Allen v. Carter ( 1888 )

Opinion,

Mr. Justice Paxson.

This case is ruled by Commonwealth ex rel. Torrey, v. Ketner, 92 Pa. 372. It was there held that our statutes of 1860, 1861 and 1878, defining and punishing the offence of embezzlement by cashiers of banks had no application to such of-fences committed by cashiers of national banks. It was contended, however, by the learned counsel for the appellants that there is a material difference between that case and this, and that the rulings in thg former do not apply.

In Torrey’s Case, Torrey had been indicted in the Quarter Sessions of Schuylkill county for embezzlement as cashier of a national bank. The indictment was under our state law. At the time the offence was committed it was punishable under section 5209 of the Revised Statutes of the United States. The case was heard upon habeas corpus pending the prosecution in Schuylkill county, and we held that an indictment would not lie under our state statutes; and as the offence was not indictable at common law, we discharged the relator. In commenting upon the acts of assembly referred to, it was said in the opinion of the court: “We are spared further comments upon these acts for the reason that they have no application to national banks. Neither of them refers to national banks in terms, and we must presume that when the legislature used the words ‘ any bank ’ it referred to banks created under and by virtue of the laws of Pennsylvania. The national banks are the creatures of another sovereignty.”

The case in hand is as follows: Thomas II. Carter, complainant, was the cashier of the First National Bank of Tarn-aqua. At the same time he was engaged in business as a partner in the firm of Carter, Allen & Co. The firm carried on a general foundry, machinery and boiler manufacturing business in Tamaqua. It was dissolved by the sale of Lueien H. Allen’s interest to Charles F. Allen and Charles F. Lloyd. The complainant claimed the right as liquidating partner to the possession of the assets of the firm for the purpose of closing up the business and paying creditors, and filed this bill to enjoin the appellees from intermeddling with him in doing so.

Under ordinary circumstances the right of complainant to the control of the assets would be clear. It was resisted in this case, however, upon the ground that under the act of assembly bank cashiers are prohibited from engaging in business. The 64th section of the Penal Code of 1860 P. L., 399, provides: “ If any cashier of any bank in this commonwealth shall engage, directly or indirectly, in the purchase or sale of stock, or in any other profession, occupation, or calling other than that of his duty as cashier, he shall be guilty of a misdemeanor, and being thereof convicted shall be sentenced to pay a fine not exceeding five hundred dollars.”

The act of congress regulating national banks contains no clause punishing cashiers for engaging in other business, nor does it contain any prohibition of the same.

The distinction between Torrey’s case and the one now before us is this : in the former the offence of embezzlement was punishable under an act of congress; while in the latter there has not been any legislation by congress making it an offence for the cashier of a national bank to engage in business.

It was conceded by the appellees that had congress legislated upon this subject, such legislation would have superseded our state law, so far as national banks are concerned, but that in the absence of such legislation our state law took effect, and made it an offence for the cashier of a national bank to engage in any occupation or business outside of his official duties. We are of opinion that the distinction referred to is a distinction without a difference. Torrey’s case was decided upon the broad ground that our statutes in regard to embezzling cashiers did not apply to cashiers of national banks and was not intended to. The fact that such persons were punishable under the legislation of congress was referred to argumentatively as an additional reason why an indictment would not lie under our state law. We held then and we hold now to the broader position that our statutes have no application.

The national banks, as was observed in Torrey’s case, are the creatures of another sovereignty. The National Banking Act and its supplements, create a complete system for the government of those institutions. Conceding the power of congress to create this system, I am unable to see how it can be regulated or interfered with by state legislation. The act of 1860, if applied to national banks, imposes a disqualification upon cashiers of such institutions where none has been imposed by act of congress. If the state may impose one qualification upon the cashiers, why not another? If, upon the cashier, why not upon the president or other officer? Nay, further, suppose the legislature should declare that no person should be a bank director unless he has arrived at fifty years of age, or should be the owner of one hundred shares of stock, could we apply such an act to national banks ? If so, such institutions would have a precarious existence. They would be liable to be interfered with at every step, and it might not be long before the whole national banking system would have to be thrown aside as so much worthless lumber.

The decree is affirmed, and the appeal dismissed at the costs of the appellants.