Brown v. Tillinghast

GILBERT, Circuit Judge, after stating the facts, delivered the opinion of the court. ■The question presented on the appeal in this case is whether the eir.cúit court erred in sustaining a demurrer to the hill for want of equity. The facts stated in the hill are substantially the same as those which .were involved in the case of Bank v. Mathews, 29 C. C. A. 491, 85 Fed. 934, recently decided by this court. In that case the court said: “When a man subscribes to a proposed increase of stock in a national bank, with knowledge that the stockholders had, by a resolution duly passed, authorized the officers of the association, with the approval' of the comptroller 'of the currency, to increase the capital stock in any multiple of $50,000, up to .'$300,000, as the subscriptions shall be paid in, he is bound by his act of subscription in any amount of the increased stock which may at any time thereafter be voted and'authorized, not exceeding the amount of $300,000. and not Exceeding the amount of money actually paid in, and is estopped from ques‘tiohing the regularity of the proceedings of the bank, its directors, officers, or Shareholders, provided the certificate and consent of the comptroller of the fcurfency to such increase has been obtained. * * * His [the comptroller’s] judgment as to the sufficiency of the facts and regularity of the proceedings, like that of other special tribunals, upon matters coming within his exclusive jurisdiction, is unassailable, except by a direct proceeding for correction or 'amendment.” It; is' attempted to distinguish the present ease from that, on the .ground that in the case at bar the action of the comptroller of the [329] currency in issuing the certificate is directly attacked, whereas in Bank v. Mathews its validity was assailed collaterally. In the Mathews Case the action was brought by a shareholder against the receiver to establish a claim against the bank for the amount paid by the shareholder on Ms subscription for a portion of the increased stock. In the present case a shareholder sues the receiver in equity, and seeks to recover the amount which he has paid on his subscription to the increased capital, and he asks the court to decree that the increase was illegal, and the comptroller’s certificate void. (There is no substantial difference in the causes of action. They are both actions against the receiver, and the object and purpose of both is the same. In neither is the proceeding directly against the comptroller, or for the purpose of correcting or revising his decision. In the view which this court and other courts have taken of the nature of the comptroller’s function in certifying to an increase of capital stock, the present suit is a collateral attack upon a judicial or a quasi judicial decision, — a decision which is conclusive except as against direct attack. Tillinghast v. Bailey, 86 Fed. 16; Rand v. Bank, 87 Fed. 520. But, if this were a direct: attack upon the decision of the comptroller and the validity of Ms certificate, we are still of opinion that no case of equitable cognizance is presented by the bill. The appellant had notice of the meeting of January 12, 1892, and of the terms of the resolution under which his subscription was made. He subscribed to the stock under the conditions which were imposed by that resolution. The resolution expressly provided for an increase of capital by installments of $50,000 each, or whenever a subscription to the amount of $50,000 or a multiple thereof should be paid in and certified to the comptroller. Under such a resolution, it was not necessary that the full amount of the $300,000 increased capital should be subscribed before any portion of such subscription should be certified to the comptroller. At any time after $50,000 was subscribed and paid in, that fact might have been properly made known to the comptroller, and Ms certificate might hav.e been obtained, certifying to that amount of increased capital; and when the sum of $150,000 was subscribed and paid, and the proof thereof was in due form presented to the comptroller, he could lawfully have certified that the capital was increased to that amount. The only effect of the action of the shareholders on September 9,1895, was to limit th.e amount of the total capital of the association to $350,000. We are unable to perceive how any of the proceedings of the directors or of the shareholders so limiting the increase of the capital have affected the substantial rights of the appellant. His rights and his liabilities were fixed by the resolution of January 12,1892, by his subscription to the increased capital, and by the fact that $150,000 of such increased and paid-in capital was certified to the comptroller, and his certificate obtained therefor. It is immaterial, therefore, whether the notice of August 9, 1895, was duly issued or published, or whether the special ■meeting of the shareholders, held in pursuance thereof, was legal or not. The law was complied with, irrespective of that meeting and those proceedings. We find no error in the decree of the circuit court sustaining the demurrer to the bill. The decree will be affirmed.