FIRST NATIONAL BANK IN PLANT CITY, FLA. v. Dickinson, Civ. A. No. 1216.

• Decision Date: 06 May 1967
• Docket Number: Civ. A. No. 1216.
• Citation: 274 F. Supp. 449
• Parties: The FIRST NATIONAL BANK IN PLANT CITY, Plant City, FLORIDA, Plaintiff, and William B. Camp, Comptroller of the Currency of the United States, Plaintiff-Intervenor, v. Fred O. DICKINSON, Jr., Comptroller of the State of Florida, Ex Officio Commissioner of Banking, Defendant, and The Hillsboro Bank, First Ruskin Bank, and Peoples Bank of Lakeland, Defendant-Intervenors.
• Court: U.S. District Court — Northern District of Florida

274 F. Supp. 449

The FIRST NATIONAL BANK IN PLANT CITY, Plant City, FLORIDA, Plaintiff, and William B. Camp, Comptroller of the Currency of the United States, Plaintiff-Intervenor, v. Fred O. DICKINSON, Jr., Comptroller of the State of Florida, Ex Officio Commissioner of Banking, Defendant, and The Hillsboro Bank, First Ruskin Bank, and Peoples Bank of Lakeland, Defendant-Intervenors.

Civ. A. No. 1216.

United States District Court N. D. Florida, Tallahassee Division.

May 6, 1967.

Robert S. Edwards, Plant City, Fla., for the First National Bank in Plant City, plaintiff.

Robert Bloom, Chief Counsel, Richard S. Beatty, Associate Chief Counsel, Office of the Comptroller of the Currency, Barefoot Sanders, Asst. Atty. Gen., Harland F. Leathers, Lester A. Jensen, Attys., Dept. of Justice, Washington, D. C., Clinton Ashmore, U. S. Atty., Tallahasse, Fla., for William B. Camp, Comptroller of the Currency of the United States, plaintiff-intervenor.

V. Carroll Webb, Associate Counsel, Office of the Comptroller, Earl Faircloth, Atty. Gen., Tallahassee, Fla., for Fred O. Dickinson, Jr., Comptroller, West Palm Beach, Fla., defendant.

Wm. Reece Smith, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., for the Hillsboro Bank, First Ruskin Bank and Peoples Bank of Lakeland, defendant-intervenors.

Wm. Joe Sears, Jacksonville, Fla., D. Fred McMullen, Tallahassee, Fla., amicus curiæ.

MEMORANDUM DECISION

CARSWELL, Chief Judge.

This action was initiated by the First National Bank in Plant City against the Comptroller of the State of Florida in his additional capacity as Commissioner of Banking. The complaint alleged that the State Comptroller had advised the bank that its armored car messenger service for pickup and delivery of cash and other items was a violation of Section 659.06(1) (a) Florida Statutes, F. S.A. which provides that "the business of a bank" shall be transacted only at its banking house. The bank asked the Court to declare that its messenger service was not in violation of Section 659.06 (1) (a); to enjoin the State Comptroller from "interfering with the lawful operations of Plaintiff"; and for various judgments declaring the relationship of state and federal banking officials and banking laws.

In his answer to the complaint the defendant referred to Section 659.06(1) (a) of the Florida Statutes, F.S.A. and to the provisions of the National Bank Act contained at 12 U.S.C. §§ 36 and 81 in support of his position that the bank's activities were unlawful.

Shortly after the federal court proceedings were initiated the State Comptroller filed suit in a state court alleging violation of 659.06(1) (a).

On October 20, 1966 this Court issued its Orders staying proceedings in the State Court and temporarily restraining the State Comptroller from interfering with the plaintiff herein in its conduct of armored car and receptacle services.

Subsequently, three state banks were given leave to intervene permissively as defendants, Brinks, Inc. and the Independent Bankers Associations of Florida and of the United States were permitted to participate as amici curiæ and the United States Comptroller of the Currency was granted leave to intervene as a plaintiff.

Both plaintiffs have now moved for summary judgment, memoranda of law with respect thereto have been filed and considered and the Court has heard argument on the motions in open court. By order of the Court, the two issues of the State Comptroller's authority to regulate national banks and of whether the messenger and receptacle services in question constitute an incidental power which can be properly exercised by a national bank pursuant to 12 U.S.C. § 24 (seventh), although raised by the motions for summary judgment, have been deferred for whatever further consideration may be appropriate.

The record before the Court indicates that the United States Comptroller of the Currency has published in his Manual for National Banks, Ruling 7490¹ which authorized, with various conditions, the provision by national banks of an armored car messenger service to pick up and deliver monies and other items from and to their customers.

On the basis of the Comptroller's ruling and of various communications from the Comptroller's Office, First National Bank in Plant City, in September of 1966 inaugurated a service whereby an armored car owned by the bank and operated by its employee would pick up cash, checks or other items from customers of the bank for deposit to their accounts at the bank. In addition the messenger would deliver cash to customers upon their request. Furthermore, the bank caused a concrete receptacle to be constructed in a shopping center into which items could be placed for pickup by the bank's messenger.

The Comptroller's ruling requires that an agreement be entered into by the bank and its customer using the messenger service providing that the "messenger is the agent of the customer rather than the bank." The record² shows that the practice prescribed by the bank and normally followed by its customers was for the customer sending money for deposit to fill out and attach to the items given the messenger or placed in the receptacle a "Messenger Transmittal" which included the following language:

First National Bank, Plant City, Fla., as messenger and agent for Principal named on front side hereof, agrees to transmit the currency, coin and checks detailed on the front side hereof to the bank's offices at 302 West Haines Street, Plant City, Fla. for deposit to Principal's account. It is agreed and understood by Principal and the bank that in transmitting said currency, coin and checks, the bank is acting solely as agent for said Principal and that the transmittal of said currency, coin and checks, shall not be deemed to be a deposit until delivered into the hands of the bank's tellers at the said banking house.

Furthermore, most of those sending money for deposit and all customers to whom cash was delivered had signed a "Comprehensive Dual Control Contract" which provided that

As agent for the undersigned depositor, The First National Bank Messenger will transport monies of the depositor to and from the banking house.

When money was delivered to customers it was accompanied by a slip which stated

Your account has been charged for the TOTAL shown hereon representing monies requisitioned for delivery to you by bank's messenger.

The concrete receptacle bore a legend stating in similar terms that monies placed therein would not be deemed deposited until received at the bank's main banking premises.

On these facts, the defendants argued that the messenger and receptable services, as authorized by the federal Comptroller and conducted by the First National Bank, constitute branch banking in violation of 12 U.S.C. § 36(c)³ which generally forbids national banks to branch in those states in which branching is forbidden to State chartered banks. In addition, defendants urged that the services in question involve doing the "general banking business" away from the main premises of the bank in violation of 12 U.S.C. § 81.⁴

While acknowledging that the branching Section of the National Bank Act contains, at 12 U.S.C. § 36(f), a description of the term branch:

The term "branch" as used in this section shall be held to include any branch bank, branch office, branch agency, additional office, or any branch place of business located in any State or Territory of the United States or in the District of Columbia at which deposits are received, or checks paid, or money lent;

defendants deny that this section constitutes an exclusive definition and suggest that state law must be considered, as well, in defining a national bank branch. Further, defendants contend that even if one of the three functions enumerated in 12 U.S.C. § 36(f), that is, receiving deposits, paying checks or making loans must be present, before a particular activity may be properly deemed branching, nevertheless the activities in question here involve both receiving deposits and paying checks away from the banking house.

It is argued that no real agency relationship exists between the customer and the messenger in that the bank owns the armored truck, pays the messenger and insures the monies while they are in transit.

Furthermore, defendants contend, facts in the record indicate that from time to time variations from the general procedures occur, such as the failure to use the transmittal slip. These variations, it is argued, disrupt whatever agency relationship may normally exist.

Finally defendants urge that the principle of "competitive equality" governs the relations between National and State banks and that, as Florida state banks may not operate armored car services national banks should not be permitted to do so.

Plaintiffs, on the other hand, take the position that 12 U.S.C. § 36(f) is plainly a definition of the term branch as it applies to a national bank, and argue that unless one of the three functions there described is present the operation is not a branch.

A deposit relationship is one of contract, plaintiffs argue, and the bank and its customers contract, by means of the various forms which accompany cash and other items passing back and forth, that the deposit does not take place until the funds are received by a teller at the bank's premises and the deposit ends by means of the charge to the customer's account prior to delivery by the messenger.

Plaintiffs further contend that the agency...