Mercantile Nat. Bank at Dallas v. Langdeau
Opinion of the Court
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.”1
“(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 On the one hand, the court interpreted § 94 as permissive only, not mandatory, and on the other, as having been repealed by an omnibus repealing clause in an 1882 statute
I.
The question of our appellate jurisdiction is quite similar to the one considered in Construction Laborers v. Curry, ante, p. 542, although there the jurisdiction of
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.
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.”
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 TJ. S. 528, 539; Montclair v. Ramsdell, 107 U. S. 147, 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.
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.
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
“[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.”18
It is also said that 28 U. S. C. § 1348,
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, 198-199. We find neither here. Section 5198, as construed in the Charlotte 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
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, 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.”
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.
[For dissenting opinion of Mr. Justice Harlan, see post, p. 572.]
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 associa*568 tion 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 repre*569 sentatives, 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 T873, 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.
*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, e. 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.”1 22 Stat. 163.
“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.”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.
*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.”
See Appendix, No. 4. The pertinent national bank legislation appears in the Appendix to this opinion, post, p. 567.
See Appendix, No. 6.
See Appendix, No. 8.
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 the 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 the United States, 9 Wheat. 738, and terminated in 1836 when its charter was permitted to expire. Ibid.
See Appendix, No. 1.
“[O]nr conclusion on this subject is fortified by the terms of § 57, c. 106, 13 Stat. 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 428. But cf. Claflin v. Houseman, 93 U. S. 130, 135.
See Appendix, No. 2.
See Appendix, No. 5.
See Appendix, No. 3.
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 467.
“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
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. 2279 (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
“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).
“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).
“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).
To be sure, Texas law does not permit frivolous joinder of defendants to insure a desired venue, see Stockyards Nat. Bank v. Maples,
See Appendix, No. 6. See note 13, supra, for state cases which have reached the same conclusion.
See Appendix, No. 8.
See Appendix, No. 7.
See Appendix, No. 5.
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.
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, §39 (1948).
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.
Dissenting Opinion
dissenting.
The Court’s opinion in these appeals, and some of the things said in Construction Laborers v. Curry, ante, p. 542, cut deeply into the statutory requirement of “finality” limiting our jurisdiction to review state court judgments.
That requirement is more than a technical rule of jsrocedure, yielding when need be to the exigencies of particular situations. Rather, it is a long-standing 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-
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. 542. Quite the contrary, appellants vigorously deny their liability on the merits of the appellee’s claim.
Nor are these appeals 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
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, 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, 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 appli
“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 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.
These appeals should be dismissed.
28 U. S. C. § 1257 limits the appellate jurisdiction of this Court to review of “[f]mal judgments or decrees rendered by the highest court of a State in which a decision could be had.”
As the Court stated in the Catlin case, 324 U. S., at 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
The Court appears to suggest that these appeals are unique because the decisions were appealable under state law and because national banks arc 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.
Reference
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- Mercantile National Bank at Dallas v. Langdeau, Receiver
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