, without indulging in conjecture as to the object of
the exemption in question, it is sufficient that it was granted by
Congress, and if it had been claimed by the defendant, when
appearing in the Superior Court of Cleveland county, must have been
recognized. The defendant did not, however, choose to claim
immunity from suit in that court. It made defence upon the merits,
and, having been unsuccessful, prosecuted a writ of error to the
Supreme Court of the state, and in the latter tribunal, for the
first time, claimed the immunity granted to it by Congress. This
was too late. Considering the object as well as the words of the
statute authorizing suit against a national banking association to
be brought in the proper state court of the county where it is
located, we are of opinion that its exemption from suits in other
courts of the same state was a personal privilege that it could
waive, and which, in this case, the defendant did waive, by
appearing and making defence without claiming the immunity granted
by congress. No reason can be suggested why one court of a state,
rather than another, both being of the same dignity, should take
cognizance of a suit against a national bank, except the
convenience of the bank. And this consideration supports the view
that the exemption of a national bank from suit in any state court
except one of the county or city in which it is located is a
personal privilege, which it could claim or not as it deemed
necessary."
132 U.S. at
132 U. S.
145.
[
Footnote 13]
The lower federal courts have been unanimous in holding the
section fully effective and mandatory.
Buffum v. Chase Nat.
Bank, 192 F.2d 58 (C.A.7th Cir. 1951),
cert. denied,
342 U.S. 944;
Leonardi v. Chase Nat. Bank, 81 F.2d 19
(C.A.2d Cir. 1936),
cert. denied, 298 U.S. 677;
International Refugee Organization v. Bank of
America, 86 F. Supp.
884 (S.D.N.Y.1949);
Schmitt v. Tobin, 15 F. Supp.
35 (D.Nev.1935);
Cadle v. Tracy, 4 Fed.Cas. 967, No.
2,279 (C.C.S.D.N.Y.1873).
The state courts considering the problem are about evenly
divided. Some hold that a national bank must be sued in the county
where it is situated,
Monarch Wine Co. v.
Butte, 113 Cal. App.
2d 833, 249 P.2d 291 (1952);
Crocker v. Marine Nat.
Bank, 101 Mass. 240 (1869);
Rabinowitz v. Kaiser-Frazer
Corp., 198 Misc. 312, 96 N.Y.S.2d 638 (Sup.Ct.1950);
Raiola v. Los Angeles Bank, 133 Misc. 630, 233 N.Y.S. 301
(Sup.Ct.1929);
Burns v. Northwestern Nat. Bank, 65 N.D. 473,
260 N.W. 253 (1935); Zarbell v. Bank of America Nat. Trust &
Savings Ass'n, 52 Wash. 2d
549,
327 P.2d
436 (1958). Others hold that their is no such requirement, on
the theory that § 57 of the 1864 Banking Act was impliedly
repealed,
Fresno Nat. Bank v. Superior Court, 83 Cal. 491,
24 P. 157 (1890);
Levitan v. Houghton Nat. Bank, 174 Mich.
566, 140 N.W. 1019 (1913);
De Cock v. O'Connell, 188 Minn.
228, 246 N.W. 885, 248 N.W. 829 (1933);
Stewart v. First Nat.
Bank, 93 Mont. 390, 18 P.2d 801 (1933);
Guerra v.
Lemburg, 22 S.W.2d 336 (Tex.Civ.1929);
Brust v. First Nat.
Bank, 184 Wis. 15, 198 N.W. 749 (1924), or that the section is
to be given a permissive construction,
First Nat. Bank of
Linden v. Alston, 231 Ala. 348, 165 So. 241 (Ala.1936);
Hills v. Burnett, 172 Neb. 370,
109 N.W.2d
739 (1961);
Talmage v. Third Nat. Bank, 91 N.Y. 531
(1883);
Curlee v. National Bank, 187 N.C. 119, 121 S.E.
194 (1924).
See also County of Okeechobee v. Florida Nat.
Bank, 112 Fla. 309, 150 So. 124 (1933);
Cassatt v. First
Nat. Bank, 9 N.J.Misc. 222, 153 A. 377 (Sup.Ct.1931);
Chaffee v. Glens Falls Nat. Bank & Trust Co., 204
Misc. 181, 123 N.Y.S.2d 635 (Sup.Ct.1953),
aff'd, 283
App.Div. 694, 128 N.Y.S.2d 539,
appeal denied, 283
App.Div. 793, 129 N.Y.S.2d 237.
[
Footnote 14]
"
Transferred if Plea Is Sustained."
"If a plea of privilege is sustained, the cause shall not be
dismissed, but the court shall transfer said cause to the proper
court. . . ."
Tex.Rules Civ.Proc. 89 (Vernon 1955).
[
Footnote 15]
"
Non-Suit."
"At any time before the jury has retired, the plaintiff may take
a non-suit, but he shall not thereby prejudice the right of an
adverse party to be heard on his claim for affirmative relief. When
the case is tried by the judge, such non-suit may be taken at any
time before the decision is announced."
Tex.Rules Civ.Proc. 164 (Vernon 1955).
[
Footnote 16]
"
Venue, general rule."
"
* * * *"
"4. Defendants in different counties. -- If two or more
defendants reside in different counties, suit may be brought in any
county where one of the defendants resides."
Art. 1995(4), Tex.Rev.Civ.Stat. (Vernon 1950).
[
Footnote 17]
To be sure, Texas law does not permit frivolous joinder of
defendants to insure a desired venue,
see Stockyards Nat. Bank
v. Maples, 127 Tex. 633, 95 S.W.2d 1300, but nothing before us
indicates that appellee will find any difficulty in sustaining his
burden to establish that the defendant national banks are residents
of Dallas County and that, as he alleges, his cause of action
against them has a substantial and valid basis.
[
Footnote 18]
See 371
U.S. 555app|>Appendix, No. 6. See note 13, supra, for state
cases which have reached the same conclusion.
[
Footnote 19]
See 371
U.S. 555app|>Appendix, No. 8.
[
Footnote 20]
See 371
U.S. 555app|>Appendix, No. 7.
[
Footnote 21]
See 371
U.S. 555app|>Appendix, No. 5.
[
Footnote 22]
The proviso to § 4 of the 1882 Act first appeared as an
amendment offered on the floor of the House by Representative
Hammond, pursuant to the order of the House fixing the assignment
of the bill H.R. 4167 as a special order.
See 13 Cong.Rec.
3900, 3901. Mr. Hammond succinctly stated the purpose of his
amendment as follows:
"My amendment, therefore, declares that the jurisdictional
limits for and as to a national bank shall be the same as they
would be in regard to a State bank actually doing or which might be
doing business by its side; that they shall be one and the
same."
13 Cong.Rec. at 4049. Mr. Robinson then asked,
"As I understand the gentleman's proposed amendment, it is
simply to this effect, that a national bank doing business within a
certain State shall be subject for all purposes of jurisdiction to
precisely the same regulations to which a State bank, if organized
there, would be subject."
Mr. Hammond replied, "That is all."
Ibid.
|
371
U.S. 555app|
APPENDIX TO OPINION OF THE COURT
1. The Act of February 25, 1863, c. 58:
"Sec. 11.
And be it further enacted, That every
association formed pursuant to the provisions of this act may make
and use a common seal, and shall have succession by the name
designated in its articles of association and for the period
limited therein, not, however, exceeding twenty years from the
passage of this act; by such name may make contracts, sue and be
sued, complain and defend in any court of law or equity as fully as
natural persons. . . ."
12 Stat. 668.
"Sec. 59.
And be it further enacted, That suits,
actions, and proceedings by and against any association
Page 371 U. S. 568
under this act may be had in any circuit, district, or
territorial court of the United States held within the district in
which such association may be established."
12 Stat. 681.
2. The Act of June 3, 1864, c. 106:
"Sec. 8. . . . Such association . . . may make contracts, sue
and be sued, complain and defend, in any court of law and equity as
fully as natural persons."
13 Stat. 101; Rev.Stat. § 5136 (1873).
"Sec. 57. . . . That suits, actions, and proceedings, against
any association under this act may be had in any circuit, district,
or territorial court of the United States held within the district
in which such association may be established; or in any state,
county, or municipal court in the county or city in which said
association is located, having jurisdiction in similar cases:
Provided, however, That all proceedings to enjoin the
comptroller under this act shall be had in a circuit, district, or
territorial court of the United States, held in the district in
which the association is located."
13 Stat. 116-117.
3. Section 57 was omitted from Title 62, National Banks, in the
Revised Statutes of 1873. It was added to § 5198 of Title 62,
National Banks, by the Act of February 18, 1875, c. 80, 18 Stat.
320. Section 5198, as amended, reads as follows:
"Sec. 5198. The taking, receiving, reserving, or charging a rate
of interest greater than is allowed by the preceding section, when
knowingly done, shall be deemed a forfeiture of the entire interest
which the note, bill, or other evidence of debt carries with it, or
which has been agreed to be paid thereon. In case the greater rate
of interest has been paid, the person by whom it has been paid, or
his legal representatives,
Page 371 U. S. 569
may recover back, in an action in the nature of an action of
debt, twice the amount of the interest thus paid from the
association taking or receiving the same; provided such action is
commenced within two years from the time the usurious transaction
occurred.
That suits, actions, and proceedings against any
association under this title may be had in any circuit, district,
or territorial court of the United States held within the district
in which such association may be established, or in any State,
county, or municipal court in the county or city in which said
association is located having jurisdiction in similar
cases."
(Amendment in italics.)
4. The portion of § 5198, Rev.Stat. (1878), relating to suits in
federal and state courts, derived from § 57 of the 1864 Act, now
appears as 12 U.S.C. § 94:
"§ 94. Venue of suits"
"Actions and proceedings against any association under this
chapter may be had in any district or Territorial court of the
United States held within the district in which such association
may be established, or in any State, county, or municipal court in
the county or city in which said association is located having
jurisdiction in similar cases."
Title 12 has not as yet been enacted into positive law.
5. Revised Statutes of 1873, Title 13, The Judiciary, c. 3,
District Courts -- Jurisdiction.
"Sec. 563. The district courts shall have jurisdiction as
follows: . . . Fifteenth. Of all suits by or against any
association established under any law providing for national
banking associations within the district for which the court is
held."
Revised Statutes of 1873, Title 13, The Judiciary, c. 7, Circuit
Court -- Jurisdiction.
Page 371 U. S. 570
"Sec. 629. The circuit courts shall have original jurisdiction
as follows: . . . Tenth. Of all suits by or against any banking
association established in the district for which the court is
held, under any law providing for national banking
associations."
These provisions were derived from that part of § 57 of the 1864
Act which conferred jurisdiction on the federal courts.
6. Act of July 12, 1882, c. 290, 22 Stat. 162, an Act to enable
national banking associations to extend their corporate existence,
and for other purposes. Section 4 of that Act contained the
following proviso:
". . .
Provided, however, That the jurisdiction for
suits hereafter brought by or against any association established
under any law providing for national banking associations, except
suits between them and the United States, or its officers and
agents, shall be the same as, and not other than, the jurisdiction
for suits by or against banks not organized under any law of the
United States which do or might do banking business where such
national banking associations may be doing business when such suits
may be begun; and all laws and parts of laws of the United States
inconsistent with this proviso be, and the same are hereby,
repealed. [
Footnote 2/1]"
22 Stat. 163.
Page 371 U. S. 571
7. Act of March 3, 1887, c. 373, as amended by the Act of August
13, 1888, c. 866.
"Sec. 4. That all national banking associations established
under the laws of the United States shall, for the purposes of all
actions by or against them, real, personal, or mixed, and all suits
in equity, be deemed citizens of the States in which they are
respectively located; and in such cases the circuit and district
courts shall not have jurisdiction other than such as they would
have in cases between individual citizens of the same State."
"The provisions of this section shall not be held to affect the
jurisdiction of the courts of the United States in cases commenced
by the United States or by direction of any officer thereof, or
cases for winding up the affairs of any such bank. [
Footnote 2/2]"
25 Stat. 436.
8. 28 U.S.C. § 1348 contains the present version of the matters
covered in the Acts of 1882, 1887 and 1888:
"§ 1348. Banking association as party"
"The district courts shall have original jurisdiction of any
civil action commenced by the United States, or by direction of any
officer thereof, against any national banking association, any
civil action to wind up the affairs of any such association, and
any action by a banking association established in the district for
which the court is held, under chapter 2 of Title 12, to enjoin the
Comptroller of the Currency, or any receiver acting under his
direction, as provided by such chapter. "
Page 371 U. S. 572
"All national banking associations shall, for the purposes of
all other actions by or against them, be deemed citizens of the
States in which they are respectively located."
[
Footnote 2/1]
The proviso to § 4 of the Act of 1882 is included in the
Supplement to the Revised Statutes at 354 (2d ed. 1891), despite
the apparent duplication of the Acts of 1887 and 1888, appearing at
614. It does not appear in the 1925 United States Code, the first
official restatement since 1878 of all United States statutes
presumptively in effect, evidently because the Committee on
Revision cited the entire 1882 Act as repealed, 44 Stat. 1833, by
the Act of July 1, 1922, c. 257, § 2, 42 Stat. 767. When the 1948
codification of Title 28 was enacted, the proviso to § 4 of the Act
of 1882 was expressly repealed. 62 Stat. 992, ch. 646, § 39.
[
Footnote 2/2]
The Acts of 1887 and 1888 were repealed when the 1911
codification of the judiciary and judicial procedure provisions was
enacted. Act of March 3, 1911, c. 231, § 297, 36 Stat. 1168. These
provisions became § 24 of the Judicial Code of 1911, 28 U.S.C.
(1940 ed.) § 41(16) and then § 1348 of Title 28 enacted in
1948.
MR. JUSTICE HARLAN, dissenting.
The Court's opinion in these appeals, and some of the things
said in
Construction Laborers v. Curry, ante, p.
371 U. S. 542, cut
deeply into the statutory requirement of "finality" limiting our
jurisdiction to review state court judgments. [
Footnote 3/1]
That requirement is more than a technical rule of procedure,
yielding when need be to the exigencies of particular situations.
Rather, it is a longstanding and healthy federal policy that
protects litigants and courts from the disruptions of piecemeal
review and forecloses this Court from passing on constitutional
issues that may be dissipated by the final outcome of a case, thus
helping to keep to a minimum undesirable federal-state conflicts.
In this instance, it precludes, in my opinion, the exercise of our
appellate jurisdiction at this stage of the proceedings.
The state court judgments now sought to be reviewed are nothing
more than a determination that venue was properly laid in the
county where suit against these appellants was brought. Such a
determination, being tantamount to a denial of a motion to dismiss,
is a classic example of an interlocutory ruling that is only a step
towards ultimate disposition, and is not in itself reviewable as a
final judgment.
See Catlin v. United States, 324 U.
S. 229; 6 Moore, Federal Practice �� 54.12(1), 54.14;
see also Clinton Foods v. United States, 188 F.2d 289,
291-292,
Page 371 U. S. 573
and cases cited therein. [
Footnote
3/2] It fits squarely within the general rule that a judgment
is not final unless it terminates the litigation and leaves nothing
to be done but to enforce by execution what has been demanded.
See Parr v. United States, 351 U.
S. 513.
It is true that several specific, and narrowly circumscribed,
exceptions to this general rule have been developed in order to
deal with extraordinary situations where a judgment is final in
substance although not in form. But these appeals do not fall
within any of these exceptions.
Thus, this is not a situation in which what remains to be done
in the state courts is a mere formality, or in which the appellants
concede that their whole case must stand or fall on the federal
claim.
Compare Richfield Oil Corp. v. State Board of
Equalization, 329 U. S. 69;
Pope v. Atlantic Coast Line R. Co., 345 U.
S. 379;
Construction Laborers v. Curry, ante,
p.
371 U. S. 542.
Quite the contrary, appellants vigorously deny their liability on
the merits of the appellee's claim.
Nor is this a case like
Radio Station WOW v. Johnson,
326 U. S. 120,
where the challenged order required an immediate transfer of
property, and where the remaining matters left to be disposed of in
the state court were wholly unrelated, would almost certainly have
raised no federal question, and could not have mooted the question
sought to be reviewed. Here, a victory for appellants on the merits
would clearly moot the federal question before us today.
"It is of course not our province to discourage appeals. But for
the soundest of reasons we
Page 371 U. S. 574
ought not to pass on constitutional issues before they have
reached a definitive stop."
Republic Natural Gas Co. v. Oklahoma, 334 U. S.
62,
334 U. S.
71.
On the other hand, if appellants lost on the merits, the venue
question raised in the present appeals would then be open for
review by this Court. Hence, the controversy is wholly different
from
Cohen v. Beneficial Industrial Loan Corp.,
337 U. S. 541,
337 U. S. 546,
where the challenged order would not have been merged in the final
judgment and where, unless immediate review had been granted, no
appellate determination of the right claimed could ever have been
obtained.
Failing to come within any of these limited exceptions,
appellants fall back on the familiar assertion that they should not
be subjected to a burdensome trial in the wrong forum, a claim
which the Court finds compelling. But surely such a claim cannot be
accepted, for there is a large variety of situations in which a
ruling on a preliminary matter will determine whether or not the
case is to continue; yet a decision that does not definitively
terminate the case is plainly not final. To rely on the hardship of
being subjected to trial is to do away with the distinction between
interlocutory and final orders. It is for this reason that the
Court has always held that the hazard of being subjected to trial
does not invest a preliminary ruling with the finality requisite to
appeal.
E.g., Parr v. United States, 351 U.
S. 513,
351 U. S.
519-520.
This is not a case of first impression. In
Cincinnati Street
R. Co. v. Snell, 179 U. S. 395, the
railway company sought to appeal from a determination by the
highest court of the State directing a change of venue and
remanding the case for further proceedings. The railway company
contended that the state law under which the change of venue had
been ordered was unconstitutional. The case is thus squarely in
point, since the appellants here are also challenging the
constitutionality of the application
Page 371 U. S. 575
of local venue provisions. This Court unanimously dismissed the
writ of error for lack of finality, stating:
"It is true that the order appealed from finally adjudges that a
change of venue should have been allowed; but the same comment may
be made upon dozens of interlocutory orders made in the progress of
a cause. Indeed, scarcely an order is imaginable which does not
finally dispose of some particular point arising in the case; but
that does not justify a review of such order, until the action
itself has been finally disposed of. If every order were final
which finally passes upon some motion made by one or the other of
the parties to a cause, it might in some cases require a dozen
writs of error to dispose finally of the case."
179 U.S. at
179 U. S.
397.
The
Cincinnati case also shows the invalidity of the
argument of these appellants that they may be spared a trial if
their venue claim is presently sustained. For the Court in
Cincinnati was unmoved by the circumstance that the
railway company there had already won a jury verdict which had been
set aside by the state court because of faulty venue.
A
fortiori, in a proceeding where the action has not yet been
tried, the Court should be deaf to the similar claims of these
appellants.
The Court's decision in these appeals throws the law of finality
into a state of great uncertainty, and will, I am afraid, tend to
increase future efforts at piecemeal review. [
Footnote 3/3]
These appeals should be dismissed.
[
Footnote 3/1]
28 U.S.C. § 1257 limits the appellate jurisdiction of this Court
to review of "[f]inal judgments or decrees rendered by the highest
court of a State in which a decision could be had."
[
Footnote 3/2]
As the Court stated in the
Catlin case, 324 U.S. at
324 U. S.
236:
"[D]enial of a motion to dismiss, even when the motion is based
upon jurisdictional grounds, is not immediately reviewable. . . .
Certainly this is true whenever the question may be saved for
disposition upon review of final judgment disposing of all issues
involved in the litigation. . . ."
[
Footnote 3/3]
The Court appears to suggest that these appeals are unique
because the decisions were appealable under state law and because
national banks are making a substantial claim of a conflict between
a federal and a state statute. But I fail to see how the
appealability of interlocutory orders under state law, the identity
of the appellants, or the substantiality of the federal claim
asserted can have any bearing on whether the judgments appealed
from are final.