ABILENE NATIONAL BANK OF ABILENE et al., Appts., v. JOSEPH N. DOLLEY, as Bank Commissioner of the State of Kansas, and Mark Tulley, as State Treasurer of the State of Kansas.

228 U.S. 1 (33 S.Ct. 409, 57 L.Ed. 707)

ABILENE NATIONAL BANK OF ABILENE et al., Appts., v. JOSEPH N. DOLLEY, as Bank Commissioner of the State of Kansas, and Mark Tulley, as State Treasurer of the State of Kansas.

No. 175.

Decided: March 17, 1913.

Messrs. John Lee Webster, B. P. Waggener, Chester I. Long, J. W. Gleed, and John L. Hunt for appellants.

Mr. John S. Dawson, Attorney General of Kansas, and Messrs. Fred S. Jackson and G. H. Buckman for appellees.

Argument of Counsel from pages 1-3 intentionally omitted

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Mr. Justice Holmes delivered the opinion of the court:

This is a bill to restrain the putting into operation of the Kansas bank depositors' guaranty act, and to have it declared unconstitutional. It seems to have been filed at about the same time as the bill in Assaria State Bank v. Dolley, 219 U. S. 121, 55 L. ed. 123, 31 Sup. Ct. Rep. 189, in which case the law was upheld. The main difference between the two suits is that the other was brought by state banks, and this by national banks. The circuit court of appeals held the bill bad on demurrer (32 L.R.A.(N.S.) 1065, 102 C. C. A. 607, 179 Fed. 461); and it was dismissed. A writ of certiorari was denied by this court. 218 U. S. 673, 54 L. ed. 1205, 31 Sup. Ct. Rep. 223. In view of the decisions in 216 U. S. and in this case below, we shall add comparatively few words.

The ground peculiar to this case is an alleged discrimination against national banks. Allegations in the bill as to the purpose and intent of the statute, of course, are immaterial. They introduce no new facts, and leave the question as it would be without them; namely, whether anything can be discerned in the terms or effect of the act that infringes the plaintiffs' constitutional rights. A good deal of the argument seems to be that the statute will make state banks so attractive to the public that the national banks will suffer. It is replied that experience has not justified the prophecy. But even if it had, there is nothing to hinder the states from permitting a competing business and doing what Kansas has done with intent to make it popular and safe. The national banks are free to come into the scheme. The suggestion that they could not come in and remain national banks is simply a statement of the situation of all competitors. They cannot retain the advantages of their adverse situation and share those of the parties with whom they contend. The statutes of the United States when they do not attempt to prohibit competition with national banks do not forbid competitors to succeed.

The specific discrimination pointed out is that, under the Kansas statutes, the national banks do not share equally with depositors in the assets of an insolvent state bank. The bill alleges that the plaintiffs necessarily have and make deposits with state banks, and that banks necessarily borrow money from other banks and rediscount paper in other banks, and that the obligation of their contracts will be impaired and they will be deprived of the property without due process of law, contrary to article 1, § 10, and the 14th Amendment of the Constitution. The section of the statute specified as having this effect is § 4, which contemplates the primary application of the assets of the bank and the double liability of stockholders to depositors. It is replied that the word 'depositors' obviously was used by mistake for 'creditors,' and that the statute was amended by substituting the latter word in 1911. Chap. 62, § 1. But, further, the language of the bill and the argument show that the complaint refers to future transactions, not to past. There is nothing sufficient to raise a question as to dealings before the law went into effect. Contracts made after the law was in force, of course, are made subject to it, and impose only such obligations and create only such property as the law permits. Denny v. Bennett, 128 U. S. 489, 494, 32 L. ed. 491, 9 Sup. Ct. Rep. 134; Cross Lake Shooting & Fishing Club v. Louisiana, 224 U. S. 632, 638, 639, 56 L. ed. 924, 927, 928, 32 Sup. Ct. Rep. 577.

The greater part of the bill is taken up with objections to the scheme of the statute, in which the plaintiffs have no concern, and that have been disposed of by the former decision of this court upon the Kansas act. There is nothing in it that calls for further remark.

Decree affirmed.

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Laws 1909, c. 61.