State of South Dakota v. National Bank of SD, Sioux Falls, No. 17460.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtVAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit
Citation335 F.2d 444
PartiesSTATE OF SOUTH DAKOTA, Appellant, v. The NATIONAL BANK OF SOUTH DAKOTA, SIOUX FALLS, and First Bank Stock Corporation, Appellees.
Decision Date10 August 1964
Docket NumberNo. 17460.

335 F.2d 444 (1964)

STATE OF SOUTH DAKOTA, Appellant,
v.
The NATIONAL BANK OF SOUTH DAKOTA, SIOUX FALLS, and First Bank Stock Corporation, Appellees.

No. 17460.

United States Court of Appeals Eighth Circuit.

August 10, 1964.


335 F.2d 445

Fred Hendrickson, Sp. Asst. Atty. Gen., Pierre, S. D., made argument for appellant and filed brief with Frank L. Farrar, Atty. Gen., and Gary R. Richards, Asst. Atty. Gen., Pierre, So. D.

Horace R. Hansen, of Hansen & Hazen, St. Paul, Minn., made argument for amicus curiae Independent Bankers Ass'n and filed brief.

M. T. Woods, of Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., and Curtis L. Roy, of Dorsey, Owen, Marquart, Windhorst & West, Minneapolis, Minn., made argument for appellees and filed brief with Robert O. Flotten and Robert A. Jensen, of Dorsey, Owen, Marquart, Windhorst & West, Minneapolis, Minn.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Plaintiff State of South Dakota appeals from order sustaining defendants' motion for summary judgment and the resulting final judgment dismissing its complaint. Judge Mickelson's well-considered opinion setting out the facts, the issues, the applicable statutes and the basis for his decision is reported at 219 F.Supp. 842.

Plaintiff's complaint seeks a declaratory judgment and injunction against the defendants National Bank of South Dakota,

335 F.2d 446
a national bank located at Sioux Falls, South Dakota (hereinafter called National Bank) and First Bank Stock Corporation, a bank holding company owning over 90% of the stock of National Bank

All parties moved for summary judgment. There is no dispute as to material facts. This action arises out of an "Agreement of Merger and a Plan of Reorganization" dated October 9, 1962, entered into by and between First Bank Stock Corporation, its subsidiary National Bank, and three state chartered banks known as Farmers and Merchants Bank, of Wessington Springs, Platte and Presho, South Dakota, controlled by N. J. Thomson, hereinafter jointly called Thomson Banks. Under such agreement, all acceptable assets, being substantially all of the assets, of Thomson Banks were to be transferred to National Bank. Liabilities of the Thomson Banks were to be assumed by National Bank; the stock of Thomson Banks was to be surrendered for cancellation; National Bank was to increase its capital stock by $500,000, issuing 5000 shares of $100 par value stock to First Bank Stock Corporation, and First Bank Stock Corporation was to pay Thomson Banks stockholders with stock in its own corporation in accordance with an agreed ratio. The agreement provided that the capital surplus and undivided profits of the merged bank would be equal to that of the merging banks. Such agreement was unanimously approved by the stockholders of each affected corporation.

The Comptroller of the Currency pursuant to federal law on December 6, 1962, approved the merger and certified that the merger of the Thomson Banks into National Bank had been accomplished in accordance with federal statutes. On the same date, the Comptroller approved National Bank's application for establishing branches at Platte, Presho and Wessington Springs, South Dakota, and also at Corsica, South Dakota, where the Platte bank had previously maintained a branch. The merging Thomson Banks were the only banks located in such towns.

Plaintiff bases jurisdiction upon 28 U.S.C.A. § 1331(a), asserting a federal question is presented and that the jurisdictional amount is involved. No diversity of citizenship exists and no claim of jurisdiction based upon diversity of citizenship is made.

Count I attacks the merger as being in violation of 12 U.S.C.A. § 36(c) regulating establishment of branches by national banks.

Count II is based upon an alleged violation of the Federal Bank Holding Company Act, 12 U.S.C.A. §§ 1841-1848.

Independent Bankers Association has by leave of court filed brief amicus curiae in support of plaintiff's position and has participated in oral argument.

Plaintiff's standing to maintain each count of the complaint is challenged. The trial court discussed the jurisdiction issue at pages 846-848 of 219 F.Supp. and determined that plaintiff lacked standing to maintain either count of the complaint. The court then proceeded to consider plaintiff's complaint upon the merits and found against the plaintiff.

With respect to Count I, the question of standing has become moot. See United States v. Alaska Steamship Co., 253 U.S. 113, 115-116, 40 S.Ct. 448, 64 L.Ed. 722.

12 U.S.C.A. § 36(c), so far as here material, authorizes national banks to establish branches in states where statutes specifically grant state banks power to operate branches subject to all restrictions on location imposed upon state banks by state law.

South Dakota law authorizes state banks to establish branches subject to certain limitations not here applicable. Plaintiff's standing to challenge the Comptroller's authorization of the branches here involved, if it exists at all, must arise out of Rule 17 adopted by the State Bank Board in 1945. Such rule, to the extent here material, prohibits establishment of a branch bank more than 50

335 F.2d 447
miles from its home office. It is agreed the branch banks here involved are located more than 50 miles from the home office of...

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15 practice notes
  • Marshall & Ilsley Corp. v. Heimann, No. 80-2251
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 19, 1981
    ...See Leuthold v. Camp, 273 F.Supp. 695, 702 (D.Mont.1967), aff'd, 405 F.2d 499 (9th Cir. 1969); South Dakota v. Nat'l Bank of South Dakota, 335 F.2d 444, 448-49 (8th Cir. 1964), cert. denied, 379 U.S. 970, 85 S.Ct. 667, 13 L.Ed.2d 562 (1965) ("The words in the statute 'other than a bank......
  • State of N. D. v. Merchants Nat. Bank and Trust Co., Fargo, N. D., No. 79-1342
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 6, 1980
    ...aff'd per curiam, 397 F.2d 248 (9th Cir. 1968); South Dakota v. National Bank of S. D., 219 F.Supp. 842, 844-45 (D.S.D.1963), aff'd, 335 F.2d 444 (8th Cir. 1964), cert. denied, 379 U.S. 970, 85 S.Ct. 667, 13 L.Ed.2d 562 (1965). 20 Several recent cases have held that the NBA provision requir......
  • General Electric Credit Corp. v. James Talcott, Inc., No. 64 Civ. 3680.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 23, 1966
    ...U.S. 640, 44 S.Ct. 213, 68 L.Ed. 486 (1924); State of South Dakota v. Nat'l Bank of South Dakota, 219 F.Supp. 842 (D.S.D. 1963), aff'd, 335 F.2d 444 (8th Cir. 1964), cert. denied, 379 U.S. 970, 85 S.Ct. 667, 13 L.Ed.2d 562 (1965). However, any argument that national banks are "establis......
  • Perdue v. Crocker National Bank, S.F. 24591
    • United States
    • United States State Supreme Court (California)
    • July 18, 1985
    ...Nat'l Bank (D.D.C.1968) 282 F.Supp. 781, 783; South Dakota v. Nat'l Bank (D.S.D.1963) 219 F.Supp. 842, 844-845, affirmed (8th Cir.1964) 335 F.2d 444, certiorari denied (1965) 379 U.S. 970, 85 S.Ct. 667, 13 L.Ed.2d 562. The test has sometimes been phrased more loosely; see, e.g., Anderson Na......
  • Request a trial to view additional results
15 cases
  • Marshall & Ilsley Corp. v. Heimann, No. 80-2251
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 19, 1981
    ...See Leuthold v. Camp, 273 F.Supp. 695, 702 (D.Mont.1967), aff'd, 405 F.2d 499 (9th Cir. 1969); South Dakota v. Nat'l Bank of South Dakota, 335 F.2d 444, 448-49 (8th Cir. 1964), cert. denied, 379 U.S. 970, 85 S.Ct. 667, 13 L.Ed.2d 562 (1965) ("The words in the statute 'other than a bank......
  • State of N. D. v. Merchants Nat. Bank and Trust Co., Fargo, N. D., No. 79-1342
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 6, 1980
    ...aff'd per curiam, 397 F.2d 248 (9th Cir. 1968); South Dakota v. National Bank of S. D., 219 F.Supp. 842, 844-45 (D.S.D.1963), aff'd, 335 F.2d 444 (8th Cir. 1964), cert. denied, 379 U.S. 970, 85 S.Ct. 667, 13 L.Ed.2d 562 (1965). 20 Several recent cases have held that the NBA provision requir......
  • General Electric Credit Corp. v. James Talcott, Inc., No. 64 Civ. 3680.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 23, 1966
    ...U.S. 640, 44 S.Ct. 213, 68 L.Ed. 486 (1924); State of South Dakota v. Nat'l Bank of South Dakota, 219 F.Supp. 842 (D.S.D. 1963), aff'd, 335 F.2d 444 (8th Cir. 1964), cert. denied, 379 U.S. 970, 85 S.Ct. 667, 13 L.Ed.2d 562 (1965). However, any argument that national banks are "establis......
  • Perdue v. Crocker National Bank, S.F. 24591
    • United States
    • United States State Supreme Court (California)
    • July 18, 1985
    ...Nat'l Bank (D.D.C.1968) 282 F.Supp. 781, 783; South Dakota v. Nat'l Bank (D.S.D.1963) 219 F.Supp. 842, 844-845, affirmed (8th Cir.1964) 335 F.2d 444, certiorari denied (1965) 379 U.S. 970, 85 S.Ct. 667, 13 L.Ed.2d 562. The test has sometimes been phrased more loosely; see, e.g., Anderson Na......
  • Request a trial to view additional results

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