« ΠροηγούμενηΣυνέχεια »
association shall be held individually responsible, equally and ratably, not one for another, for all contracts, debts, and en
as security for the indebtedness of the estate of Price upon the note, he to apply any amounts which he might realize from said stock as credits upon the note. In pursu-gagements of such association, to the exance of this agreement Otjen subsequently paid the bank sums received from the Dominion National Bank on account of dividends received until the sale of that stock, when the proceeds of sale were likewise applied by him upon the note.
On February 19, 1896, the bank prepared proof of claim against the estate of Price, and, at that time, believing the stocks transferred to Otjen to afford a reasonable security for the note to the amount of $4,484, indorsed a credit for that sum upon the note, as follows: "Forty-four hundred and eighty-four ($4,484.00) dolls. paid on ac. of within note June 18, '94, being proceeds of sale of 30 shrs. stock Dominion National Bank and 20 shares of stock 1st National Bank of Hillsboro, O." The bank filed its proof of claim for the balance of the indebtedness upon the note; that no consideration was paid for said credit, and the same was not entered on the bank's books; that all dividends arising upon the distribution of the estate of Price were applied upon the note.
The Hillsboro bank continued to do business until July 16, 1896. From the date of transfer at all times the stock appeared on the books of the Hillsboro bank in the name of Otjen, there being nothing on the books to connect the Ohio Valley National Bank with the stock, or to indicate that it had any interest therein; that the defendant bank at no time performed any act of ownership, or exercised or attempted to exercise any of the rights of a stockholder in said bank, or of the Dominion National Bank, unless the acts stated were, in legal intendment, of that character. The Ohio Valley National Bank procured the shares to be transferred to Otjen because it was unwilling to assume the risk of the statutory liability of a stockholder in respect thereto. The circuit court of appeals held the bank liable as a stockholder (69 C. C. A. 609, 137 Fed. 461), and directed judgment accordingly.
tent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares. This section undertakes to hold all shareholders responsible, and questions have arisen under varying circumstances as to what constitutes such shareholder.
In Anderson v. Philadelphia Warehouse Co. 111 U. S. 479, 28 L. ed. 478, 4 Sup. Ct. Rep. 525, it was held that the mere pledgee, who had never acted as a shareholder, would not be liable as such, notwithstanding the stock was transferred on the books of the bank and the certificate issued to an irresponsible person, in that instance a porter in the employment of the company, and this although the transfer had been thus made for the purpose of avoiding liability which might be incurred by the shareholders of the bank, in case of insolvency. In the course of the opinion, Mr. Chief Justice Waite, speaking for the court, recognized that the real owner might be held liable as a shareholder, but in that case the facts showed the warehouse company, sought to be held as a shareholder, was never other than a pledgee, and that notwithstanding the transfer to the irresponsible person, the real ownership of the stock remained in the original holder.
In Pauly v. State Loan & T. Co. 165 U. S. 606, 41 L. ed. 844, 17 Sup. Ct. Rep. 465, the subject was considered at length, and it was held that one who was described in the certificate as a pledgee, and who in good faith held the shares as such, was not a shareholder, subject to the personal liability imposed by § 5151. The previous cases in this court were reviewed, and, in summing up the rules relating to the liability of shareholders in national banks, deducible from previous decisions, among other things it was said: "That the real owner of the shares of the capital stock of a national banking association may, in every case, be treated as a shareholder within the meaning of § 5151." And again: "The object of the statute is not
Messrs. Robert Ramsey and J. J. Muir to be defeated by the mere forms of for plaintiff in error.
transactions between shareholders and their
Messrs. Henry M. Huggins and R. T. creditors. The courts will look at the reHough for defendant in error.
Mr. Justice Day, after making the foregoing statement, delivered the opinion of
Section 5151 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3465) provides that the shareholders of every national banking
lations of parties as they actually are, or as, by reason of their conduct, they must be assumed to be, for the protection of creditors. Congress did not say that those only should be regarded as shareholders, liable for the contracts, debts, and engagements of the banking association, whose names appear on the stock list distinctly as share
holders. A mistake or error in keeping the official list of shareholders would not prevent creditors from holding liable all who were, in fact, the real owners of the stock, and as such had invested money in the shares of the association. As already indicated, those may be treated as shareholders within the meaning of § 5151 who are the real owners of the stock, or who hold themselves out, or allow themselves to be held out, as owners in such way and under such circumstances as, upon principles of fair dealing, will estop them, as against creditors, from claiming that they were not, in fact, owners."
And in Rankin v. Fidelity Ins. Trust & S. D. Co. 189 U. S. 242, 252, 47 L. ed. 792, 796, 23 Sup. Ct. Rep. 553, the doctrine was stated that a defendant who was in fact the owner of shares of stock could not avoid liability by listing them in the name of another, notwithstanding it might do so if it were the mere pledgee of the stock; and further, that the case then under consideration turned upon the actual ownership of the shares, which question was properly left to the jury. And to the same effect are well-considered cases in other courts, Federal and state. It was held that the real owner might be charged, although his name never appeared upon the books of the bank. Davis v. Stevens, 17 Blatchf. 259, Fed. Cas. No. 3,653, opinion by Mr. Chief Justice Waite; Houghton v. Hubbell, 33 C. C. A. 574, 63 U. S. App. 31, 91 Fed. 453; Laing v. Burley, 101 Ill. 591; Lesassier v. Kennedy, 36 La. Ann. 539.
Assuming, then, the established doctrine to be that the mere pledgee of national bank stock cannot be held liable as a shareholder so long as the shares are not registered in his name, although an irresponsible person has been selected as the registered shareholder, we deem it equally settled, both from the terms of the statute attaching the liability and the decisions which have construed the act, that the real owner of the shares may be held responsible, although in fact the shares are not registered in his name. As to such owner the law looks through subterfuges and apparent ownerships and fastens the liability upon the shareholder to whom the shares really belong.
Applying these principles to the case at bar, we think there can be no doubt of the liability of the Ohio Valley National Bank in this case. Conceding that it was exempt so long as the relation which it held to the stock was that of a pledgee, and that Otjen was the registered stockholder, holding for the benefit of the bank as pledgee, and not as owner,-what was the attitude of the
parties after the death of Price, and the credit of the supposed value of the stock upon the note, and its presentation for allowance and acceptance by the representatives of Price's estate? As the foregoing statement shows, the stock was originally delivered to the bank, with a power of public or private sale for the liquidation of the pledge. After the death of Price the bank caused the stock to be registered in the name of Otjen. After proof of the claim the dividends paid out of the Price estate were credited upon the note. If the bank had followed literally the authority of the power of attorney attached to the note and sold the stock at public or private sale, and itself become the purchaser, we take it there could be no question that it would thus have become the real owner of the stock, and, within the principles of the cases heretofore cited, the shareholder, liable under the terms of the statute. We think what was in fact done necessarily had the same effect; the bank applied the value of the stock with the consent of the pledgeor, and thus vested the title in the bank.
It is urged that although the indorsement upon the note in the form in which it was presented to Price's administrator recited credit as of June 18, 1894, being proceeds of a sale of the stock, there never was a sale in fact, and that the bank is not estopped by anything shown in the case from showing the true situation and the actual transaction between the parties.
Conceding, for this purpose, that Price's representative could have insisted upon a strict performance of the power conferred in the authority given to the bank as to the disposition of the collateral, yet, if the representative of Price desired to do so, there was nothing to prevent him from waiving a strict compliance with the terms named, and permitting the bank to acquire title to the stock by crediting its value on the note. This is in fact what was done. Instead of selling the stock, the bank, in executing the authority conferred, indorsed what it deemed the value of the stock, as of the date of the credit, upon the note, and, reduced by the amount of this valuation, presented the note to the administrator of Price, who must have allowed the claim in this form, as it is specifically stated that the subsequent dividends upon the claim were paid to the bank. By this transaction, who became the real owner of the stock? Certainly not Otjen, for it is not contended that he was other than a mere holder of the stock as collateral security to the bank, without any beneficial interest. Price had died, and his representative had allowed the
from landing because afflicted with a dangerous contagious disease. Affirmed.
claim, showing the application of the value chusetts to review an order denying relief of the stock as a credit upon the note. If by habeas corpus to an alien minor child Price's representative could have objected of a naturalized citizen, who is debarred to the form in which the bank liquidated the pledge, he did not do so, but accepted the bank's method of devesting him of title by allowing the claim with the credit upon it. The bank thus become the beneficial owner of the stock, and had the Hillsboro National Bank continued solvent it certainly could not have denied to the Ohio Valley Bank, after this transaction, the rights and privileges of a stockholder.
As we have seen, this court, in construing the banking act, has not limited the liability to the registered stockholders. While the registered stockholders may be held liable to creditors regardless of the true ownership of the stock, and the pledgee of the stock, not appearing otherwise, is not liable, although the registered stockholder may be an irresponsible person of his choice, yet, where the real ownership of the stock is in one, his liability may be established, notwithstanding the registered ownership is in the name of a person, fictitious or otherwise, who holds for him.
We think the Circuit Court of Appeals did not err in holding the bank, in view of the facts shown in the case, as the true owner and responsible shareholder of the stock in question.
CHARLES ZARTARIAN, Appt.,
The facts are stated in the opinion.
Mr. Justice Day delivered the opinion of the court:
This is an appeal from an order of the circuit court of the United States for the district of Massachusetts, denying a petition for a writ of habeas corpus filed by Charles Zartarian in behalf of Mariam Zartarian, his daughter, who, it was alleged, was unlawfully imprisoned, detained, and restrained of her liberty at Boston by the United States Commissioner of Immigration, which imprisonment was alleged to have been in violation of the constitutional rights of the said Mariam Zartarian, without due process of law, and contrary to the provisions of § 2172 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 1334), which section, it is alleged, made said Mariam a citizen of the United States by virtue of the citizenship of her father, the petitioner.
The United States District Attorney and the attorney for the petitioner stipulated the following facts:
"The petitioner, Charles Zartarian, formerly a subject of the Sultan of Turkey, became a naturalized citizen of the United States on September 12, 1896, at the cirGEORGE B. BILLINGS, United States Com-cuit court of Cook county, in the state of missioner of Immigration at the Port of Boston.
Aliens-exclusion-effect of naturalization
Illinois. That his daughter Mariam, on whose behalf this petition is brought, is a girl between fifteen and sixteen years of age, and was born just prior to the petitioner leaving Turkey. That in the latter part of the year 1904 the Turkish government, at the request of the United States minister at Constantinople, granted permission to the petitioner's wife, minor son, and his said daughter, Mariam, to emigrate to the United States, it being stipulated in the passport issued to them that they could never return to Turkey. That on March 22, 1905, the Hon. G. V. L. Meyer, then United States Ambassador at Rome, Italy, issued a United States passport to your petitioner's said wife and daughter. That said Mariam arrived at Boston from Naples, Italy, on April 18, 1905, and that on April 18,
Submitted December 7, 1906. Decided Janu- 1905, she was found to have trachoma, and
ary 7, 1907.
PPEAL from the Circuit Court of the
was debarred from landing by a board of special inquiry appointed by the United States Commissioner of Immigration for the port of Boston."
The petitioner's child, Mariam Zartarian, was debarred from landing at the port of Boston under the provisions of the act of March 3, 1903, chap. 1012, 32 Stat. at L. 1213, U. S. Comp. Stat. Supp. 1903, p. 170, U. S. Comp. Stat. Supp. 1905, p. 274, entitled "An Act to Regulate the Immigration of Aliens into the United States."
Section 2 of that act, among other things, provides that certain classes of aliens shall be excluded from admission to the United States, including "persons afflicted with a loathsome or with a dangerous contagious disease." Upon the finding of the board of inquiry that said Mariam had trachoma, she was debarred from landing.
In Campbell v. Gordon, 6 Cranch, 176, 3 L. ed. 190, it was held that this act conferred citizenship upon the daughter of an alien naturalized under the act of January 29, 1795 [1 Stat. at L. 414, chap. 20], she being in this country at the time of the passage of the act of April 14, 1802, and then "dwelling in the United States."
The act has also been held to be prospective in its operation and to include children of aliens naturalized after its passage, when "dwelling in the United States." Boyd v. Nebraska, 143 U. S. 135, 177, 36 L. ed. 103, 115, 12 Sup. Ct. Rep. 375.
The construction of this law and the meaning of the phrase "dwelling in the The contention is that she does not come United States" has been the subject of within the terms of this statute, not being much consideration in the executive dean alien, but entitled to be considered a partment of the government having to do citizen of the United States, under the pro- with the admission of foreigners and the visions of § 2172 of the Revised Statutes, rights of alleged naturalized citizens of the which provides: "The children of persons United States. The rulings of the State Dewho have been duly naturalized under any partment are collected in Prof. Moore's Dilaw of the United States .. being un-gest of International Law, vol. 3, pp. 467 der the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof."
As Mariam was born abroad, a native of Turkey, she has not become a citizen of the United States, except upon compliance with the terms of the act of Congress, for, wanting native birth, she cannot otherwise become a citizen of the United States. Her right to citizenship, if any she has, is the creation of Congress, exercising the power over this subject conferred by the Constitution. United States v. Wong Kim Ark, 169 U. S. 649, 702, 42 L. ed. 890, 909, 18 Sup. Ct. Rep. 456.
The relevant section, 2172, which it is maintained confers the right of citizenship, is the culmination of a number of acts on the subject passed by Congress from the earliest period of the government. Their history will be found in vol. 3, Moore's International Law Digest, p. 467.
The act of 1872 is practically the same as the act of April 14, 1802 (2 Stat. at L. 153, chap. 28, U. S. Comp. Stat. 1901, p. 1334), which provided:
"The children of persons duly naturalized under any of the laws of the United States
The Department seems to have followed a rule established at an early period, and formulated with fullness in Foreign Relations for 1890, p. 301, in an instruction from Mr. Blaine to Minister Phelps, at Berlin, in which it was laid down that the naturalization of the father operates to confer the municipal right of citizenship upon the minor child if, at the time of the father's naturalization, dwelling within the jurisdic tion of the United States, or if he come within that jurisdiction subsequent to the father's naturalization and during his own minority.
Whether, in the latter case, a child not within the jurisdiction of the United States at the time of the parent's naturalization, but coming therein during minority, acquires citizenship, is not a question now before us.
The limitation to children "dwelling in the United States" was doubtless inserted in recognition of the principle that citizenship cannot be conferred by the United States on the citizens of another country when under such foreign jurisdiction; and is also in deference to the right of independent sovereignties to fix the allegiance of those born within their dominions, having regard to the principle of the common law which permits a sovereignty to claim, with certain exceptions, the citizenship of those born within its territory.
being under the age of twenty-one years at the time of their parents being so naturalized . . . shall, if dwelling in the United States, be considered as citizens of the United States; and the children of persons who are now or have been citizens It is pointed out by Mr. Justice Gray, of the United States shall, though born out delivering the opinion in United States v. of the limits and jurisdiction of the United Wong Kim Ark, 169 U. S. 649, 686, 42 L. ed. States, be considered as citizens of the Unit-890, 904, 18 Sup. Ct. Rep. 456, that the nated States." uralization acts of the United States have
been careful to limit admission to citizenship to those "within the limits and under the jurisdiction of the United States."
The right of aliens to acquire citizenship is purely statutory; and the petitioner's child, having been born and remained abroad, clearly does not come within the terms of the statute. She was debarred from entering the United States by the action of the authorized officials, and, never having legally landed, of course could not have dwelt within the United States. Nishimura Ekiu v. United States, 142 U. S. 651, 35 L. ed. 1146, 12 Sup. Ct. Rep. 336.
CONRAD WECKER, Plff. in Err.,
NATIONAL ENAMELING & STAMPING COMPANY and George Wettengel, Defts. in Err.
Appeal-finality of decision below. court, rendered after the plaintiff, having 1. A judgment of a Federal circuit unsuccessfully moved to remand the cause to the state court whence it was removed, had elected to stand upon his motion to remand, and refused to recognize the jurisdiction of the Federal court, that plaintiff take nothing by the suit, and that the deIt is urged that this seems a harsh appli- their costs against the plaintiff, is final for fendants go hence without day and recover cation of the law; but if the terms of the the purpose of appeal. statute are to be extended to include chil- Removal of causes-separable controversy. dren of a naturalized citizen who have nev- 2. A Federal circuit court to which a er dwelt in the United States, such action case has been removed as presenting a must come from legislation of Congress, separable controversy properly refuses to reand not judicial decision. Congress has mand the cause to the state court, where the testimony shows that the real purpose made provision concerning an alien's wife of the plaintiff in suing jointly in tort a or minor child suffering from contagious dis- resident employee and his nonresident emease, when such alien has made a declara-ployer was to prevent the exercise of the tion of his intention to become a citizen, right of removal by the nonresident deand when such disease was contracted on fendant. * board the ship in which they came, holding Evidence-sufficiency-joinder of resident to them under regulations of the Secretary of prevent removal of cause. the Treasury until it shall be determined whether the disorder will be easily curable, or whether such wife or child can be permitted to land without danger to other persons, requiring that they shall not be deported until such facts are ascertained (32 Stat. at L. 1221, chap. 1012, U. S. Comp. Stat. Supp. 1903, p. 185, U. S. Comp. Stat. Supp. 1905, p. 290). But Congress has not said that an alien child who has never dwelt in the United States, coming to join a naturalized parent, may land when afflicted with a dangerous contagious disease.
3. Uncontradicted testimony that resident employee sued jointly in tort with his nonresident employer was merely a draftsman, whose work was confined making the necessary drawings based on the plans and ideas of others, and that he had which is alleged to have been so defectively nothing to do with planning the apparatus constructed as to have caused the injury complained of, is sufficient to support a conclusion of law that such employee was made a defendant for the sole purpose of preventing the exercise of the right of removal by the nonresident defendant. Appeal-objections and exceptions. 4. The objection that a Federal circuit court, on motion to remand a cause to the state court whence it had been removed, should not have determined, upon affidavits, the question of the good faith of the plainIt is suggested that the agreed finding of ployee and his nonresident employer, is not tiff in suing jointly in tort a resident emfacts contains no stipulation as to the dan-open to the plaintiff in error, who made no gerous or contagious quality of trachoma, objection to the consideration of affidavits but the petition shows that the petitioner's in support of the petition for the removal, daughter was debarred from landing because and himself filed a counter affidavit.† it was found that she had a dangerous contagious disease; to wit, trachoma. Furthermore, the statute makes the finding of the board of inquiry final, so far as review by the courts is concerned, the only appeal being to certain officers of the De
As this subject is entirely within congressional control, the matter must rest there; it is only for the courts to apply the law as they find it.
Submitted December 14, 1906. Decided January, 7, 1907.
N ERROR to the Circuit Court of the
partment. 32 Stat. at L. 1213, chap. 1012, I United States for the Eastern District
U. S. Comp. Stat. Supp. 1905, p. 274;
of Missouri to review a judgment in favor
*Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 79.