Platt v. Beach

19 F. Cas. 836 | E.D.N.Y | 1868

BENEDICT, District Judge.

This is an action at common law, brought by a receiver of a national bank. A demurrer has been interposed to the complaint, for the purpose of raising the question of the right of the plaintiff to maintain such an action in a court of the United States. The claim to this right, on the part of the plaintiff, is based solely upon the fourth section of the act of March 3, 1S15, it being conceded that there is no provision in the act creating the national banks, which expressly gives to the national courts jurisdiction of such an action. The provision in the act,of 1815 relied on, confers upon the district and circuit courts of the United States, jurisdiction of “all suits at common law where the United States or any officer thereof,, under the authority of any act of congress, shall sue;” and the question is, whether a receiver of a national bank appointed by the comptroller of the currency, with the concurrence of the secretary of the treasury, in accordance with the provision in section thirty-one of the act of June 3, 1864 (volume 13, c. 10), which provides for the creation and winding up of the national banks, is an officer of the United States within the meaning of the fourth section of the act of 1815 above referred to? .As to the construction of this latter act, it can hardly be doubted, I apprehend, that it includes all persons holding office under any act of congress, whose appointment is required, by law, to be made in the mode prescribed by the constitution for the appointment of officers of the United States. The provision of the constitution (article 2. § 2, subd. 2) is this:

“The president shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law. But the congress may, by law, vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments.”

If, then, this receiver, who is appointed under an act of congress to perform certain official duties by virtue of the act, is by law required to be appointed by the president, a court of law, or a head of a department, he must be deemed to have the right, under the act of 1815, to resort to this court to bring such actions as he may be required to bring in the discharge of the duties imposed upon him by law. The mode of his appointment is prescribed in the same provision which provides for the appointment of such a receiver, as follows: “The comptroller of the currency, may, with the concurrence of the secretary of the treasury, appoint a receiver to wind up the business of such association, as provided by the act.” Section 13; 13 Stat. 709. An appointment so made is equivalent in law to an appointment by the secretary of the treasury, who is the head of a department. This same question has arisen in regard to inspectors of the customs who are appointed under the act of March 2,1799. which provides that the collector “shall, with the approbation of the principal officer of the treasury department, employ proper persons as weighers, gaugers, measurers and inspectors.” Under this act it was long ago decided that inspectors of the customs were, in law, officers appointed by the head of the treasury department U. S. v. Barton [Case No. 14,534]; U. S. v. Morse [Id. 15,820]; Sanford v. Boyd [Id. 12,311]; Ex parte Smith [Id. 12,967]. The words of the banking act are certainly as strong as those used in the act of 1799, and must be held to have the like effect. It follows, then, that the plaintiff is an officer of the United States as defined by the constitution, and accordingly within the meaning of the act of March 3, 1815. The nature of the duties imposed upon a receiver of a national bank also leads to the same conclusion. These duties are not defined By any contract, but by law and rule prescribed by the government They are similar to those appertaining to an ordinary receiver appointed by a court. But such receivers have always been considered to be officers (Bouv. Law Diet., word “receiver”; Edw. Rec., p. 3), and they are officers of the court which appoints them. The plaintiff, then, is an officer, and as it is not seen how he can be considered to be an officer of any court, he must be an officer of the government which appoints him, into whose treasury he is required to pay all moneys he shall collect, by whose district attorney he is required by law to be represented in court, and under the direction and supervision of whose solicitor of the treasury all his suits and proceedings are to be conducted. Section 5G. The judgment must accordingly be in favor of the plaintiff upon the demurrer, with leave to the defendant to answer on payment of costs.