lated, any of the provisions of this title.”, cuniary liability which the statute imposing Mark the contrast between the general com- the duty did not contemplate. mon-law duty to "diligently and honestly ad- The civil liability of national bank directminister the affairs of the association” and ors, then, in respect to the making and pubthe distinct emphasis embodied in the prom-lishing of the official reports of the condition ise not to “knowingly violate, or willingly of the bank, a duty solely enjoined by the permit to be violated, any of the provisions statute, being governed by the national bank of this title." In other words, as the stat- act, it is self-evident that the rule ute does not relieve the directors from the pressed by the statute is exclusive, becommon-law duty to be honest and diligent, cause of the elementary principles that where the oath exacted responds to such require a statute creates a duty and prescribes ments. But as, on the other hand, the stat- a penalty for nonperformance, the rule preute imposes certain express duties and makes scribed in the statute is the exclusive test a knowing violation of such commands the of liability. Farmers' & M. Nat. Bank v. test of civil liability, the oath in this regard Dearing, 91 U. S. 29, 35, 23 L. ed. 196, 199, also conforms to the requirements of the and cases cited. The error in the decision statute by the promise not to “knowingly below becomes at once apparent when its violate, or willingly permit to be violated, correctness is tested by the rule that the any of the provisions of this title.” statute is applicable and prescribes the ex

And general considerations as to the spirit clusive test of liability. The doctrine, as and intent of the national bank act (Easton we have seen, upon which the court below v. Iowa, 188 U. S. 220, 47 L. ed. 452, 23 Sup. rested its judgment, was that directors of a Ct. Rep. 288; Davis v. Elmira Sav. Bank, 161 national bank who merely negligently parU. S. 275, 40 L. ed. 700, 16 Sup. Ct. Rep. ticipated in or assented to the making and 502) also render necessary the conclusion publishing of an untrue official report of that the measure of responsibility concern- | the condition of the bank were civilly liable ing the violation by directors of express to anyone deceived to his injury by such commands of the national bank act is, in report. Indeed, in one aspect, the ruling bethe nature of things, exclusively governed low went further than this, since it was, in by the specific provisions on the subject con- substance, decided that, despite the exercise tained in that act. Thus, a contrary con- of diligence by the director, if he attested clusion would lead to a varying measure of an untrue report he was civilly liable, beresponsibility in the several states in which cause he did so at his risk, since it was his the question of liability might arise, de- duty to know or to refrain from acting. pending upon the conceptions of the state That this imposed a higher standard of courts of last resort as to the meaning of conduct than was required by the statute is the act of Congress imposing the duty. obvious, but is clearly also established by Hence, it would follow that the same pro- previous decisions of this court, pointing vision of the statute might mean one thing out that where by law a responsibility is in one state and a different thing in another. made to arise from the violation of a statThe confusion which would result is aptly ute knowingly, proof of something more illustrated by a review made by the su

than negligence is required; that is, that preme court of Ohio in the recent case of the violation must in effect be intentional. Mason v. Moore, 73 Ohio St. 275, 4 L.R.A. McDonald v. Williams, 174 U. S. 397, 43 L. (N.S.) 597, 76 N. E. 932, of the conflicting ed. 1022, 19 Sup. Ct. Rep. 743; Potter v. state adjudications as to the proper rule to United States, 155 U. S. 438, 446, 39 L. ed. be applied to fix the liability of bank di- | 214, 217, 15 Sup. Ct. Rep. 144, and cases rectors to third persons in an action of de

cited. See, also, Utley v. Hill, 155 Mo. 232, ceit at common law. The frustration of the 264, et seq. 49 L.R.A. 323, 78 Am. St. Rep. public policy embodied in the national bank 569, 55 S. W. 1091, and cases cited. system by the crippling of the usefulness confined ourselves to the precise question

Of course, in what has been said we have of such institutions, which would result arising for decision, and therefore must not from holding that directors, in performing be understood as expressing an opinion as the duties imposed upon them by the na

to whether and to what extent directors of tional bank act, might be held liable civilly, national banks may be civilly liable by the not by the standard of conduct which the principles of the common law for purely act provides for a violation of its express voluntary statements made to individuals commands, but by another and different one, or the public, embodying false representais apparent. Under such a conception it tions as to the financial condition of the might well be that prudent and responsible bank, by which one who has rightfully repersons would decline to assume the dis- lied upon such representation has been charge of the duties imposed by the statute damaged. And because we have applied in because of the hazard of an uncertain pe- I this case to the duty expressly imposed by

There is a suggestion that the subject: I SERROR Ntob the Supreme Court of the

the statute the standard of conduct estab- bar to a recovery in another action between lished therein we must not be considered the same parties under a petition which sets as expressing an opinion upon the correct up a right to recover for the individual loss ness of the views enunciated by the court suffered, as distinct from the right of the below concerning the standard which should bank. * be applied solely under the principles of the

[Nos. 231, 232, 233.] common law, to fix the civil liabilities of directors in an action of deceit. See Briggs Argued March 8, 11, 1907. Decided May 13, v. Spaulding, 141 U. S. 132, 35 L. ed. 662,

1907. 11 Sup. Ct. Rep. 924.

N ERROR to the Supreme Court of the of this so

State of Nebraska to review judgments Federal that, although the judgments of the affirming judgments of the District Court circuit court and of the circuit court of of Seward County, in that state, in favor appeals, remanding the cause to the state of plaintiffs in actions to charge the dicourt, may not be re-examined (25 Stat. at rectors and officers of a national bank with L. 435, chap. 866, U. S. Comp. Stat. 1901, p. liability for false representations as to the 509), nevertheless it should now be decided bank's financial condition. Dismissed for that the state court was wholly devoid of want of prosecution as to some of the jurisdiction. This claim is predicated upon plaintiffs in error, and reversed as to the the provision of § 5239, Rev. Stat., confer- others, and remanded for further proceedring exclusive jurisdiction on courts of the ings. United States to declare a forfeiture of the See same case below (Neb.) 105 N. W. charter of a national bank as the result of 287. wrongs committed by the directors, and the The facts are stated in the opinion. contention that a declaration of such for- Messrs. Halleck F. Rose, J. W. Deweese, feiture is a prerequisite to an action to en- and Frank E. Bishop for plaintiffs in erforce the civil liability of directors, and that ror. such action could only be brought in the

Messrs. Lionel C. Burr, John J. Thomas, court of the United States after a forfei- Charles L. Burr, Richard S. Norval, and ture has been adjudged. We content our William B. C. Brown for defendant in erselves with saying that we think these con

ror. tentions are without merit. It follows from what has been said that,

Mr. Justice White delivered the opinion of as to Mosher and Outcalt, two of the persons

the court:

These are the actions referred to in the named as plaintiffs in error in the writ and citation, the writ of error is dismissed for opinion just announced in No. 230, Yates want of prosecution; as to the other plain-v. Jones Nat. Bank [206 U. S. 158, 51 L. ed. tiffs in error, the judgment below is reversed 1002, 27 Sup. Ct. Rep. 638], as companion and the case is remanded for further pro-actions with that case and as having been ceedings not inconsistent with this opinion. tried with it. The issues raised below and

the questions of law which here arise for decision are, therefore, the same as in No. 230,

and the reasons given in the opinion in that CHARLES E. YATES et al., Plffs. in Err., case require a reversal of the judgments in

these. UTICA BANK. (No. 231.)

In the Bailey Case (No. 232), however, CHARLES E. YATES et al., Plffs. in Err., others, which, if determined in favor of the

there is a question not presented in the THOMAS BAILEY. (No. 232.)

plaintiffs in error in that case, will finally

settle that particular controversy. ReferCHARLES E. YATES et al., Plffs. in Err., ring, therefore, to the opinion in the Jones

Nat. Bank Case for the general grounds BANK OF STAPLEHURST. (No. 233.)

of reversal in the three cases, we come to

consider the particular ground which is adJudgments—res judicata.

ditionally relied upon in the Bailey Case A judgment sustaining a demurrer to as establishing that the decree of reversal the petition in an action by a creditor of a in that case should be made conclusive of national bank against the directors, because the entire controversy. the court was of the opinion that the peti

By a "second defense,” the defendants tion only stated a right to recover for vio- pleaded as res judicata a judgment asserted

of damage to the bank as such, the right to to have been rendered in their favor in an recover for which was an asset of the bank, action brought by the same plaintiff in enforceable only by its receiver, is not a Lancaster county, Nebraska, which was re


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*Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, $$ 1089-1094.

moved into the circuit court of the United sustained on the ground that no cause of States, where, upon the sustaining of a action in favor of the plaintiff was stated demurrer to the petition, a judgment of dis- in the petition, because the circuit court of missal was entered which was, by the cir- appeals was of the opinion that the petition cuit court of appeals, affirmed. 11 C. C. A. only stated a right to recover for violations 304, 27 U. S. App. 339, 63 Fed. 488.

of the national bank act, causing damage Despite the introduction in evidence of to the bank as such, the right to recover the judgment roll in the case just referred for which was an asset of the bank, ento, which, for convenience, we term the forceable only by its receiver. In so decidLancaster county action, the jury in this ing the court expressly held that the avercase, over the objection and exception of the ments in the petition relative to the fraud defendants, were in effect instructed that and deceit claimed to have been practised the judgment in the former action did not upon the plaintiff through reports to the operate as a bar to a recovery in the present Comptroller of the Currency were mere matcase. Each defendant, in a motion for a ter of inducement or surplusage, and did new trial, alleged the commission of error not constitute averments of a substantive by the court in “failing to give full faith cause of action. In other words, the preand credit” to the judgment of the circuit vious case was decided exclusively upon the court of appeals in the Lancaster county ground that, as the plaintiff had not set action. The supreme court of Nebraska con- up any individual wrong suffered by him, sidered the subject, and as its conclusion but solely an injury sustained in common was that the judgment of the circuit court with all other creditors of the bank, the of appeals was not res judicata of the issues resulting damage was only recoverable by in this cause, it therefore decided that, in the receiver. As, adopting the construction refusing to give effect of res judicata to given in the Jones Nat. Bank Case to a pesuch judgment, the trial court had not tition like unto the one in this case, we wrongfully denied the validity of an author hold that the petition in this case sets up ity exercised under the United States. The a right to recover for the individual loss correctness of this conclusion is the par- suffered as distinct from the right of the ticular question to be considered which, as bank, it follows, if we accept the construcwe have said, distinguishes this case from tion given by the circuit court of appeals to the others.

the pleadings in the case wherein the judgWhilst the court below found that the ment relied upon was rendered, that case Lancaster county action was between the and this involve different causes of action. same parties, and, in its opinion, was based But it is insisted that if a correct analysis substantially upon the same facts, as in the be made of the facts set out in the previous present action, it based its ruling denying case the result will be to demonstrate that the effect of res judicata to the prior judg. that case and this are identical, and, therement upon the conclusion that, taking in- fore, the judgment in the previous case is to view both the pleadings and the opinion controlling here. This, however, is but to in the previous action, it must be considered assert that the previous judgment was as certain that the case involved a different wrong, and, therefore, in determining its cause of action from the one presented here. effect as res judicata we must treat it as In so concluding we think the court was embracing matters which it did not include. right.

To give full force and effect to the judgment The judgment relied upon was rendered we must necessarily exclude those things upon a demurrer. This fact, however, does which the judgment excluded. To hold to not affect the cogency of the judgment if the contrary would be to decide that the otherwise efficacious to bring into play the former judgment must be accepted as corpresumption of the thing adjudged. North- rect, and yet it must be extended to conern P. R. Co. v. Slaght, 205 U. S. 122, 133, troversies which are beyond its reach, be51 L. ed. 738, 27 Sup. Ct. Rep. 442, and au- cause the judgment was wrongfully renthorities there cited. To determine whether dered. the judgment in the former case was con- The same judgment must therefore be orclusive in this, in view of its uncertainty, dered in each of these cases as was directed we must address ourselves to the plead to be entered in the Jones Nat. Bank Case, ings in that case and consider the opinion viz., as to Mosher and Outcalt, two of the of the court for the purpose of ascertaining persons named as plaintiffs in the writ of precisely what was concluded by the judg- error and citation, the writ of error in each ment upon the demurrer. National Foundry action is dismissed for want of prosecution; & Pipe Works v. Oconto Water Supply Co. as to the other plaintiffs in error, the judg183 U. S. 216, 234, 46 L. ed. 157, 169, 22 ment below in each action is reversed and Sup. Ct. Rep. 111, and cases cited. Coming the case is remanded for further proceed. to do so, we find that the demurrer was ings not inconsistent with this opinion.

CINCINNATI, HAMILTON, & DAYTON | applying this classification to the varying RAILWAY COMPANY et al., Appts., rates is to leave soap in less than car-load V.

lots in the fourth class to a considerable INTERSTATE COMMERCE COMMISSION. extent in one of the subdivisions of such

classification territory, and in a higher class Interstate Commerce Commission-powers.

in the other subdivision. 1. The Interstate Commerce Commission, Interstate Commerce Commission-powers. in making an investigation of a complaint 6. The Interstate Commerce Commisfiled by soap manufacturers as to the freight sion is acting within its powers under the rate for common soap promulgated in a act to regulate commerce in ordering carclassification adopted to govern in official riers to desist from further enforcing a classification territory, had the power, in the classification by percentage of common soap public interest, unembarrassed by any sup- in less than car-load lots, operating throughposed admissions contained in the complaint, out official classification territory, which it to consider the whole subject, and the op- finds has brought about a general disturberation of the classification in the entire ance in relations previously existing in that territory, and also how far its going into territory, and has created discriminations effect would be just and reasonable, would and preferences among manufacturers and create preferences, or would engender dis- shippers of the commodity, and between crimination.

localities in such territory. Interstate Commerce Commission-judicial enforcement of order.

[No. 201.] 2. Any supposed admissions in a complaint filed by soap manufacturers with the Argued January 31, February 1, 1907. DeInterstate Commerce Commission as to the

cided May 13, 1907. freight rate for common soap promulgated in a classification adopted to govern in of; APPEAL from the Circuit Court of the

United States for the Southern District to deprive a Federal circuit court, in a of Ohio to review a decree enforcing an proceeding to enforce an order of the Com- order of the Interstate Commerce Commismission directing the carriers to desist from sion directing carriers to cease and desist enforcing this classification as to soap in from further charging the freight rate for less than car-load lots, of the power to test the validity of such order by the scope

common soap in less than car-load lots proof the act to regulate commerce.

mulgated in a classification adopted to govCarriers-rates-classification.

ern in official classification territory. Af3. The disturbance in the relations be-firmed. tween freight rates for soap in car-load and See same case below, 146 Fed. 559. less than car-load lots created by advan- The facts are stated in the opinion. cing the former from class 6 to class 5, and Messrs. Edward Colston and Lawrence the latter from class 4 to class 3 in a new Maxwell, Jr., for appellants. classification adopted to govern in official

Messrs. L. A. Shaver and P. J. Farrell for classification territory, was not cured by appellee. classifying soap in less than car-load lots at 20 per cent less than third class, but not less than fourth class, where the result of

Mr. Justice White delivered the opinion applying this modified percentage classifi- of the court: cation to the varying rates is to leave soap

Official classification territory embraces in less than car-load lots in the fourth that portion of the United States lying beclass in portions of the territory and in a tween Canada on the north, the Atlantic higher class in other portions.

ocean on the east, the Potomac and Ohio Appeal-review of facts.

rivers on the south, and the Mississippi 4. Findings of the Interstate Commerce river on the west. This territory includes Commission that a classification of freight what is known as Central Freight Associarates adopted to govern in official classification territory produces preferences and dis- tion territory and Trunk Line territory, both criminations will not be interfered with on being governed by the official classification. appeal when concurred in by a Federal cir- The Central Freight Association territory cuit court unless the record establishes that comprises the area west of Pittsburg and clear and unmistakable error has been com- Buffalo, including the lower peninsula of mitted.

Michigan and east of a line from Chicago Carriers-rates-classification preferences. to St. Louis, the Mississippi river from St.

5. Unlawful preferences and discrimina Louis to Cairo, and north of the Ohio river. tions are created by fixing the freight rate Trunk Line territory lies north of the Potofor common soap in less than car-load lots mac river and east of Pittsburg and Bufin a new classification adopted to govern falo. Whilst official classification governed in official classification territory at 20 per cent less than third class, but not less than throughout the whole of official classificafourth class, at which that commodity had tion territory, the rates throughout the previously been rated, where the result of whole of the official classification territory were not uniform, because of a difference , operation of the railroads; and that, “by of rates prevailing in the subdivision; that such course defendants have subjected and is, in the Central Freight and Trunk Line do thereby subject the said traffic in the territory. Thus, although on shipments articles changed, including common soap in from points in the Central Freight Associa- car loads and less than car-load lots, to an tion territory to points in the Trunk Line undue and unreasonable prejudice and disterritory or vice versa rates were the same advantage with respect to the traffic in all for similar distances, yet, on shipments be- of the articles whose classification was not tween termini wholly within one or the changed in official classification No. 20.” It other of these territories, the rates varied was further alleged as follows: because of the different rules governing If there are any qualities and conditions rates which prevailed as to traffic exclusive. which, though not considered by defendants ly moving in that particular territory. at the time of the adoption of said classifi

The first classification adopted by the cation No. 20, justify, nevertheless, the railroads to control in the territory above making of any or part of said changes, the described as official classification territory same, at any rate, do not apply to comwas made contemporaneously with the go- mon soap in car loads or less than car-load ing into effect of the act to regulate com- lots. The same should, at least, have remerce, presumably to comply with that act, mained in sixth class in car-load lots, as orand took effect on April 1, 1887. From that dered by this Commission as aforesaid, and date until January 1, 1900, nineteen gen- in fourth class in less than car-load lots, eral classifications of freight, numbered so as to maintain the proper relation and from 1 to 19, were, at various times, adopt- difference of rates between car-load and less ed to govern in official classification terri. than car-load lots. The changing of partory. The articles embraced in these classi- ticular articles as aforesaid from lower to fications were divided into classes, numbered higher classes for the sole purpose of infrom 1 to 6, the rate increasing as the num- creasing the revenues of the railroads inber of the class decreased. From the be- terested therein is not a condition or cirginning, until June 1, 1891, common soap cumstance justifying the said change of in boxes in car loads was rated as fifth classification in common soap." class, and fourth class for less than car It was prayed that an order might be enloads. On the last-named date, in conse- tered requiring the Cincinnati, Hamilton, quence of an order entered by the Commis- & Dayton Railroad Company and seven sion on a complaint as to the classification other named railroad companies, forming of common soap in car loads, made by various connecting and joint lines of railProcter & Gamble, soap manufacturers, of road in the territory governed by official Cincinnati, Ohio, soap in car loads was ren classification No. 20, to "cease and desist duced to sixth class. This classification con- from refusing to carry common soap in tinued to govern until January 1, 1900, car-load lots at sixth-class rates, and from when a new classification, known as official refusing to carry common soap in less than classification No. 20, went into effect, by car-load lots at fourth-class rates.” After virtue of which soap in car loads was ad- the filing of the petition, and before answer, vanced from sixth to fifth class, and soap official classification No. 20 was, in part, in less than car loads was advanced from changed by making a new class, intermedifourth to third class.

ate classes three and four for soap in less After the going into effect of classification than car-load lots and on some other arNo. 20. the Procter & Gamble Company, ticles, this class being determined by givsuccessor to the firm of Procter & Gamble, ing the articles in question the benefit of a complained to the Interstate Commerce reduction on the third-class rate of 20 per, Commission in respect to the alterations cent, provided the application of the 20 per made in the classification of common soap. cent reduction did not reduce the charge The petition recited the prior complaint by below the fourth-class rate, in which event the firm of Procter & Gamble, and the mak- the 20 per cent reduction should not be ing, in 1890, of the order which led to the fully applied, but would only be applied to reduction from fifth to sixth class, hereto. the extent necessary to make the rate not fore referred to.

less than fourth class. The classification It was charged in the petition that, in thus operating is spoken of as 20 per cent official classification No. 20, there had been less than third class, but not less than an inequitable selection of particular ar- fourth class, and we shall speak of it hereticles and an increase in the rates upon after in this way. such articles alone by the device of chan- In the answers filed the defendants in ging them from a lower to a higher class, substance denied that common soap was for the sole purpose of increasing revenues improperly classified in official classification to cover an alleged increase of cost of No. 20, originally or as modified, or that

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