The Act of June 25, 1930, c. 604, 46 Stat. 809 (12 USCA § 90), amends section 45 of the National Bank Act of 1864 by adding thereto the following:
'Any association may, upon the deposit with it of public money of a State or any political subdivision thereof, give security for the safe-keeping and prompt payment of the money so deposited, of the same kind as is authorized by the law of the State in which such association is located in the case of other banking institutions in the State.'
The controlling question is whether Illinois has conferred upon banks organized under its laws power to pledge assets as security for deposits of public moneys of political subdivisions of the state.
In 1931, the city of Marion, Ill., was operating under the 'Commission Form of Government.' Smith-Hurd Rev. St. 1931, c. 24, §§ 265-326, 358k, 358l, Cahill's 1931 Rev. Stat. chap. 24, pars. 323-384. That statute required the treasurer of a city to give a bond; and to-
'make his daily deposits of such sums of money as shall be received by him from all sources of revenue whatsoever, to his credit as treasurer of said city * * * in one or more banks * * * to be selected by the president of said council, the commissioner of accounts and finance, and the treasurer of such city * * * or by any two of them, and any such bank, before any such deposit is made therein * * * shall also execute a good (and) sufficient bond with sureties to be approved by the president of the said council, and conditioned that such bank will safely keep and account for, and pay over said money. * * *' Section 316 (paragraph 374).
Carroll having been appointed treasurer of Marion, applied to the Fidelity & Casualty Company of New York to become surety on his official bond. Although Marion has a population of 9,000, it was then without a bank. The Fidelity Company agreed to become surety on Carroll's bond provided he would get elsewhere a bank which would give satisfactory collateral security for the repayment of his deposits of the public moneys. The City National Bank of Herrin agreed to do this. Thereafter, it delivered to the Continental Illinois National Bank & Trust Company of Chicago, as escrow agent, negotiable bonds of the par value of $23,000, under an agreement so to secure the city's deposit; the Fidelity Company executed Carroll's official bond; and he made his initial deposit in the Herrin bank of the city's moneys. That bank was then solvent. On October 31, 1931, it failed and a receiver was appointed. At the time of the failure the city's deposit was $16,430.00.
Ben Sneeden, the receiver, brought, in the federal court for eastern Illinois, this suit against the city, its treasurer, the surety, and the escrow agent. Setting forth the above facts, he prayed that the pledge be declared ultra vires and void; that the bonds be delivered to him as receiver; and that, meanwhile, the defendants be enjoined from disposing of them. The District Court dismissed the bill. 58 F.(2d) 341. Its decree was reversed by the Circuit Court of Appeals, one judge dissenting. 64 F.(2d) 721. This Court granted certiorari, 290 U.S. 617, 54 S.Ct. 91, 78 L.Ed. --.
The petitioners contend that the pledge is valid because the act of 1864, as originally enacted, conferred upon national banks, as a necessary incident of the business of deposit banking, the power to pledge assets to secure deposits; and that the amendment of June 25, 1930, did not limit the power so originally conferred. They contend further that even if the 1930 amendment be construed as denying to a national bank power to make such a pledge unless it is located in a state which grants the power to its state banks, the pledge here challenged is valid, because in Illinois, state banks have the power to pledge assets as security for deposits of public moneys of any political subdivision of the state. The petitioners contend also that even if the pledge was without authority in law, the bill was properly dismissed by the District Court, because the bank could not have required return of the bonds without repaying the deposit and that it would be inequitable to permit the receiver to do so. We think these contentions are unsound.