Opinion of the Court.

263 U.S.

.14

terms limited to cases in which the ship of the original defendant had been arrested or he had given bail. The courts held that the act does not apply where the original libel was in personam; and that in actions in rem, it had, thereunder, no power to order a stay where there had been no arrest and the defendant had given bail voluntarily.15 Rule 53 did not so limit the power to suits in rem. For, while process in the nature of foreign attachment in suits in personam fell into disuse in England, it had become the established practice in this country.16 Neither was Rule 53 in terms limited to suits where the original libelant had made an arrest or attachment. But, although it remained in force, unmodified, for more than half a century, no reported case discloses that a stay was ordered under it, except where the original respondent had been obliged to give security in order to obtain release of the ship or of attached property." Here, as in England, the purpose of the provision was declared to be to place the parties on an

14 The Amazon, 36 L. J. Adm. (N. S.) 4; The Rougemont, (1893) P. 275, 276-279; 1 Halsbury, Laws of England, 95, note (s).

15 The Alne Holme, 4 Asp. 591.

16 Manro v. Almeida, 10 Wheat. 473; Atkins v. Disintegrating Co., 18 Wall. 272; Louisiana Insurance Co. v. Nickerson, 2 Low. 310; Rosasco v. Thompson, 242 Fed. 527. Compare Williams & Bruce, Admiralty Jurisdiction & Practice (3rd ed.), 19; Roscoe, Admiralty Practice (3rd ed.), 44, note (c).

17 In Franklin Sugar-Refining Co. v. Funch, 66 Fed. 342, 343, it was doubted whether Rule 53 applied where the original libel was in personam and no security was exacted. In the following cases in rem, in which the stay was ordered, the original libelant had caused the ship to be arrested. The Toledo, 1 Brown Adm. 445; The George H. Parker, 1 Flippin, 606; Vianello v. The Credit Lyonnais, 15 Fed. 637; Empresa Maritima a Vapor v. North & South American Steam Nav. Co., 16 Fed. 502; The Electron, 48 Fed. 689; The Highland Light, 88 Fed. 296; Old Dominion S. S. Co. v. Kufahl, 100 Fed. 331; Jacobsen v. Lewis Klondike Expedition Co., 112 Fed. 73; The Gloria, 267 Fed. 929; 286 Fed. 188; The F. J. Luckenbach, 267 Fed. 931; 286 Fed. 188. In the following cases in which the stay was ordered the suit

equality as regards security.18 And, under it, security to satisfy the counter claim could not be exacted by means of a stay, unless the original libelant had compelled the giving of such security to satisfy his own claim.

The new phrases introduced in Rule 50 were not designed to introduce any new practice concerning crosslibels. Their purpose was to formulate the practice which had become settled. This is true of those relating to the giving of security, as it is of those concerning the character was in personam, but respondent's property was attached. Compagnie Universelle, etc. v. Belloni, 45 Fed. 587 (see 123 Fed. 332, 333); Lochmore S. S. Co. v. Hagar, 78 Fed. 642. In Genthner v. Wiley, 85 Fed. 797, the original papers disclose that no attachment was made or bond given; and that, after the order, the bill and cross-bill were dismissed by agreement. In the following cases where the original suit was in personam, the stay was denied in the exercise of discretion. Franklin Sugar-Refining Co. v. Funch, 66 Fed. 342; 73 Fed. 844; Morse Ironworks & Dry Dock Co. v. Luckenbach, 123 Fed. 332; Chesbrough v. Boston Elevated Ry. Co., 250 Fed. 922; Interstate Lighterage & Transp. Co. v. Newtown Creek Towing Co., 259 Fed. 318; Prince Line v. Mayer & Lage, 264 Fed. 856. Also in The Transit, 210 Fed. 575. In The Steamer Bristol, 4 Ben. 55, the stay was denied because the cross-action was in rem, the vessel was without the jurisdiction, and process was not served on the cross-respondent. In Crowell v. The Theresa Wolf, 4 Fed. 152, and Southwestern Transp. Co. v. Pittsburg Coal Co., 42 Fed. 920, the stay was denied because the counterclaim was not a proper subject for a cross-libel. See also The Owego, 289 Fed. 263.

18 The Cameo, Lush, 408, 409; The C ch, L. R. 4 A. & E. 120, 122; The Newbattle, 10 P. D. 33, 35. see also The Breadalbane, L. R. 7 P. D. 186, 187 (1881); The Helenslea, L. R. 7 P. D. 57, 59 (1882); The Stoomvaart Maatschappy Nederland v. P. & O. S. N. Co., L. R. 7 A. C. 795, 821 (1882); The Alexander, 5 Asp. 89 (1883); The Rougemont (1893) P. 275; Imperial Japanese Government v. P. & O. S. N. Co., (1895) A. C. 644, 659-60; The James Westoll (1905) P. 47, 51. Williams & Bruce, Admiralty Jurisdiction & Practice (3rd ed), 108, 370.

In Empresa Maritima a Vapor v. North & South American Steam Nav. Co., 16 Fed. 502, 504, Judge Addison Brown said: "The object of rule 53, I cannot doubt, was that in cases of cross-demands upon the

19

of the claims which may be asserted by means of a crosslibel. The answer to the question of the Circuit Court of Appeals is

No.

FIRST NATIONAL BANK IN ST. LOUIS v. STATE OF MISSOURI AT THE INFORMATION OF BARRETT, ATTORNEY GENERAL.

ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.

No. 252. Argued May 7, 1923; restored to docket for reargument May 21, 1923; reargued November 21, 22, 1923-Decided January 28, 1924.

1. National banks are subject to state laws that do not interfere with the purposes of their creation, tend to destroy or impair their efficiency as federal agencies, or conflict with the laws of the United States. P. 656.

2. National banks can exercise only the powers expressly granted by federal statutes and such incidental powers as are necessary to the conduct of the business for which they are established. Id.

same subject of litigation both parties should stand upon equal terms as regards security. It was designed, where the libelants in a suit in rem, through the arrest of the property, exact and obtain security for their own demand, that in a cross-suit in personam for a counterclaim in respect to the same subject of litigation, the defendants in the former suit should likewise be entitled to security for the payment of their demands, in case the decision of the court upon the point in controversy should be in their favor. The rule was designed to correct the inequality and injustice of the process of court in rem being used to obtain security in favor of one party, in reference to a single subject of dispute, while it was denied to the other."

19 Compare Bowker v. United States, 186 U. S. 135, 141; Vianello v. The Credit Lyonnais, 15 Fed. 637; The C. B. Sanford, 22 Fed. 863; The Zouave, 29 Fed: 296; The Electron, 48 Fed. 689; Genthner v. Wiley, 85 Fed. 797; The Highland Light, 88 Fed. 296; George D. Emery Co. v. Tweedie Trading Co., 143 Fed. 144; The Venezuela, 173 Fed. 834; United Transp. & Lighterage Co. v. New York & Baltimore Transp. Line, 180 Fed. 902; 185 Fed. 386; The Alliance, 236 Fed. 361. See also Brooklyn & N. Y. Ferry Co. v. The Morrisania, 35 Fed. 558; The Medusa, 47 Fed. 821.

640

L

Argument for Plaintiff in Error.

3. Under the National Bank Law, power to establish branches is withheld. P. 657. Rev. Stats., §§ 5134, 5190, 5138.

4. The power cannot be sustained as an incidental power, under Rev. Stats., § 5136; for the mere multiplication of places where the powers of a bank may be exercised is not a necessary incident of the banking business; and, moreover, a power which the statute, by fair construction, denies, cannot exist incidentally. P. 659. 5. A state statute prohibiting branch banks is valid in application to a national bank; for it does not frustrate the purpose for which the bank was created, or interfere with the discharge of its duties to the Government, or impair its efficiency as a federal agency. Id.

6. The prohibition may be enforced by the State, by such form of procedure as the State may deem appropriate,-in this case by an information in the nature of quo warranto. P. 660.

297 Mo. 397, affirmed.

ERROR to a judgment of the Supreme Court of Missouri, ousting the plaintiff in error from operating a branch bank, in a proceeding in the nature of quo warranto, instituted by the State at the information of her Attorney General. For the order restoring the case to the docket for reargument, see 262 U. S. 732.

Mr. Frank H. Sullivan and Mr. C. A. Severance, with whom Mr. Frank B. Kellogg, Mr. James C.,Jones, Mr. Lon O. Hocker, Mr. Eugene H. Angert and Mr. Wm. J. Hughes were on the brief, for plaintiff in error.1

I. The State is without power to bring proceedings to question compliance by a national bank with its charter. National banks are instrumentalities of the National Government. McCulloch v. Maryland, 4 Wheat. 316; First National Bank v. California, 262 U. S. 366.

A proceeding of this kind is the prerogative of the sovereign which created the corporation. Ames v. Kansas, 111 U. S. 460; Territory v. Lockwood, 3 Wall. 236; Mc

'The case was argued, at the first hearing, on behalf of plaintiff in error, by Mr. Sullivan. Messrs. Jones, Hocker, Angert and Hughes were also with him on the brief.

74308-24- 41

Argument for the United States.

263 U.S.

its exercise had been abandoned. The writ was a purely civil proceeding. In course of time it was superseded by the speedier remedy of an information in the nature of quo warranto. Territory v. Lockwood, 3 Wall. 236. This. proceeding was criminal in character and led to judgment, not only of ouster, but of a fine for the usurpation. Standard Oil Co. v. Missouri, 224 U. S. 270. In either proceeding, however, the king was the person aggrieved, and it was upon his initiative that the actions were begun.

When our Republic was formed with a dual sovereignty, the Nation and the constituent States, each in their respective spheres, succeeded to this prerogative of the Crown. The question as to what authority may inquire into the exercise of a federal office or franchise is not entirely new in this Court. Wallace v. Anderson, 5 Wheat. 291; Territory v. Lockwood, 3 Wall. 236. And see State v. Curtis, 35 Conn. 374. The reasoning of these opinions seems clearly applicable to the case at bar and conclusive upon the question of the power of the State of Missouri. Indeed, no other authority seems required than McCulloch v. Maryland.

National banks organized under the National Bank Act are instruments designed to be used to aid the Federal Government in the administration of its powers. Davis v. Elmira Savings Bank, 161 U. S. 275; McCulloch v. Maryland, 4 Wheat. 316; Osborn v. Bank of United States, 9 Wheat. 738.

A state court cannot impede or suspend the operation of a federal instrumentality upon the ground that the act of Congress under which the instrumentality is operating is unconstitutional, or does not confer the power sought to be exercised, for it is not within the power of the State to stay the operations of the Federal Government. Ableman v. Booth, 21 How. 506; Tarble's Case, 13 Wall. 397. The judicial. control of the agency is within the exclusive jurisdiction of the Federal Government. Tennessee v. Davis, 100 U. S. 257.