Venue in a suit against a national banking association charged
with violating the Securities Exchange Act of 1934 held to be
governed by the venue provision of the National Bank Act, 12 U.S.C.
§ 94, which provides that an action against a national banking
association may be had in any federal district court within the
district in which such association may be established, rather than
by § 27 of the Securities Exchange Act, which provides that any
action to enforce any liability or duty under that Act may be
brought in any district where the violation occurred or in the
district wherein the defendant is found or transacts business. Pp.
426 U. S.
152-158.
(a) Under a basic principle of statutory construction,
"[w]here there is no clear intention otherwise, a specific
statute will not be controlled or nullified by a general one,
regardless of the priority of enactment."
Morton v. Mancari, 417 U. S. 535,
417 U. S.
550-551. Pp. 153-154.
(b) A
pro tanto repeal of § 94 by implication is not
indicated on the ground that the two Acts are irreconcilable, since
the underlying purpose of the Securities Exchange Act (enacted 70
years after the National Bank Act) was, not to regulate the
activities of national banks as such, but to promote fair dealing
on the securities markets; and the broad § 27 venue provision was
intended to further that goal by enabling enforcement suits to be
brought wherever a defendant could be found, whereas the narrow §
94 venue provision was intended for the convenience of banking
institutions, and to prevent interruption of their business that
might result from their books being sent great distances. In the
very few instances where actions for securities violations are
brought against banking institutions, the requirement that suit
be
Page 426 U. S. 149
brought were the defendant is established is no insurmountable
burden. Pp.
426 U. S.
154-157.
(c) Nor is repeal of § 94 to be implied on the ground that the
later securities statute covers the whole subject of the earlier
bank statute. The subjects covered by the two statutes are wholly
different, and nothing in the legislative history of the securities
statute manifests an intention to
pro tanto repeal § 94.
Pp.
426 U. S.
157-158.
516 F.2d 896, affirmed.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and
REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion,
post, p.
426 U. S.
158.
MR. JUSTICE STEWART delivered the opinion of the Court.
This case requires us to determine which venue provision
controls in the event a national banking association is sued in a
federal court for allegedly violating the Securities Exchange Act
of 1934: the broad venue provision of the Securities Exchange Act,
which allows suits under that Act to be brought in any district
where the defendant may be found, or the narrow venue provision of
the National Bank Act, which allows national
Page 426 U. S. 150
banking associations to be sued only in the district where they
are established.
The petitioner, Hyman Radzanower, instituted a class action in
the District Court for the Southern District of New York alleging,
inter alia, that the respondent, First National Bank of
Boston, a national banking association with its principal office in
Boston, Mass. had violated the federal securities laws by failing
to disclose to the Securities and Exchange Commission and the
investing public its knowledge of certain adverse financial
information about one of its customers, the TelePrompter
Corporation, and of securities laws violations by that company. The
complaint alleged that venue was proper under § 27 of the
Securities Exchange Act of 1934, 48 Stat. 902, 15 U.S.C. § 78aa,
which provides that
"[a]ny suit or action to enforce any liability or duty created
[by or under the Securities Exchange Act] . . . may be brought in
any such district [wherein any act or transaction constituting the
violation occurred] or in the district wherein the defendant is
found or is an inhabitant or transacts business. . . ."
The bank moved to dismiss the complaint as to it, asserting that
venue as to it lay only under the venue provision of the National
Bank Act, Rev.Stat. § 5198 (1878), 12 U.S.C. § 94. That section
provides that
"[a]ctions and proceedings against any [national banking]
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. . . . [
Footnote 1] "
Page 426 U. S. 151
Following the settled law of the Second Circuit, the District
Court granted the bank's motion to dismiss. It held that, "[a]bsent
waiver or consent, a national bank may be sued only in the district
in which it is established. 12 U.S.C. Section 94." The court noted
that the bank was established in Boston "because its charter
specifies Boston as its principal place of business," [
Footnote 2] and it rejected the
petitioner's claim that the bank had waived the provisions of § 94.
[
Footnote 3] The Court of
Appeals affirmed without opinion. [
Footnote 4] Because of differing views in the Circuits as
to the statutory venue question presented, [
Footnote 5] we granted the petition for certiorari. 423
U.S. 911.
Page 426 U. S. 152
Section 94 provides that suits against a national banking
association "may be had" in the federal district court for the
district where such association is established. The Court has held
that this grant of venue is mandatory and exclusive:
"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."
Mercantile Nat. Bank v. Langdeau, 371 U.
S. 555,
371 U. S. 560.
Accord, Michigan Nat. Bank v. Robertson, 372 U.
S. 591;
National Bank v. Associates of
Obstetrics, 425 U. S. 460.
[
Footnote 6] The venue
provision of the Securities Exchange Act, by contrast, allows suits
under that Act to be brought anywhere that the Act is violated or a
defendant does business or can otherwise be found. It is the
petitioner's contention that, when a national bank is named as a
defendant in a suit brought under the Securities Exchange Act, it
loses the protection of the venue provisions of § 94 and may be
sued in any federal judicial district where that Act was violated
or where it does
Page 426 U. S. 153
business or can be found. For the reasons that follow, we cannot
accept that contention.
It is a basic principle of statutory construction that a statute
dealing with a narrow, precise, and specific subject is not
submerged by a later enacted statute covering a more generalized
spectrum.
"Where there is no clear intention otherwise, a specific statute
will not be controlled or nullified by a general one, regardless of
the priority of enactment."
Morton v. Mancari, 417 U. S. 535,
417 U. S.
550-551. [
Footnote
7]
"The reason and philosophy of the rule is that, when the mind of
the legislator has been turned to the details of a subject and he
has acted upon it, a subsequent statute in general terms, or
treating the subject in a general manner, and not expressly
contradicting the original act, shall not be considered as intended
to affect the more particular or positive previous provisions
unless it is absolutely necessary to give the latter act such a
construction in order that its words shall have any meaning at
all."
T. Sedgwick, The Interpretation and Construction of Statutory
and Constitutional Law 98 (2d ed. 1874). [
Footnote 8]
When Congress enacted the narrow venue provisions of the
National Bank Act, it was focusing on the particularized problems
of national banks that might be sued in the state or federal
courts. When, 70 years later,
Page 426 U. S. 154
Congress enacted the Securities Exchange Act, its focus was on
the objective of promoting fair dealing in the securities markets,
and it enacted a general venue provision applicable to the broad
universe of potential defendants subject to the prohibitions of
that Act. Thus, unless a "clear intention otherwise" can be
discerned, the principle of statutory construction discussed above
counsels that the specific venue provisions of § 94 are applicable
to the respondent bank in this case.
Fourco Glass Co. v.
Transmirra Products Corp., 353 U. S. 222.
The issue thus boils down to whether a "clear intention
otherwise" can be discovered -- whether, in short, it can be fairly
concluded that the venue provision of the Securities Exchange Act
operated as a
pro tanto repeal of § 94. "It is, of course,
a cardinal principle of statutory construction that repeals by
implication are not favored."
United States v. United
Continental Tuna Corp., 425 U. S. 164,
425 U. S. 168.
[
Footnote 9] There are,
however,
"two well settled categories of repeals by implication -- (1)
where provisions in the two acts are in irreconcilable conflict,
the later act to the extent of the conflict constitutes an implied
repeal of the earlier one; and (2) if the later act covers the
whole subject of the earlier one and is clearly intended as a
substitute, it will operate similarly as a repeal of the earlier
act. But, in either case, the intention of the legislature to
repeal must be clear and manifest. . . ."
Posadas v. National City Bank, 296 U.
S. 497,
296 U. S. 503.
It is evident that the "two acts" in this case fall into neither of
those categories.
Page 426 U. S. 155
The statutory provisions at issue here cannot be said to be in
"irreconcilable conflict" in the sense that there is a positive
repugnancy between them or that they cannot mutually coexist. It is
not enough to show that the two statutes produce differing results
when applied to the same factual situation, for that no more than
states the problem. Rather, "when two statutes are capable of
co-existence, it is the duty of the courts . . . to regard each as
effective."
Morton v. Mancari, supra at
417 U. S. 551.
As the Court put the matter in discussing the interrelationship of
the antitrust laws and the securities laws:
"Repeal is to be regarded as implied only if necessary to make
the [later enacted law] work, and even then only to the minimum
extent necessary. This is the guiding principle to reconciliation
of the two statutory schemes."
Silver v. New York Stock Exchange, 373 U.
S. 341,
373 U. S. 357.
[
Footnote 10]
Here, the basic purposes of the Securities Exchange Act can be
fairly served by giving full effect to the provisions of 12 U.S.C.
§ 94. The primary purpose of the Securities Exchange Act was not to
regulate the activities of national banks as such, but
"[t]o provide fair and honest mechanisms for the pricing of
securities [and] to assure that dealing in securities is fair and
without undue preferences or advantages among investors. . . ."
H.R.Rep. No. 9229, p. 91 (1975). [
Footnote 11]
Page 426 U. S. 156
Its venue provision, § 27, was intended to facilitate that goal
by enabling suits to enforce rights created by the Act to be
brought wherever a defendant could be found. The venue provision of
the National Bank Act, § 94, was intended, on the other hand,
"for the convenience of those [banking] institutions, and to
prevent interruption in their business that might result from their
books being sent to distant counties. . . ."
Charlotte Nat. Bank v. Morgan, 132 U.
S. 141,
132 U. S. 145,
quoted in
Mercantile Nat. Bank v. Langdeau, 371 U.S. at
371 U. S.
561-562, n. 12.
By allowing suits against national banks to be brought only
pursuant to § 94, the purposes of that section will obviously be
served. Yet application of § 94 will not "unduly interfere" with
the operation of the Securities Exchange Act.
See Gordon v. New
York Stock Exchange, 422 U. S. 659,
422 U. S. 686.
Section 94 will have no impact whatever upon the vast majority of
lawsuits brought under that Act. In the tiny fraction of litigation
where its effect will be felt, it will foreclose nobody from
invoking the Act's provisions. Members of the investing public will
still be free to bring actions against national banks under the
Act. While suits against this narrow and infrequent category of
defendants will have to be brought where the defendant is
established, that is hardly an insurmountable burden in this day of
easy and rapid transportation. [
Footnote 12] Since it is possible for the statutes to
coexist in this manner, they are not so repugnant
Page 426 U. S. 157
to each other as to justify a finding of an implied repeal by
this Court. It is simply not "necessary" that § 94 be repealed in
part in order "to make the Securities Exchange Act work."
See
Silver v. New York Stock Exchange, supra at
373 U. S.
357.
Moreover, it cannot be said either that "the later act covers
the whole subject of the earlier one, and is clearly intended as a
substitute," or that "the intention of the legislature to repeal
[is] clear and manifest." 296 U.S. at
296 U. S. 503.
The Securities Exchange Act of 1934 covers a "subject" quite
different from the National Bank Act. The 1934 Act was enacted
primarily to halt securities fraud, not to regulate banks. Indeed,
banks were specifically exempted from many provisions of the
securities laws, [
Footnote
13] and Congress almost contemporaneously enacted other
specific legislation dealing with the problems arising from banks'
involvement in the securities business. [
Footnote 14] The passage of that legislation and the
exemption of national banks from important provisions of the
securities laws suggest, if anything, that Congress was reaffirming
its view that national banks should be regulated separately by
specific legislation applying only to them. [
Footnote 15] And there is nothing in the
legislative history of
Page 426 U. S. 158
the Securities Exchange Act to support the view that Congress,
in enacting it, gave the slightest consideration to the
pro
tanto repeal of § 94, let alone to indicate "that Congress
consciously abandoned its [prior] policy,"
Morton v.
Mancari, 417 U.S. at
417 U. S. 551,
or that its intent to repeal § 94
pro tanto was "
clear
and manifest,'" United States v. Borden Co., 308 U.
S. 188, 308 U. S. 198,
quoting Red Rock v. Henry, 106 U.
S. 596, 106 U. S. 602.
[Footnote 16]
For these reasons, it is impossible to conclude that § 94 was
partially repealed by implication in 1934. It follows, under the
general principles of statutory construction discussed above, that
the narrowly drawn, specific venue provision of the National Bank
Act must prevail over the broader, more generally applicable venue
provision of the Securities Exchange Act. We conclude, therefore,
that a national banking association is subject to suit under the
Securities Exchange Act only in that district wherein it is
established, and that the judgment before us must accordingly be
affirmed.
It is so ordered.
* [REPORTER's NOTE: This case was docketed under the caption
shown. However, the respondent is the First National Bank of
Boston. Touche Ross & Co. and others besides the bank, though
parties defendant, were not parties to the proceeding in the Court
of Appeals, and are not respondents in this Court.]
[
Footnote 1]
Section 94 in its entirety reads:
"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 2]
The petitioner does not claim that the bank is "established"
anywhere else than in Boston. Federal courts have consistently
ruled that the place specified in a bank's charter as its home
office is determinative of the district in which the bank is
"established" for purposes of § 94.
See, e.g., Buffum v. Chase
Nat. Bank, 192 F.2d 58, 60 (CA7);
Leonardi v. Chase Nat.
Bank, 81 F.2d 19, 22 (CA2).
[
Footnote 3]
The opinion of the District Court is unreported.
It has long been settled that the restrictive venue provisions
of § 94 can be waived by a defendant bank.
See, e.g., Charlotte
Nat. Bank v. Morgan, 132 U. S. 141,
132 U. S. 145;
Michigan Nat. Bank v. Robertson, 372 U.
S. 591,
372 U. S. 594;
National Bank v. Associates of Obstetrics, 425 U.
S. 460.
Although the parties each devoted a portion of their briefs to
the waiver issue, that issue was not raised in the petition for
certiorari. Since we consider "[o]nly the questions set forth in
the petition or fairly comprised therein," this Court's Rule
23(1)(c), we have no occasion to pass on the correctness of the
decisions below on the waiver question.
[
Footnote 4]
The judgment of the Court of Appeals is reported at 516 F.2d
896.
[
Footnote 5]
The Second and Ninth Circuits have concluded that § 94 is the
exclusive venue provision governing suits against national banking
associations, while the Third Circuit has ruled that such suits may
also be brought pursuant to § 27 of the Securities Exchange Act.
Compare Bruns, Nordeman & Co. v. American Nat. Bank,
394 F.2d 300 (CA2),
and United States Nat. Bank v. Hill,
434 F.2d 1019 (CA9),
with Ronson Corp. v. Liquifin
Aktiengesellschaft, 483 F.2d 852 (CA3).
[
Footnote 6]
When the
Langdeau Court held that the words "may be
had" serve to provide mandatory and exclusive venue, it was dealing
with the relationship of § 94 to a state venue statute. Since the
same words are used in connection with the federal court venue
provision, the same construction is virtually inescapable.
"[I]t would indeed strain language to say that the same verbs
were merely permissive with respect to suits in federal courts,
although prohibitory as to actions in state ones."
Bruns, Nordeman & Co. v. American Nat. Bank, supra
at 303.
[
Footnote 7]
See Brown v. GSA, 425 U. S. 820;
Bulova Watch Co. v. United States, 365 U.
S. 753,
365 U. S. 758;
Rodgers v. United States, 185 U. S.
83,
185 U. S. 87-89
("It is a canon of statutory construction that a later statute,
general in its terms and not expressly repealing a prior special
statute, will ordinarily not affect the special provisions of such
earlier statute");
Ex parte Crow Dog, 109 U.
S. 556,
109 U. S.
570-571.
See also Fourco Glass Co. v. Transmirra
Products Corp., 353 U. S. 222;
Stonite Products Co. v. Melvin Lloyd Co., 315 U.
S. 561 (specific venue statutes for patent suits prevail
over general venue statutes).
[
Footnote 8]
See also 1A J. Sutherland, Statutes and Statutory
Construction § 23.15 (4th ed. C. Sands 1972).
[
Footnote 9]
See also Gordon v. New York Stock Exchange,
422 U. S. 659,
422 U. S. 682;
Regional Rail Reorganization Act Cases, 419 U.
S. 102,
419 U. S. 133;
Silver v. New York Stock Exchange, 373 U.
S. 341,
373 U. S. 357;
United States v. Borden Co., 308 U.
S. 188,
308 U. S.
198-199.
[
Footnote 10]
See also Gordon v. New York Stock Exchange, supra at
422 U. S. 685;
United States v. National Assn. of Securities Dealers,
422 U. S. 694,
422 U. S.
734-735.
[
Footnote 11]
The legislative history of the Securities Acts does not indicate
that Congress considered banks as likely defendants in actions
brought under those Acts. While Congress did examine problems
stemming from the relationship of banks and the securities business
in the early 1930's,
see S.Rep. No. 1455, 73d Cong., 2d
Sess. (1934), it dealt with those problems in comprehensive
legislation dealing only with banks.
See Banking Act of
1933, 48 Stat. 162.
See generally Investment Co. Institute v.
Camp, 401 U. S. 617.
[
Footnote 12]
The SEC has suggested that its enforcement activity under the
Securities Exchange Act will be hindered in cases of securities law
violations by geographically dispersed banks if it cannot sue all
defendants, including the banks, in one proceeding. The SEC,
however, was unable to cite a single instance in the last 40 years
where this situation has arisen. In any event, policy arguments
such as this are more appropriately addressed to Congress than to
this Court.
See Mercantile Nat. Bank v. Langdeau,
371 U. S. 555,
371 U. S.
563.
[
Footnote 13]
See 15 U.S.C. §§ 77c(a)(2), 771(2);
cf. 15
U.S.C. § 78c(a)(6).
[
Footnote 14]
See n 11,
supra.
[
Footnote 15]
This intention was expressly stated by Congress when it exempted
bank securities from the registration statements requirements of
the Securities Act of 1933: "[A]dequate supervision over the
issuance of securities of a national bank is exercised by the
Comptroller of the Currency." H.R.Rep. No. 85, 73d Cong., 1st
Sess., 14 (1933). Subsequent Congresses have continued to follow
this policy. For example, while national banks are subject to the
registration, reporting, and proxy requirements of the Securities
Exchange Act, in 1964, Congress amended the Act so that the
administration of those parts of the Act with respect to banks was
transferred from the SEC to the various federal banking
authorities.
See § 3(e), 78 Stat. 568, 15 U.S.C. §
78
l(i).
[
Footnote 16]
In 1959. Congress reviewed the National Bank Act and adopted an
Act designed "to repeal certain [national banking] laws which have
become obsolete."
See Pub.L. 8230, 73 Stat. 457. When it
did so, it did not repeal § 94.
MR. JUSTICE STEVENS, dissenting.
In my judgment, a brief reference to the history, purpose, and
language of these two special venue statutes will provide a better
guide to their meaning than the exposition of the doctrine of
implied repeal found in the treatise on statutory construction
written by Sedgwick in 1874. Indeed, if Sedgwick were to be our
guide, I would heed this advice: "When acts can be harmonized by a
fair and liberal construction it must be done." [
Footnote 2/1]
Page 426 U. S. 159
It is worth repeating that both of these statutes are special
venue statutes. Neither party relies on the general venue provision
in 28 U.S.C. § 1391. One relies on a special statute for one kind
of litigant -- national banks; the other relies on a special
statute for one kind of litigation -- cases arising under the
Securities Exchange Act of 1934. The precise issue before us
involves only a tiny fraction of the cases in either special
category: most litigation against national banks does not arise
under the Securities Exchange Act; and most litigation arising
under the Securities Exchange Act does not involve national banks.
Thus, with equal logic, we might describe either statute as
creating an exception from the somewhat more general provisions of
the other.
The rule that the legislature presumably intended to give effect
to the more specific statute could therefore be applied to support
the petitioner, as well as the respondent bank, in this case.
[
Footnote 2/2] Similarly, without
pausing to consider the reason why each statute was enacted, we
might simply apply the rule that the more recent of two
Page 426 U. S. 160
conflicting statutes shall prevail, [
Footnote 2/3] rather than the rule that the special
statute takes precedence over the general. But such abstract
reasoning is less instructive than a consideration of the source
and the need for the alleged conflict. Of special importance is an
evaluation of the intent of Congress when it enacted these
statutes.
The source of the special venue statute for national banks is
the Act to Provide a National Currency enacted in 1863 [
Footnote 2/4] and amended in 1864.
[
Footnote 2/5] When these statutes
were enacted, Congress apparently assumed that the
Page 426 U. S. 161
newly authorized national banks would not be subject to suit in
state courts unless Congress gave its express consent. [
Footnote 2/6] The fact that the statute was
phrased in permissive language suggests that Congress' primary
purpose was to give such consent. The mandatory construction given
to that language a century later when the Court decided
Mercantile Nat. Bank v. Langdeau, 371 U.
S. 555, is consistent with that purpose, because it is
unlikely that the Civil War Congress intended to authorize the
several States to subject national banks to the potential
harassment of defending litigation in places other than the county
or city where the bank was located. [
Footnote 2/7] This reason for placing a mandatory
limiting construction on the authorization for suit in the state
courts is not applicable to the separately enacted federal venue
provision; for, in any event, the federal courts could only
entertain such litigation against national banks as Congress might
authorize.
In 1934, when Congress enacted the Securities Exchange Act,
there was no reason for it to assume that the language in the
special jurisdictional and venue provisions of that statute would
not apply to national banks.
Langdeau would not be decided
until almost 30 years later, the language in the venue provision of
the Civil War banking legislation was permissive, and there was no
recognized policy reason supporting an exceptional venue privilege
for national banks in federal litigation. There was no longer any
doubt about the suability of national banks in either state or
federal courts. Moreover, what once might have been regarded as the
significant burden of requiring a fledgling bank to haul its
records from one county to another within
Page 426 U. S. 162
the State, would hardly justify treating banks differently from
other litigants in the 20th century.
On the other hand, the special venue section included in the
Securities Acts was specifically designed to implement an important
legislative objective. Indeed, in construing the comparable
provision in the 1933 statute, the Court held that its benefits are
so crucial to the legislative purpose that they cannot be waived.
[
Footnote 2/8] In contrast, it is
well settled that a national bank's special venue privilege is
waivable. [
Footnote 2/9]
Manifestly, there is a
Page 426 U. S. 163
difference between the importance of the policies underlying the
two statutes.
But there is no necessary conflict. Since he two Acts can be
harmonized by a fair and liberal construction, if we heed
Sedgwick's counsel, that "must be done." As already noted, the
actual wording of the earlier statute, which used the words "may be
had" provides no conflict with a literal reading of the later Act.
The conflict is created solely by this Court's interpretation of
those words as, in effect, meaning that the trial of a case against
a national bank "must be had" in the place specified by Congress,
rather than the place specified by a state legislature. If we so
read the statute, we need only conclude that any later enacted
special venue statute which, by its own terms, applies to national
banks should be read to mean what it says. Preoccupation with the
ancient doctrine of implied repeal should not foreclose this simple
construction of the plain language of the 1934 Act. [
Footnote 2/10]
Page 426 U. S. 164
The rule that repeals by implication are not favored, like all
other canons of statutory construction, is merely one of the
guidelines to observe in the search for a construction which will
best reflect the real intent of the legislature. When we are
dealing with a well established and clearly defined old rule, it is
usually reasonable to suppose that the legislative intent to change
such a rule would be unambiguously expressed. Or if we are dealing
with an old rule that is an established and important part of our
national policy, we must be sure that it is not changed simply by
inadvertent use of broad statutory language. Thus, if Congress
intended to modify the long-settled practice of preferential hiring
of Indians on Indian reservations, [
Footnote 2/11] or to limit the coverage of a statute as
important as the Sherman Act, [
Footnote 2/12] a court would require an unambiguous
expression of intent to make such a change; without such an
expression, it is reasonable to believe that inadvertence, rather
than an intent to repeal, is the actual explanation for the broad
language that arguably changes the old rule. [
Footnote 2/13] But if neither the
Page 426 U. S. 165
existence of, nor the reason for, the old rule is clear at the
time of the later enactment, there is no special reason for
questioning the legislative intent to have the later statute mean
exactly what it says. Specifically, in this case, since it is clear
that Congress intended national banks to be covered by some
sections of the Securities Exchange Act, but not others, [
Footnote 2/14] and since the purpose of
authorizing a broader venue in this type of litigation applies with
equal force to national banks and other defendants, the canon of
construction strikes me as an unreliable guide for ascertaining the
true intent of Congress.
Congress may well have simply overlooked the special venue
provision in the Civil War statute, particularly since
Langdeau had not yet been decided. It may therefore be
accurate to describe the omission of any reference to the earlier
statute in the legislative history of the later one as inadvertent.
But that merely raises the question of whether it is more realistic
to imply an exception to the applicable language of the 1934 Act or
to conclude that, if Congress had thought about this preference for
national banks, it nevertheless would have enacted the statute it
did enact in 1934. There is no doubt in my mind that the 1934
Congress would have done exactly what it did do even if it had
foreseen not
Page 426 U. S. 166
only this Court's decision in
Langdeau, but also the
Court's willingness to construe the federal venue provision in the
same "Draconian" fashion as the state provision, to use Judge
Friendly's typically appropriate adjective. I could understand a
legislative decision to exempt banks entirely from the coverage of
the new law on the theory that an interest in the solvency of
national banks entitles them to special immunity, but it seems
wholly unrealistic to assume that Congress would treat banks like
all other defendants for liability purposes and yet treat them
differently for venue purposes.
It is true that we are dealing with only a tiny fraction of the
litigation arising under the 1934 Act or of the litigation
involving national banks. But that fact merely minimizes the
likelihood that a busy Congress will correct an inequitable and
anachronistic situation. It is also true that holding the trial in
one forum. rather than another. is hardly an insurmountable burden
on either the plaintiff or the bank in this day of easy and rapid
transportation -- unlike the situation in the Civil War period,
when the statute that the Court considers controlling was enacted
-- but the burden on the judiciary is increased by requiring
multiple trials whenever national banks participate in an allegedly
unlawful securities offering.
In sum, whatever canon of statutory construction is applied, I
am persuaded that we are most apt to reflect the intent of Congress
faithfully if we give effect to the plain meaning of the 1934 Act,
and thereby place banks on an equal footing with other corporations
which must defend litigation of this kind.
I therefore respectfully dissent.
[
Footnote 2/1]
T. Sedgwick, The Interpretation and Construction of Statutory
and Constitutional Law 98 n. (a) (2d ed. 184). Coincidentally, this
advice is found on the same page from which the Court quotes,
ante at
426 U. S. 153.
We have repeated this principle of statutory construction many
times.
See, e.g., United States v. Borden Co.,
308 U. S. 188,
308 U. S. 198:
"When there are two acts upon the same subject, the rule is to give
effect to both, if possible."
[
Footnote 2/2]
The rule that the more specific legislation will usually take
precedence over the more general rests on the quite reasonable
assumption that the legislature's attention was probably focused
more directly on the subject matter of the specific than on only
one aspect of a much broader subject matter. But since the venue
provision of the Civil War banking legislation was a relatively
inconsequential part of the entire statute, there is no reason to
assume that it was given any more attention than the venue
provision in the Securities Exchange Act of 1934.
[
Footnote 2/3]
Sedgwick quotes this familiar rule with approval:
"
Leges posteriores, priores contrarias abrogant. 'If
two inconsistent acts be passed at different times, the last,' said
the Master of the Rolls, 'is to be obeyed; and if obedience cannot
be observed without derogating from the first, it is the first
which must give way. Every act of Parliament must be considered
with reference to the state of the law subsisting when it came into
operation, and when it is to be applied; it cannot otherwise be
rationally construed. Every act is made either for the purpose of
making a change in the law or for the purpose of better declaring
the law, and its operation is not to be impeded by the mere fact
that it is inconsistent with some previous enactment.'"
Sedgwick,
supra at 104.
See
also United States v.
Tynen, 11 Wall. 88,
78 U. S. 92.
[
Footnote 2/4]
12 Stat. 665, 681.
[
Footnote 2/5]
The federal venue provision was first enacted in 1863, 12 Stat.
681, and, in the following year, the provision was amended to
authorize suit in state courts. Section 57 of the 1864 Act, which
is the predecessor of 12 U.S.C. § 94, reads, in pertinent part as
follows:
"SEC. 57.
And be it further enacted, 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.
[
Footnote 2/6]
See Charlotte Nat. Bank v. Morgan, 132 U.
S. 141,
132 U. S. 144;
First Nat. Bank v. Union Trust Co., 244 U.
S. 416,
244 U. S.
428.
[
Footnote 2/7]
Charlotte Nat. Bank v. Morgan, supra at
132 U. S.
145.
[
Footnote 2/8]
"The Act's special right is enforceable in any court of
competent jurisdiction -- federal or state -- and removal from a
state court is prohibited. If suit be brought in a federal court,
the purchaser has a wide choice of venue, the privilege of
nation-wide service of process, and the jurisdictional $3,000
requirement of diversity cases is inapplicable."
Wilko v. Swan, 346 U. S. 427,
346 U. S. 431.
Referring to the analogous provision in the Federal Employers'
Liability Act, the Court added:
"We said the right to select the 'forum' even after the creation
of a liability is a 'substantial right.' and that the agreement,
restricting that choice, would thwart the express purpose of the
statute. We need not and do not go so far in this present case. By
the terms of the agreement to arbitrate, petitioner is restricted
in his choice of forum prior to the existence of a controversy.
While the Securities Act does not require petitioner to sue, a
waiver in advance of a controversy stands upon a different footing.
. . . On the other hand, it has enacted the Securities Act to
protect the rights of investors, and has forbidden a waiver of any
of those rights."
Id. at
346 U. S.
438.
[
Footnote 2/9]
"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."
Charlotte Nat. Bank v. Morgan, supra at
132 U. S. 145.
See also Michigan Nat. Bank v. Robertson, 372 U.
S. 591,
372 U. S. 594;
National Bank v. Associates of Obstetrics, 425 U.
S. 460.
[
Footnote 2/10]
Although the Second Circuit decision in
Bruns, Nordeman Co.
v. American Nat. Bank, 394 F.2d 300, 303 (1968), supports the
result reached by the Court in this case, Judge Friendly expressed
the opinion that, if the court were writing on a clean slate, it
would have reached a contrary conclusion; it reached the result it
did only because it felt bound by a prior decision of the Second
Circuit which it characterized as giving
"a construction to the clause of § 94 dealing with the venue of
suits in a federal court quite as Draconian as the Supreme Court
has done with respect to the state court clause."
The earlier Second Circuit precedent made no analysis of the
question whether the clause should be given a mandatory or
permissive construction.
See Leonardi v. Chase Nat. Bank,
81 F.2d 19 (1936). It is also noteworthy that, when the Third
Circuit considered the question, it concluded that the venue
provision of the Securities Exchange Act should be accepted at face
value.
See Ronson Corp. v. Liquifin Aktiengesellschaft,
483 F.2d 852 (1973);
contra: United States Nat. Bank v.
Hill, 434 F.2d 1019 (CA9 1970). The American Law Institute,
Study of the Division of Jurisdiction between State and Federal
Courts 413 (1969), pointed out that there
"is no obvious reason why a national bank requires a unique and
restrictive venue rule, and cannot be treated as is any other
corporation for purposes of venue."
[
Footnote 2/11]
The policy of according hiring preference to Indians in the
Bureau of Indian Affairs which was involved in
Morton v.
Mancari, 417 U. S. 535,
417 U. S.
550-551, was not only perfectly clear, but had been
consistently recognized since at least as far back as 1934.
[
Footnote 2/12]
See, e.g., United States v. Borden Co., 308 U.
S. 188,
308 U. S. 198;
United States v. Philadelphia Nat. Bank, 374 U.
S. 321,
374 U. S.
350-351;
Silver v. New York Stock Exchange,
373 U. S. 341,
373 U. S. 359;
United States v. National Assn. of Securities Dealers,
422 U. S. 694,
422 U. S.
719-720.
[
Footnote 2/13]
When Congress intends to change a well recognized and well
established rule of law, it customarily provides us with evidence
of that specific intent. But it is unrealistic to expect the
Legislature to consider and expressly mention the impact of a new
statute on every old rule that it may modify, particularly if the
old rule is not only unimportant but not even clearly stated at the
time the new statute is enacted. In such a setting, the new statute
should be interpreted in the light of its own history with the
expectation that a certain amount of ancient underbrush will
inevitably be cut away. Only to the extent that the old roots
retain sufficient vitality to support some desirable and
discernible purpose at the time of the later enactment is there any
real justification for avoiding an implied repeal.
[
Footnote 2/14]
The Securities Act of 1933 contains explicit exemptions for
national banks at 15 U.S.C. §§ 77c(a)(2), 771(2), as does the
Securities Exchange Act at 15 U.S.C. § 78
l(i).