6 F. 737 | U.S. Cir. Ct. | 1881
The complainant is a national bank, organized under the act of congress, and has its place of business in Youngstown, Mahoning county, Ohio. It complains of James B. Hughes, auditor, and Monroe W. Johnson, prosecuting attorney, of said eounty, and charges that previous to and on the second Monday of April, 1880, it was, and has ever since been, engaged in the business of hanking, authorized by law, and that it then had and has continued to have not less than $400,000 of deposits, which it employed in its business, and from which it derived profit. Protesting that “it is not subject to any visitorial powers other than such'as are authorized by said act of congress or vested in the courts of the country,” it proceeds to complain “that the said James J3. Hughes, auditor of Mahoning county, protending to act by authority of section 2782, Bevised Statutes of Ohio, did, on or about the twenty-second day of Juno, 1880, issue and cause to be served upon William H. Baldwin, the cashier of your orator, a written order commanding the said Baldwin, as such cashier, to appear before said auditor on the twenty-
Complainant avers that “none "of said acts done, or threatened to be done,” by defendants, “and none of the proceedings had by said probate judge, are in anywise authorized by said act of congress, or by any act of congress, and that the production of your orator’s books of account before either said auditor or said probate judge is not authorized by either of said sections of the Bevised Statutes of Ohio, or any of the laws of said state; and that all of said acts are prohibited by section 5241 of the Bevised Statutes of the United States, and that the necessary result of said acts so as aforesaid threatened and about to be done, will be, by unlawfully exposing your orator’s business affairs, to lessen public confidence in it as a depository of money, and to diminish its deposits, and greatly impair the value of the franchise with which it is invested.”
Upon the allegations, duly verified by the oath of its president, the complainant prayed for an injunction to restrain the defendants James B. Hughes, auditor, and Monroe W. Johnson, prosecuting attorney, “from any further proceedings or attempts to inspect or have produced, before said auditor or said probate judge, any of the books of account or papers of your orator, and from any and all proceedings or attempts to compel the said William H. Baldwin, cashier of your orator, or any other of your orator’s officers or servants having knowledge of its business affairs, to testify as to the deposit accounts or other accounts of your orator.”
The auditor was, as we understand the ease stated by the complainant, proceeding under and in exact accordance with sections 2782 and 2783 of the Revised Statutes of Ohio. These sections charge him with the duty of making correct tax duplicates of personal property taxable under the laws of the state; and, to enable him to discharge the responsible and delicate trust thus imposed on him, he is authorized and commanded, in case he has reason to believe, or shall be informed, that any person liable to such tax has made a false return to the assessor, to proceed to correct such return and charge the delinquent on the duplicate with the true amount for which he is liable; and to this end he is authorized to issue compulsory process, require the attendance of witnesses, and examine them on oath. But if any person so summoned shall neglect or refuse to attend, or, appearing, refuse to answer any lawful question propounded to him, the auditor is commanded to apply to the probate judge of the county to issue a subpoena for such contumacious witness to appear and give evidence before said probate judge; and in the event any person or persons so summoned by the probate judge shall fail to appear, or, appearing, shall refuse to give testimony, he shall be subject to like proceedings for contempt as defaulting witnesses duly summoned in actions pending in said probate court.
The complainant insists — First, that it is protected from the proposed investigation by section 5241 of the United States Revised Statutes. This section provides that no association (meaning national banking associations) shall be subject to any visitorial •powers other than such as are authorized by this title (63) or are vested in the courts of the country.
But do the defendants, or either of them, propose the exercise of visitorial authority? "We think not. Visitation, in law, is the act of a superior or superintending officer, who visits a corporation to examine into its manner of conducting business, and enforce an observance of its laws and regulations. Burrill defines the word to mean “inspection;
But complainant insists, secondly, that the proposed enforced exhibition of its books will expose its business, lessen public confidence, diminish its deposits and consequent profits, and impair the value of the franchise. We fail to see any sufficient reason for such grave apprehensions. But if complainant’s fears were well founded, the state might still be entitled to the testimony demanded. Private rights must to a reasonable extent yield to the public necessities. It is on this ground that a witness possessing knowledge of facts material to the vindication of the rights of another may be compelled by judicial process to appear and give evidence in behalf of that other party, notwithstanding the evidence thus coerced may uncover the witness’ private business and subject him to a civil action for damages. Such a witness thus duly summoned is even bound to make extraordinary efforts to attend. People v. Davis, 15 Wend. 602. For like reasons, and upon the same principles, persons in possession of written evidence, of whatsoever character, may be required to produce the saíne to be used as evidence; and it is no ground for the refusal of a witness to produce books or papers, when required by lawful authority, that they are private. Burnham v. Morrissey, 14 Gray, 226. Now if the courts are thus careful to assist private persons in procuring evidence for
But it is not incumbent on us to define the duty of the witness in the premises. When he refused to obey the auditor’s subpoena, jurisdiction of the controversy — on the auditor’s application to the probate judge to issue his subpoena commanding the witness to appear and give evidence before him —passed to and vested in the probate court, and hence, if the witness has any valid and sufficient excuse for his alleged contumacy, he must present and insist upon it before that tribunal. But the complainant replies for the witness, that, while the probate court has jurisdiction generally of controversies of this character, it has not such jurisdiction in cases in which national banks are parties, because, as it contends, the proceeding contemplated is in violation of their chartered rights. This objection has been disposed of. But if we concede complainant’s claim of exemption, etc., the responsibility of deciding the question is with the probate court, and not with us.
The plain meaning of the bill, however, is that the probate court will make an erroneous decision. Possibly it may. All courts are liable to err. But the possibility that it may err
We must, therefore, remit complainant to the probate court for such action as that court may, after due consideration, feel bound to take. The injunction will be dissolved. .Defendants’ demurrer will be sustained, and complainant’s bill dismissed with costs.