Lewis v. Fidelity Deposit Co of Maryland

• Decision Date: 04 June 1934
• Docket Number: No. 802,802
• Parties: LEWIS v. FIDELITY & DEPOSIT CO. OF MARYLAND
• Court: U.S. Supreme Court

292 U.S. 559

54 S.Ct. 848

78 L.Ed. 1425

LEWIS

v FIDELITY & DEPOSIT CO. OF MARYLAND.

No. 802.

Argued May 4, 1934.

Decided June 4, 1934.

[Syllabus from pages 559-561 intentionally omitted] Messrs. Wallace Miller, of Macon, Ga., and George P. Barse and J. F. Anderson, both of Washington, D.C., for petitioner.

Mr. M. F. Goldstein, of Atlanta, Ga., for respondent.

Mr. Justice BRANDEIS delivered the o inion of the Court.

Under statutes of Georgia, in force since 1879, a bank, state or national, may be appointed depository of state funds. To qualify it must give a bond for the faithful performance of its duty. A bond with surety creates a lien on all the bank's assets, both those held at the time of the execution of the bond and those subsequently acquired.¹

In July, 1928, the Governor of Georgia appointed the Hancock National Bank of Sparta, Ga., a state depository for the term of four years. It gave a bond with the Fidelity & Deposit Company of Maryland as surety in the sum of $10,000 for the faithful discharge of its duties. From time to time thereafter, until May 23, 1932, the tax collector of Hancock county deposited in the bank moneys collected on account of state taxes. On that day the Comptroller of the Currency declared the bank insolvent and appointed a receiver for whom the petitioner, John C. Lewis, was later substituted. The amount of state funds then on deposit was $6,157.41. This sum, and the accrued interest, the company paid to the state and received an assignment of its rights arising out of the deposit. Then, the company brought in the federal court for the Middle District of Georgia this suit in equity against the receiver to enforce a lien for the amount upon all the assets in his hands, claiming priority according to the date of the bond.

The District Court, after denying a motion to dismiss, heard the cause substantially upon agreed facts. It ruled that the company was entitled to the rights of the state by subrogation and by transfer; held that neither the state nor the company was entitled to a lien or to preferential treatment; and allowed the claim as one entitled merely to a pro rata dividend. The Circuit Court of Appeals for the Fifth Circuit reversed the judgment and remanded the cause for further proceedings, holding that the asserted lien was valid, subsisting in favor of the company, and entitled to the priority claimed. Fidelity & Deposit Co. v. Howard, 67 F.(2d) 961. This court granted certiorari. Lewis v. Fidelity & Deposit Co., 291 U.S. 658, 54 S.Ct. 563, 78 L.Ed. —-.

That court, following Pottorff v. El Paso-Hudspeth Counties Road District, 62 F.(2d) 498, ruled, as matter of federal law, that national banks had under National Bank Act, as enacted in 1864, power to pledge assets to secure public deposits. It ruled as matter of state law that the lien is a contractual one arising, not proprio vigore by reason of the statutes, but by contract of the bank as an incident of giving a personal bond; that these statutes apply to both state and national banks and the scope of the lien is the same in respect to both; declared, in describing its character, that from the date of the bond the lien attaches to all property real and personal then owned or thereafter acquired; that a grantee of real estate having constructive notice would take subject to the lien; that, as to money, bonds, stocks, notes, drafts, and other choses in action, the lien of the state is inferior to the rights of third persons who receive the property bona fide in the ordinary course of business prior to insolvency or sequestration; and that the lien is inferior even to the right of depositors to set off against their own indebtedness that of the bank to them.

The court took judicial notice of the fact that throughout the fifty-three years since the enactment of the law both national and state banks had acted as state depositories; that the lien had been enforced against money and choses in action when captured by a receivership, but had never been asserted as to commercial assets transferred in due course of business; that the existence of the lien had presented no obstacle to the ordinary operations of the banking business or interfered in any way with the performance by national banks of their federal functions; and that a bank's appointment as state depository is customarily advertised and accepted as evi- dence of soundness and credit. Compare In re Blalock (D,.c.) 31 F.(2d) 612.

In Texas & Pacific R. Co. v. L. O. Pottorff, 291 U.S. 245, 54 S.Ct. 416, 78 L.Ed. 777, and City of Marion v. Ben Sneeden, 291 U.S. 262, 54 S.Ct. 421, 78 L.Ed. 787, decided after the entry of the judgment below, we held that a national bank had, prior to the Act of June 25, 1930, no power to make any pledge to secure deposits except the federal deposits specifically provided for by acts of Congress. It follows that, in 1928, no lien arose when the bank was appointed depository; and that the judgment of the Circuit Court of Appeals must be reversed unless the Act of June 25, 1930, c. 604, 46 Stat. 809 (12 USCA § 90), authorizes a national bank to give as security a general lien of the character prescribed by the Georgia statutes.

That act provides:

'Any association may, upon the deposit with it of public money of a State or any political subdivision thereof, give security for the safe-keeping and prompt payment of the money so deposited, of the same kind as is authorized by the law of the State in which such association is located in the case of other banking institutions in the State.'

First. The receiver contends that the act of 1930 should be construed as authorizing merely a pledge of specific assets to secure public deposits; and that the giving of a general lien upon the bank's assets is still ultra vires. The language of the act is broad enough to authorize giving a general lien on present and future assets, wherever banks organized under the laws of the state have such power; and it should be given that construction. For the main purpose of the 1930 act was to equalize the position of national and state banks; and without such power national banks would not in Georgia be upon an equality with state banks in competing for deposits. The policy of equalization was adopted in the National Bank Act of 1864, and has ever since been applied, in the provision concerning taxation.² In amendments to that act and in the Federal Reserve Act and amendments thereto the policy is expressed in provisions conferring power to establish branches;³ in those conferring power to act as fiduciary;⁴ in those concerning interest on deposits;⁵ and in those concerning capitalization.⁶ It appears also to have been of some influence in securing the grant in 1913 of the power to loan on mortgage.⁷ Compare Fidelity & Deposit Co. v. Kokrda (C.C.A.) 66 F.(2d) 641, 642.

Second. The receiver insists that, even if the act of 1930 authorizes the giving of a general lien, the lien here asserted must fail because there are provisions in the Georgia law inconsistent with the National Bank Act and because obligations are imposed upon state depositories with which no national bank may comply.

1. Attention is called specifically to the terms of the statutory bond which is conditioned 'for the faithful performance of all such duties as shall be required' of the depository 'by the General Assembly or the laws of this State.' The argument is that a national bank is an instrumentality of the United States and cannot subject itself by contract to the laws of a state. But a national bank is subject to state law unless that law interferes with the purposes of its creation, or destroys its efficiency, or is in conflict with some paramount federal law. First National Bank v. Commonwealth of Kentucky, 9 Wall. 353, 362, 19 L.Ed. 701; McClellan v. Chipman, 164 U.S. 347, 356, 17 S.Ct. 85, 41 L.Ed. 461; First National Bank in St. Louis v. Missouri, 263 U.S. 640, 656, 44 S.Ct. 213, 68 L.Ed. 486. What obligations to the state the bank assumes may be defined by the law of that state. It is quite possible that the Legislature might attempt to impose, under the conditions of the bond, a duty which the bank would be without authority to undertake; and to that extent the contract would be unenforceable. But it is not shown that the obligations as now defined by the courts of Georgia are contrary to anything in the National Bank Act. Moreover, the state court, which would be the controlling authority on the question, might decide that the failure of part of the consideration to be given would not invalidate the appointment.

2. It is urged that acceptance of the appointment as state depository is incompatible with the functions of a national bank, because, under section 224 of the Georgia Civil Code, it has been held that the Governor may issue a fieri facias against the depository bank for the amount due to the state, whereas, Revised Statutes, § 5242, provides that 'no attachment, injunction or execution, shall be issued against such association or its property before final judg- ment in any suit, action, or proceeding, in any State, county, or municipal court.'⁸ Assuming, without deciding, that there is such conflict, it is not material here. Section 224 of the Code provides merely a method of enforcing the bond which has not been used here, and hence against which there is at present no occasion for complaint.

3. It is contended that the lower court erred in its rulings on the Georgia law; that under the state statutes, properly construed, the lien attaches to all kinds of property from the date of the bond; that it applies to real estate and other tangible property, to money, bonds, stocks, notes, drafts, and other choses in action then owned or thereafter acquired by the bank, and that it is not defeated even by a bona fide sale or other disposition of such property in the ordinary course of business; that, consequently, the general lien would present an insuperable...