and exercised their powers under acts of Congress.
Plaintiffs support their claims of jurisdiction with the cases of Denicke v. Anglo California Nat. Bank of San Francisco et al., D.C. 1939, 26 F.Supp. 240 and Larabee v. Dolley, C.C. 1909, 175 F. 365, see reversal Dolley v. Abilene Nat. Bank, C.C. 1910, 179 F. 461, 32 L.R.A.,N.S., 1065; Assaria State Bank v. Dolley, 1911, 219 U.S. 121 31 S. Ct. 189, 55 L. Ed. 123.
In the former case the complaint charges a fraudulent conspiracy in violation of certain specified sections of the National Bank Act, 12 U.S.C.A. §§ 84, 93, 501a, 503, 595, 375, 375a, 371, and 371c. It does appear that the court held, in the absence of diversity of citizenship, that there was federal jurisdiction in cases involving national banks by virtue of 12 U.S.C. § 94. Reliance was placed in the decision upon Chesbrough v. Woodworth, 244 U.S. 72, 37 S. Ct. 579, 61 L. Ed. 1000, but in that case although there was an absence of diversity of citizenship the action was brought under Sec. 5239 Revised Statutes, 12 U.S.C.A. § 93, providing for the forfeiture of the franchise of a national bank when its directors knowingly violated provisions of the National Bank Act, and for the payment of damages by such directors. It was held there that a federal question was involved because the statute cited was exclusive of any common law remedy. If the district court in the case of Denicke v. Anglo California Nat. Bank, supra, intended to overlook the presence or absence of a federal question, and we are not sure from the facts stated that it did, the holding would be in conflict with a later decision in its circuit court; namely Denicke v. Brigham, 9 Cir., 142 F.2d 221, wherein the court noticed the absence of a federal question and affirmed a dismissal in the lower court, no other ground of jurisdiction having been asserted.
The latter case submitted by the plaintiffs, Larabee v. Dolley, supra, was a consolidation of three suits against the Bank Commissioner of the State of Kansas and others brought in the Circuit Court of the First Division of Kansas in 1909. All of the suits sought to have declared unconstitutional a statute passed by the State of Kansas in the same year known as the 'Bank Guaranty Law' which provided for a fund to be administered by the State for the purpose of securing depositors in banks contributing to the fund in case of insolvency. One of the suits was brought by the Abilene National Bank. On a demurrer to its bill the court held with it that it had jurisdiction to hear its complaint that the Kansas statute was unconstitutional and void as denying equal protection of the law to national banks within the State of Kansas which were debarred from accepting the provisions of the act. Attention is directed to the following language of the court: ' * * * yet, when a right is asserted by a national bank under authority of the law of its creation, the determination of such right involves a federal question, of which this court has jurisdiction, if the amount involved be sufficient to confer jurisdiction on this court * * * .' 175 F.at page 384.
The plaintiffs urge that this is analogous to the case at bar because the 'Internal management of the National Bank is involved' and since the right of the bank to take the action it has proposed must be determined by the laws creating it, and governing its internal management, a federal question is presented. The cited case presents no such question of internal management that we can find. Rather, relief is sought from the impact of certain state legislation upon the national bank, and the analogy is obscure to us.
On the other hand, as argued by the defendant, it is clear that national banks are to sue and be sued in the federal court precisely as in the case of other citizens unless the litigation comes within the purview of statutory exceptions such as thos contained in 28 U.S.C.A. § 41 subd. (16).
In Whittemore v. Amoskeag Bank, supra, it was claimed that a federal question was raised since the stockholders' suit was brought under Secs. 5209 and 5239 R.S., 12 U.S.C.A. §§ 591, 93. The former section prescribes punishment for embezzlement of the funds of a national bank by directors, etc., and the latter provides for a suit by the Comptroller of the Currency for forfeiture of franchise of a national bank for the intentional violation of its directors of any of the provisions of the title of the Revised Statutes relating to banks. The court summarily overruled the contention that a federal question was raised. In dealing with this point in Hermann v. Edwards, supra, the court stated: ' * * * a mere assertion of liability on the part of directors for wrongs for which they might be responsible at common law afforded no basis for jurisdiction.' 238 U.S.at page 112, 35 S. Ct.at page 840, 59 L. Ed. 1224.
Under 12 U.S.C.A. § 51b, supra, it is provided that preferred stock shall have such voting and conversion rights, control of management and the shares shall be subject to retirement in such manner and upon such conditions as may be provided in the articles of association, with the approval of the Comptroller of the Currency. Under 12 U.S.C.A. § 57, supra, conditions are prescribed under which shareholders may increase the capital stock of a national banking association and under the following section (58, supra) the shareholders may increase the capital stock, in accordance with existing laws, to any sum approved by the Comptroller of the Currency, notwithstanding the limit fixed in the articles of association. The plaintiffs urge that the articles of association of the defendant, which they charge are being violated, find their sources of authority in these federal laws and hence their suit involves federal statutes within the scope of 28 U.S.C.A. § 41 subd. (16), supra, and presents a federal question over which this court can take jurisdiction. With this contention we cannot agree. We are constrained to the opinion that the question raised by the plaintiffs turns solely upon the alleged misinterpretation of the articles of association by the defendant, and that neither the construction nor the constitutionality of any federal statute is involved in the complaint. The alleged misinterpretation of the articles of association can only give rise to an action based thereon as if the defendant banking association were any other citizen of New Jersey. We are convinced that we would not have jurisdiction over plaintiff's complaint were any other citizen of New Jersey the defendant.
It is understood that the plaintiffs have applied for similar temporary relief to the New Jersey Court of Chancery, but that court found itself precluded by federal statute from granting it. The importance to them of finding a forum which can, if the merits warrant it, award the relief, is readily understandable and invites sympathy. However, the jurisdiction of the federal district court is limited and the court itself is charged not to permit that jurisdiction to be invoked unless the elements upon which it rests are present.
The motion of plaintiffs for a preliminary injunction must be denied.
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