Third Nat. Bank of St. Louis v. Harrison, 8 F. 721

Third Nat. Bank of St. Louis v. Harrison

8 F. 721

| U.S. Circuit Court for the District of Eastern Missouri | 1881

McCrary, C. L,

{orally.) It is insisted by counsel for defendant —First, that this court has no jurisdiction in the case under the act of congress, approved March 3, 1875, entitled “An act to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from the state courts, and for other purposes, ” which act, it is insisted, repeals all prior acts upon the subject of the jurisdiction of the circuit courts, including the provision *722authorizing suits therein by national banks. I am of the opinion that the jurisdiction-in this case cannot he maintained under the act of March 3, 1875, alone; and if the effect of that act is, as contended by counsel, to repeal so much of section 629 of the Revised Statutes as gives the circuit courts jurisdiction of all suits by or against any banking association established in the district for which the court is held, it follows that the present motion must be sustained. But it is very clear that the act of 1875 has no such sweeping effect as that claimed for it by counsel. It is a general statute on the subject of the jurisdiction of the circuit courts, and it does not repeal prior statutes conferring jurisdiction upon those courts in special eases, or overparticular controversies, unless it is clear from the language employed that such was the intent of congress. There is no express repeal of section 629 of the Revised Statutes. The law does not favor a repeal by implication, and in order to support such an appeal the repug-i nance between the latter and earlier statutes must be quite plain. If the subsequent act can be reconciled with the former it will not be : held to repeal it.

Again, it is a rule long settled that a later statute which is general and affirmative in its provisions does not abrogate a former which iparticular or special. Courts will not allow such an exposition of the statute as will 'revoke or alter, by construction of general words, a previous special statute, where the words may have their proper operation without it. These general propositions are so familiar and so well settled that it is unnecessary to quote authority to support themApplying them to the act of 1875 we are constrained to hold that it does not, either expressly or by necessary implication, repeal the tenth clause of section 629 of the Revised Statutes, under which this suit is brought. To give to the act of 1875 the construction contended for, and to hold that there is no other statute under which the circuit courts of the United States can in any ease have jurisdiction, would lead to consequences disastrous in their effects, and which congress could not. have had in contemplation. An examination of prior statutes will show numerous provisions under which suits may be brought in particular cases in the circuit courts of the United States, and some, at least, of which could not be maintained, under the act of 1875.

The remaining question is whether jurisdiction can be maintained under subdivision 10 of section 629, of the Revised Statutes, which, as we have seen, has not been repealed, and which gives the circuit courts of the United States jurisdiction “of all suits by or against any *723banking association established in the district for which the court is held, under any law providing for national banking associations.”

Counsel for defendant insists that under this statute it is not enough that the suit is brought by a national bank. It must, in his view, also appear that it involves the construction of some provision of the constitution, or of a treaty, or of some law of the United States. Ever since the decision of the supreme court in the case of Osborne v. U. S. Bank, 9 Wheat. 738, it has been taken as settled that it is competent for congress to eonfer upon a national bank created by it the right to sue in the federal courts by reason of their character as such. An examination of the opinion of Chief Justice Marshall in that case will show that he placed the right to sue upon the simple ground that the bank was chartered by congress, lie insisted that the right of the bank to sue at all in any court depended upon a law of the United States; that this question of the right to sue, however clear it might be, and however well settled, was still a question that might be renewed in every case, and therefore one which forms an original ingredient in every cause. He said: “Whether it bo in fact relied on in the defence, it is still a part of the cause, and may be relied on. The right of this plaintiff to sue cannot be dependent on the defence which the defendant may choose to set up. His right to sue is anterior to that defence, and must depend on the state of things where the action is brought. The questions which the case involves, then, mast determine its character, whether those questions bo made in the cause or not.” This ruling, as I have had occasion heretofore to decide, applies with full force to the construction of the present national banking law. See Foss v. First Nat. Bank of Denver, 1 McCrary, 474.* In numerous cases in this court it has been taken for granted that the ruling of the supreme court in Osborne v. U. S. Bank is conclusive upon this question. See Bank v. County of Douglas, 3 Dill. 298, and note.

In the case of Bethel v. Pahquioque Bank, 14 Wall. 395, Mr. Justice Clifford, in delivering the opinion of the supreme court, said:

“Jurisdiction in such suits (by or against national banks) is unquestionably vested in any circuit, district, or territorial court of the United States held within the district in which sueh association may be established.”

The decisions of circuit judges in other circuits have been to the same effect, and are numerous, but it is not necessary here to cite cases.

*724Some questions has been made as to the right of the plaintiff to sue the defendant Harrison in this district, he being a citizen of the ■western district of this state. That question is settled by section 740 of the Revised Statutes, which provides that “when a state contains more than one district every suit not of a local nature, in the circuit or district courts thereof, * * * if there are two or more defendants residing in different districts of the state, may he brought in either district, and a duplicate writ be issued against the defendants, directed to the marshal of any other district in which the defendant resides.”

The motion to dismiss is overruled.

Treat, D. J., concurring.