The opinion
STEPHENS, Associate Justice
(dissenting).
This is an action commenced in the District Court of the United States for the District of Columbia by the appellant Moran, as receiver of the Prudential Bank, against the appellee, Cobb, as a stockholder, to recover a sum alleged to be owing and unpaid upon a statutory stockholder’s liability. The appeal questions the correctness of a judgment entered in favor of the appellee upon the ground that the statute of limitations had run against the action. The record in the case was prepared under Rule 76 1 of the Rules of Civil Procedure for the District Courts of the United States, and pursuant to that rule contains an agreed statement of facts. The record contains also findings of fact and conclusions of law made by the trial court and the judgment entered.
The agreed statement shows the following facts: The Prudential Bank, hereafter referred to as the Prudential, was incorporated in Arizona on November 4, 1920, to conduct a general commercial savings bank business in the District of Columbia and elsewhere. It established a banking house in the District during July, 1923, and there conducted a general banking business until September 26, 1932. On that date it was experiencing financial difficulties, and it entered into a liquidating agreement with the industrial Savings *26 Bank of Washington, D. C, hereafter referred to as Industrial. That agreement had the following effect: The Industrial assumed all of the liabilities of the Prudential (except those to stockholders on account of capital stock, surplus and profits). The Prudential executed in favor of the Industrial a corporate note payable six months after date in the sum of $270,-731.23 — this figure representing the total of its liabilities. As security for this note the Prudential assigned to the Industrial all of its assets — of a book value of $376,161.-15. The directors of the Prudential executed a personal bond in favor of the Industrial in the' principal sum of $50,000 as additional security for the note. The Industrial obliged itself to administer the assets of the Prudential, to collect and liquidate the same, and after it should have been reimbursed for all liabilities assumed, plus interest and expenses, to turn over any remaining assets to a liquidating agent of the Prudential for the benefit of the stockholders of the latter. The liability of the stockholders of the Prudential for its debts and obligations, including liability for the payment of the note referred to, was preserved.
After the execution of this agreement, the Prudential received no deposits, paid no depositors, made no loans, exercised none of the usual banking functions, paid no franchise taxes to the state of Arizona, held but one directors and stockholders meeting, and had no house for the conduct of a banking business in the District. The premises which it had occupied in the District were sold in June, 1933. The books and records of the Prudential were all transferred to the Industrial.
The Industrial proceeded with liquidation of the assets of the Prudential until March 6, 1933. On that date the Industrial closed pursuant to the proclamation of the President, 48 Stat. 1689 , declaring a bank holiday; it did not reopen. Later a conservator, and thereafter a receiver, were appointed by the Comptroller of the Currency for the Industrial and these officers continued liquidation of the Prudential pursuant to the agreement. The Prudential did not apply for a license, and was not licensed, to reopen after the President’s proclamation. 2 On March 17, 1936, the Comptroller determined the Prudential to be insolvent and appointed the appellant Moran as its receiver. The appellant as receiver acquired no assets of the Prudential, all of the same having been transferred to the Industrial under the liquidating agreement. The appellant as receiver advertised for creditors of the Prudential to present their claims and depositors presented claims aggregating approximately $4300, and the receiver of the Industrial presented claims approximating $100,000. On the date of the determination of insolvency, March 17, 1936, the appellee owned and held sixty shares of the capital stock of the Prudential. On April 30, 1936, the Comptroller made an assessment and requisition upon the stockholders of the Prudential, including the -appellee, for $100,000 to be paid by an assessment of 100% of the par value ($20) of the shares. The appellant thereafter made demand upon the appellee for payment of the amount — $1200— equal to the par value of his shares, but this demand was refused.
The agreed statement on appeal further contained the following:
“At the time of the incorporation of said bank and thereafter the Constitution of the State of Arizona in Article XIV, Section 11 thereof provided:
“ ‘The shareholders or stockholders of every banking or insurance corporation or association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such corporation or association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares or stock.’
“The Arizona Constitution is silent as to a time limitation on the exercise of the right to demand and collect the constitutional stockholders’ liability -and the matter was left to general law and to such action as the legislature of such state might take with reference thereto. In the revision of the Arizona laws in 1928, effective July 1, 1929, a statute of limitations was enacted, being incorporated in Revised Statutes of Arizona, 1928, Chapter VIII, Paragraph 227, as follows:
“‘227. STOCKHOLDERS’ LIABILITY. The stockholders of every bank shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts and engagements, of such corporation or association, to the ex *27 tent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares or stock. In case of the dissolution or liquidation of any bank, the constitutional and statutory liability of the stockholders must he enforced for the benefit of the creditors of such bank by the superintendent of banks or by any receiver. The action to enforce such liability shall be commenced within three years after the closing of such bank, and may be commenced immediately upon the closing of the bank if in the judgment of the superintendent or receiver the assets of such bank are insufficient to meet its liabilities.”
Except for certain additions not here material the findings of fact which appear in the record correctly reflect the agreed statement. They are contained within the findings of fact certain statements which appear also in the conclusions of law, and which are conclusions of law, and the very conclusions of law which are in issue on this appeal. These are the italicized portion of the following: 3
“The Prudential Bank closed its business and banking house on September 26, 1932. Thereafter it did not continue to do a banking business and, within the meaning and intent of the aforesaid Arizona statute, said bank was closed on September 26, 1932. ...” [Italics supplied]
"The effect of the president’s proclamation was to close all banks within the District of Columbia as for a conservatorship and thus to fix the rights of their depositors and other creditors at that time, subject to subsequent licensing. The Prudential Bank was, further within the intent and meaning of the aforesaid Paragraph 227 of Chapter VIII of the Revised Statutes of Arizona, closed as the result of the President’s proclamation on March 6, 1933. Thereafter it received no license to re-open and to reengage in a general banking business within the District of Columbia.” [Italics supplied]
The present suit was commenced against the appellee on August 1, 1936 — thus more than three years after September 26, 1932, the date of the execution of the liquidating agreement, more than three years after March 6, 1933, the date of the President’s proclamation of a bank holiday, but within three years after March 17, 1936, the date when the Comptroller determined that the Prudential was insolvent and appointed a receiver for it.
According to the agreed statement: “The Receiver’s cause of action is subject to the Arizona statute of limitations. Under the provisions of the Arizona statute an action to enforce the stockholders’ statutory double liability must be brought within three (3) years after the closing of the bank.” This is consistent with a ruling of this court to which I refer more specifically below.
In issue between the parties to the appeal are left the following questions:
I. Do the words “closing of the bank” in section 227, chapter 8 of the Revised Code of Arizona for 1928, requiring that the action to enforce a stockholder’s liability shall be commenced “within three years after the dosing of such bank” apply to the cessation of operations of the Prudential under the voluntary liquidating agreement of September 26, 1932, so that the statute commenced to run against the present action on that date? If the answer to that question is in the negative, then—
IL Did the proclamation of the President of March 6, 1933, have the effect to close the Prudential, and if the answer to this question is yes, do the words of the Arizona statute apply to such a closing so as to cause the statute to commence running on March 6, 1933? If the answer to either portion of question II is in the negative, then—
III. Do the words of the Arizona statute apply to the action of the Comptroller in taking possession of, declaring insolvent, and appointing a receiver for, the Prudential, on March 17, 1936, so that the statute of limitations commenced running then with the consequence that the present action, filed on August 1, 1936, was commenced within time?
The appellee contends that question I must be answered in the affirmative, but that if not, then both portions of question II must be so answered, and that therefore the present action must fail. The appellant contends that question I and the first part of question II must be answered in the negative, and question III in the affirmative, and that hence the present action is in time.
For an understanding of the problems presented in the case certain decisions by *28 the Supreme Court of Arizona and by this court must be borne in mind. As appears from its terms set forth above, the Arizona constitution is silent in respect of any time limitation upon the exercise of the right to recover upon a stockholder’s liability. However, the Supreme Court of Arizona in Cowden v. Williams, 1927, 32 Ariz. 407 , 259 P. 670 , 55 A.L.R. 1059 , Dagg v. Hammons, 1928, 34 Ariz. 445 , 272 P. 643 , 72 A.L.R. 1237 , and In re Bank of Winslow, 1930, 36 Ariz. 507 , 287 P. 444 , held that the stockholders’ liability created by the constitution was a secondary liability, and therefore contingent upon a deficiency of corporate assets, and that not until a determination by a court of the existence of a deficiency did the liability arise and only then did the statute of limitations commence to run. Those cases were decided under a one-year statute (Subdivision 3, Par. 709, Rev.Stat.Anno. 1913, Civil Code of Arizona) applicable to actions upon all liabilities created by statute. But in Button v. O. S. Stapley Co., 1932, 40 Ariz. 79 , 9 P.2d 1010 , the Supreme Court of Arizona modified this rule. It recognized, consistently with the three ■ cases just mentioned, that the liability of stockholders is secondary; but it held, contrary to those cases, that it was not necessary to have a judicial determination of insolvency before the liability could come into existence. It held that the only restriction, in this respect, was that no judgment should be entered against a stockholder until it had been ascertained by the court in the action against him that there was a deficiency against which to apply the liability. And in this case the Supreme Court of Arizona stated, in view of the statute of 1928, that an action to enforce a stockholder’s liability must be brought within three years after the “closing of the bank.” The court did not, however, define those words.
Section 298 of title 5 of the District of Columbia Code of 1929 ( 31 Stat. 1302 , c. 854, § 713; 32 Stat. 534 , c. 1329; 34 Stat. 458 , c. 3533) provides:
“All . . . banking institutions, organized under authority of any act of Congress to do business in the District of Columbia, or organized by virtue of the laws of any of the States of this Union, and having an office or banking house located within the District . . . where deposits or savings are received, shall be, and are hereby, required to make to the Comptroller of the Currency and to publish all the reports which national banking associations are required to make and publish under the provisions of . . . the Revised Statutes of the United States .... And the Comptroller shall have power, when in his opinion it is necessary, to take possession of any such bcmk or company, for the reasons and in the manner and to the same extent as are provided in the laws of the United States with respect to national bmks: . . [Italics supplied]
This statute and its application to banks organized under state laws but doing business in the District, has been before this court for consideration in five cases, all brought by receivers, appointed by the Comptroller, to recover a stockholder’s liability; three of the cases involved banks incorporated in Arizona. These cases are: Washington Loan & Trust Co. v. Allman, 1934, 63 App.D.C. 116 , 70 F.2d 282 ; Harper v. Moran, 1935, 64 App.D.C. 210 , 76 F.2d 980 ; Hamilton v. Offutt, 1935, 64 App.D.C. 385 , 78 F.2d 735 ; Hamilton v. Bergling, 1936, 66 App.D.C. 83 , 85 F.2d 249 ; Moran v. Harrison, 1937, 67 App.D.C. 237 , 91 F.2d 310 , 113 A.L.R. 505 . In Washington Loan & Trust Co. v. Allman we held that section 298 empowered the Comptroller to appoint a receiver in the District for an Arizona banking corporation and that such receiver had power, under the provision of section 227 of the Arizona statute providing the stockholders’ liability must be enforced for the benefit of creditors by “the superintendent of banks or by any receiver,” to bring an action in the District against a stockholder. (Italics supplied) In Harper v. Moran we rejected the contention of a stockholder of an Arizona banking corporation that there was no obligation to pay until the precise amount of his liability under the laws of Arizona had been determined by a court of competent jurisdiction; we held that determination by the Comptroller of the necessity for an assessment was sufficient to give rise to the obligation, and that the decision of the Comptroller that an assessment was necessary is conclusive. In Hamilton v. Offutt we rejected the contention of the receiver for a Virginia corporation that the Federal statute imposing a double liability upon the stockholders of national banking associations 4 should be *29 read into section 298, with the effect to give rise to a stockholders’ liability notwithstanding the absence of such under Virginia law. The rationale of the case was that in the absence of a local statute creating a stockholders’ liability, the law of the state of incorporation governed. In Hamilton v. Bcrgling we reiterated this principle in respect of a West Virginia corporation. In the last case decided in the District, Moran v. Harrison, the facts were as follows: On July 14, 1932, the Comptroller determined insolvency of and appointed a receiver for an Arizona banking corporation. The receiver took possession on July 22, 1932, and levied an assessment on October 18, 1932. He filed action to enforce a stockholder’s liability on October 17, 1935, this upon the theory that the three-year District of Columbia “catch-all” statute (D.CCodc (1929) tit. 24, § 341, 31 Slat. 1389 (1901)) was applicable and also Federal decisions to the effect that statutes of limitations in respect of stockholders’ liabilities commence to run from the date of the assessment by the Comptroller. Rankin v. Barton, 1905, 199 U.S. 228 , 26 S.Ct. 29 , 50 L.Ed. 163 ; McDonald v. Thompson, 1902, 184 U.S. 71 , 22 S.Ct. 297 , 46 L.Ed. 437 . Bui we held that the action was commenced too late, that both the existence and the duration of a stockholders’ liability are determined by the law of the state of incorporation, and that if it is thereby made a condition of the right of action that it shall expire after a certain period has elapsed, no action can be maintained anywhere after that period; therefore the Arizona statute was applicable and the action must have been brought within three years after the closing of the bank. But this case, like Button v. O. S. Stapley Co., did not define the phrase “closing of the batik.”
I.
Do the words “closing of the hank” in the Arizona statute of limitations apply to the cessation of operations of the Prudential under the liquidating agreement o f September 26, 1932, so that the statute commenced to run against the present action on that date: T think the answer to this question is necessarily in the negative. The cessation of operations under the liqnidating agreement was, so far as the record shows, wholly voluntary. Nothing in the record indicates that it was accomplished at the instance of creditors or of the superintendent of banks or of any receiver. The words “closing of the bank” in the Arizona statute, when read, as they must be, in the light of the whole of the statute of which they are a part, obviously apply to an involuntary closing. Section 227, in which these words occur, is a part of chapter 8, title “Banks and Banking,” of the Revised Code of Arizona for 1928. This chapter defines commercial banks, savings banks and trust companies, 5 creates a state banking department and the office of a superintendent of banks, 6 authorizes the superintendent to appoint examiners, 7 requires the superintendent or an examiner periodically to visit and examine banks and to inquire into their resources, mode of management, the official action of their directors, their investments and disposition of funds, and as to whether or not they are violating any of the provisions of laws relating to banks ; 8 in section 227 is then set forth the provision relating to stockholders’ liability and the statute of limitations printed earlier in this opinion. Sections 244 and 245 provide:
“ § 244. ... If the capital of any bank shall be impaired, or if any bank shall refuse to submit its books, papers and concerns to the inspection of any examiner, or if any officer theteof shall refuse to be examined upon oath touching the concerns of such bank, or if such bank shall violate the provisions of its articles of incorporation, or any law of this state, or if such bank shall suspend payment of its obligations, or if such bank shall conduct its business in an unsafe or unauthorized manner, or if from any authorized examination or report the superintendent shall conclude that such bank is in an unsound or unsafe condition to transact the business for which it is organized, or that it is unsafe and inexpedient for it to continue business, an action to procure a judgment dissolving such corporation may be brought by the superintendent.
“§ 245. . . . Whenever it shall appear to the superintendent that a hank has violat *30 ed the provisions of its articles of incorporation or any law of this state, or is conducting its business in an unsafe or unauthorized manner, or if the capital of any bank is impaired, or if any bank shall refuse to submit its books, papers and records to the inspection of any examiner, or if any officer thereof shall refuse to be examined upon oath touching the affairs of such bank, or if any bank shall suspend payment of its obligations, or if from an examination or report, provided for the superintendent shall have reason to conclude that such bank is in an unsound or unsafe condition to transact business, or that it is unsafe and inexpedient for it to continue business, the superintendent may forthwith take possession of the property and business of such bank and retain such possession until such bank shall resume business, or its affairs be finally liquidated as herein provided.”
i|t
Section 246 provides that upon taking charge of the property and business of such a bank as is referred to in section 245, the superintendent shall forthwith be vested with the sole, exclusive and unconditional ownership and title of all the property and assets of the bank, and then states:
“Upon taking possession of the property and business of any bank the superintendent may do such acts as are necessary to conserve its assets and business, and shall liquidate the affairs thereof as hereinafter provided. He shall collect all money and debts due and claims belonging to it, and for such purposes is authorized to bring and defend actions and other proceedings in this state and elsewhere; and upon the order of the superior court of the county in which it is doing business, may sell or compound all bad or doubtful debts, and on like order may sell its real and personal property on such terms, at public or private sale, as the court shall direct, and if necessary shall enforce in this state or elsewhere the liabilities of its stockholders.”
The chapter further provides that when the affairs of a bank have come into the hands of a superintendent for liquidation, the relations between the court and the superintendent shall be the same as the relations between the court and a receiver under existing laws. 9 The chapter contains also detailed directions in respect of the manner in which the superintendent of banks shall proceed to liquidate a bank. 10 There is no provision either in this chapter of the Arizona statutes or elsewhere therein for the voluntary dissolution of a solvent banking corporation as such. The dissolution of such a corporation must be accomplished under the provisions of the statute relating to corporations generally (Rev. Code (1928) c. 14, § 592).
The foregoing I think puts beyond doubt that the dissolution or liquidation of banking corporations contemplated by chapter 8, and therefore necessarily by the words “closing of the bank” in section 227, is involuntary in character.
II.
Did the proclamation of the President of March 6, 1933, have the effect to close the Prudential: I think this question also must be answered in the negative — and it is therefore unnecessary to answer the further question whether the words of the Arizona statute apply to a closing of banks by Presidential proclamation. No authority is cited, and I know of none, to the effect that the President’s proclamation operated to close banks which prior to the-date of the proclamation — in this case since September 26, 1932 — had not been in actual operation as banks. The purpose of the proclamation was to prevent the exporting, hoarding, or earmarking of gold or silver coin or bullion or currency, or speculation in foreign exchange. To that end it ordered that “all banking institutions and all branches thereof located in the United States of America ...” should observe a bank holiday, and that during that period “all banking transactions shall be suspended.” More specifically it said:
“During such holiday ... no such banking institution or branch shall pay out, export, earmark, or permit the withdrawal or transfer in any manner or by any device whatsoever, of any gold or silver coin or bullion or currency or take any other action which might facilitate the hoarding thereof; nor shall any such banking institution or branch pay out deposits, make loans or discounts, deal in foreign exchange, transfer credits from the United States to any place abroad, or transact any other banking business whatsoever.”
It would be a strained construction of the phrase “any other banking business” to say that it embraced liquidation. Moreover such a general phrase should, under *31 the familiar doctrine ejusdem generis, be construed to embrace such transactions as are described in the preceding enumeration. Of such transactions the Prudential was carrying on none, according- to the agreed statement, during the period from September 26, 1932, until the date of the proclamation. I think it obvious that the Presidential proclamation did not operate to close the Prudential. It blows the bubble of logic to the bursting point to say that a proclamation closing the actual operation of banks closes a bank not actually operating.
TIT.
Do the words of the Arizona statute apply to the action of the Comptroller in taking possession of, declaring insolvent, and appointing a receiver for, the Prudential on March 17, 1936, so that the statute of limitations commenced running then with the consequence that the present action, filed on August 1, 1935, was commenced within time: This question I answer in the affirmative. This was a closing, as a matter of law, of the bank which had already actually ceased operating, and it was an involuntary closing. Therefore it is aptly covered by the words “closing of the bank” in the Arizona statute of limitations, which as I have demonstrated under topic I above, apply to imoluntary dissolution or liquidation only. That the power of the Comptroller to subject banks to imoluntary liquidation extends to institutions which have commenced liquidation voluntarily is attested by O’Conner v. Watson, 5 Cir., 1936, 81 F.2d 833 , and Liberty Nat. Bank v. McIntosh, 4 Cir., 1927, 16 F.2d 906 .
The position I thus take is, I think, confirmed by the proposition that tinder the Arizona decisions reviewed above the statutory liability of stockholders is secondary only and hence cannot arise until there lias been some action properly determining insolvency. Nothing in the agreed statement of facts indicates an insolvency of the Prudential until the action of the Comptroller of March 17, 1936. While according to the agreed statement the Prudential was in “financial difficulties” on September 26, 1932, that phrase does not necessarily mean insolvency. It is worthy of note also that if the words “closing of the bank” in the Arizona statute must be applied to voluntary cessation of operations, the result would be, in all instances in which insolvency developed more than three years thereafter, to defeat the purpose of the statute to establish an enforceable stockholders’ liability.
IV.
In respect of the arguments of the appellee. He urges that: (1) The words “closing of the bank” are clear, and therefore permit of no construction. (2) To the knowledge of the Comptroller, whose office prepared the liquidating agreement, the Prudential was insolvent September 26, 1932. The Comptroller could not by delay in the appointment of a receiver postpone beyond that date the commencement of the running of the statute. (3) The Prudential was insolvent on March 6, 1933, because it was at that time not able to conduct its business or meet its obligations as they matured in the ordinary course. (4) The stockholders of the Prudential were not parties to the liquidating agreement, and did not agree to waive the statute or extend the commencement of its running beyond September 26, 1932. (5) Section 298 of title 5, District of Columbia Code of 1929, authorizes the Comptroller to take possession only of banks “having an office or banking house located within the District of Columbia where deposits or savings are received.” On March 17, 1936, the date when the Comptroller took possession of the Prudential, it did not have an office or banking house located in the District where deposits or savings were being received. (6) In Hardee v. Washington Loan & Trust Co., 1937, 67 App.D.C. 241 , 91 F.2d 314 , the Comptroller argued, and this court held, that the President’s proclamation of March 6, 1933, closed all banks on that day, and fixed on that day the rights of creditors in respect of banks which did not reopen; that case controls the instant case.
I think these arguments without merit. (1) While the words “closing of the bank” have no patent ambiguity, they involve a latent ambiguity in that it can not be determined from these words read alone, whether they cover a voluntary as well as an involuntary cessation of business. Therefore, they are subject to construction. (2) The appellee’s second argument is based upon matter not in the record. Nothing in the agreed statement discloses that the Prudential was insolvent September 26, 1932, or that if it was the Comptroller so knew, or that the office of the Comptroller prepared the liquidating agreement. Also this argument begs the question : In saying that the Comptroller could not postpone the commencement of the *32 running of the statute beyond September 26, 1932, it assumes that to be the date when the statute commenced to run. (3) There is nothing in the record to support the assertion of insolvency on March 6, 1933. (4) This argument, like the second, assumes that the statute commenced to run on September 26, 1932. (5) The argument that the words of section 298 “having an office or banking house located in the District of Columbia where deposits or savings are received” do not apply because at the time the Comptroller took possession of the Prudential on March 17, 1936, it did not — because it had not operated since September 26, 1932 — have an office or banking house located within the District where deposits or savings were being received, would, by insistence upon rigid literality of tense reduce the statute to absurdity. Under such a view, the Comptroller would, for example, be disabled to take possession of and liquidate a bank whose operations in the District had been terminated by fire, or whose directors, for the very purpose of avoiding receivership, had stopped banking transactions upon the eve of action by the Comptroller. The words of a statute are not to be given a refined and technical grammatical application when this would defeat the common sense purpose of the statute. See 2 Sutherland, Statutory Construction (2d ed., 1904) § 409. (6) Hardee v. Washington Loan & Trust Co., and the argument of the Comptroller therein, concerned the effect of the President’s proclamation upon operating banks. The case is thus distinguishable.
V.
The conclusion reached by the majority that on September 26, 1932, or at least within three years of that date or of March 6, 1933, the assets of Prudential were insufficient to meet its liabilities, and that the Comptroller could have so determined had he done his duty, is I think not supportable either as a matter of law or as a matter of fact on this record. The Comptroller determined Prudential to be insolvent on March 17, 1936, and on April 30, 1936, he made an assessment and requisition upon the stockholders for a deficiency. It is settled law that the determination of the insolvency of a national bank — and accordingly, under section 298 of title 5 of the District of Columbia Code of 1929 above referred to, of this bank — and of the necessity of an assessment against its shareholders and of the amount thereof is committed exclusively to the judgment and discretion of the Comptroller and is not subject to judicial review except for fraud or mistake. United States Savings Bank v. Morgenthau, 1936, 66 App.D.C. 234 , 85 F.2d 811 , and cases therein cited; Davis Trust Co. v. Hardee, 1936, 66 App.D.C. 168 , 85 F.2d 571 , 107 A.L.R. 1425 ; and see Cooper v. O’Connor, 1939, 70 App.D.C. 238 , 105 F.2d 761 , and Harper v. Moran, 1935, 64 App.D.C. 210 , 76 F.2d 980 . See also Kennedy v. Gibson, 1869, 8 Wall. 498 , 19 L.Ed. 476 ; Miller v. Stock, 3 Cir., 1933, 65 F.2d 773 , 90 A.L.R. 1061 ; Deweese v. Smith, 8 Cir., 1901, 106 F. 438 , 66 L.R.A. 971 , affirmed per curiam, 1902, 187 U.S. 637 , 23 S.Ct. 845 , 47 L.Ed. 344 . In Kennedy v. Gibson the Court said:
“It is for the comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce their personal liability, and whether the whole or a part, and if only a part, how much, shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. He may make it at such time as he may deem proper, and upon such data as shall be satisfactory to him. . . [8 Wall, at 505, 19 L.Ed. at 478 .]
In Deweese v. Smith the Comptroller of an insolvent national bank in Missouri had made a second assessment upon stockholders. They contended in defense that although the Comptroller had the power to make a second assessment in a proper case, he had not in that case because, as the defendant stockholders alleged, the moneys called by the second assessment were not necessary to pay any debts of the bank but were demanded solely to make good losses which the receiver had sustained in the administration of affairs of the bank as a result of an unauthorized investment of moneys of the bank in property in California. But the court held that not even under such a charge could the determination of the Comptroller be collaterally attacked. Disposing of the question, the court, speaking through Sanborn, Circuit Judge, said:
“But this question is not open to litigation in this case. Under the acts of Congress and the decisions of the courts to which reference has been made the comptroller of the currency constitutes a quasi judicial tribunal, to whose exclusive determination Congress has intrusted the de *33 cisión in the first instance of the questions, what proportion of the full liability of the shareholder of an insolvent bank it is necessary to collect to pay its debts, and when this amount shall be paid. His decisions of questions within his jurisdiction are, like the decisions of the land department and of other quasi judicial tribunals, impervious to collateral attack, and open to avoidance by the court only in a direct attack upon them on the grounds of clear error of law, fraud, or mistake. U. S. v. Knox, 102 U.S. 422, 425 , 26 L.Ed. 216 ; U. S. v. Northern Pac. R. Co. [8 Cir.], 95 F. 864, 870 , 37 C.C.A. 290, 296 ; Bogan v. [Edinburgh American Land] Mortgage Co. [8 Cir.], 63 F. 192, 195 , 11 C.C.A. 128, 130 , 27 U.S.App. 346, 350; U. S. v. Winona & St. P. R. Co., 67 F. 948, 959 , 15 C.C. A. 96, 107, 32 U.S.App. 272, 289. There is no averment of any error of law or of any fraud in the action of the comptroller in this case. Nor does the answer contain allegations sufficient to warrant the consideration of the mistake of fact, which is suggested. One who would attack for mistake of fact the judgment of an officer to whose decision the legislative department of the government has committed the determination of a question must distinctly plead and clearly prove the evidence before such officer from which the mistake resulted, the particular mistake that he made, the way in which the mistake occurred, and the fact that, if the mistake had not been made, the decision would have been otherwise, before a court can enter upon the consideration of the main issue alleged to have been decided by the officer through mistake. U. S. v. Northern Pac. R. Co. [8 Cir.], 95 F. 864, 882 , 37 C. C.A. 290, 308; U. S. v. Atherton, 102 U.S. 372, 374 , 26 L.Ed. 213 ; U. S. v. Budd, 144 U.S. 154, 167, 168 , 12 S.Ct. 575 , 36 L.Ed. 384 ; U. S. v. Mackintosh, 56 U.S.App. 483, 490, 29 C.C.A. 176 , 179, 85 F. 333, 336 ; U. S. v. Throckmorton, 98 U.S. 61, 66, 68 , 25 L.Ed. 93 ; Marquez v. Frisbie, 101 U.S. 473, 476 , 25 L.Ed. 800 . There is nothing of this character in the answer in this case, and, even if it contained such allegations, they would not constitute a defense at law, but it would be necessary for the defendant to present them by a bill in equity praying for the proper relief. There is, therefore, nothing in the answer which would warrant a consideration of the correctness of the action of the comptroller of the currency in calling for this second assessment. The only question it presents is whether or not the determination of that question was within his jurisdiction, and of that there can be no doubt. Whether it was necessary to collect this second assessment of 25 per cent, of the par value of the stock of these defendants for the sole purpose of supplying losses wrongfully made by the receiver in the administration of the affairs of the bank, or it was necessary to collect it to pay the debts of the bank, regardless of such deficiency, was a question clearly within the jurisdiction of the comptroller; a question which he must have decided adversely to the defendants when he determined to make this second assessment, and a question upon which his decision is conclusive against the collateral attack upon it which is made by the defendants in their answer. Latimer v. Bard (C.C.) 76 F. 536, 540 ; Kennedy v. Gibson, 8 Wall. 498, 505 , 19 L.Ed. 476 ; [Germania Nat.] Bank v. Case, 99 U.S. 628, 634 , 25 L.Ed. 448 ; [Germania Nat.] Bank v. Case, 131 U.S.Append. 144, 23 L.Ed. 961 ; Casey v. Galli, 94 U.S. 673, 681 , 24 L.Ed. 168 ; [Columbia Nat.] Bank v. Mathews, 85 F. 934, 941 , 29 C.C.A. 491 , 497, 56 U.S.App. 636, 651; Aldrich v. Yates (C.C.) 95 F. 78, 80 .” [ 106 Fed. at 445, 446 .]
The instant case does not constitute an independent attack by bill in equity for fraud or mistake upon the Comptroller’s determination that Prudential became insolvent on March 17, 1936, and that on April 30, 1936, an assessment and requisition upon stockholders was necessary. This case is an action by the receiver to collect an assessment upon a stockholder and the defense is the statute of limitations. And even if we could, under the issues in this case, review the determination of the Comptroller, there is nothing in this record, in my opinion, which warrants upsetting his determination of the fact and the time of insolvency and of the necessity of and the amount of an assessment. The case is before us on an agreed statement of facts, and upon findings by the trial court. The statement of facts shows that at the time of the liquidation agreement of September 26, 1932, the assets of Prudential, at the values set forth in the agreement, largely exceeded its liabilities. There is nothing in the statement of facts to the effect that the values of the assets exceeded the market price thereof. The statement of facts contains no statement as to any insolvency except the insolvency determined by the Comptroller on March 17, 1936. The find *34 ings of fact -say nothing of insolvency except as it may be inferred from the finding, that on April 30, 1936, the Comptroller made an assessment and requisition upon the stockholders. For all that the present record shows the assets of Prudential may have exceeded its liabilities not only on September 26, 1932, when the' bank voluntarily closed, but also on March 6, 1933, when the President’s proclamation effected a closing of Industrial, and also at all times subsequent thereto until March 17, 1936, when the Comptroller determined insolvency to exist. And there -is nothing in the record to warrant the conclusion that the Comptroller negligently delayed taking possession of Prudential, or that he was in any manner unfaithful to his trust.
In United States Savings Bank v. Morgenthau'we refused, against the assertion of the bank and its president that it had never been insolvent and that its assets ought to be restored to its stockholders, to review the Comptroller’s appraisal of assets and determination of insolvency. In Davis Trust Co. v. Hardee we again refused to 1 review the Comptroller’s determination of insolvency of á national bank and his determination that an assessment was necessary to pay its debts, against the assertion of stockholders who sought to enjoin- enforcement of the assessment on the ground that the sale of the quick assets of the bank had been .below fair value. Thus in both cases stockholders who sought the benefit of a collateral attack upon the Comptroller’s determination were denied it. But in the instant case the stockholder is, in effect, permitted to make a collateral attack, and - in part as a result of this escapes the assessment. The present ruling is not only thus in contradiction of previous decisions of this court on the same subject, but also is contrary to the principle, recognized by this court- in many cases, that where a duty requiring expert capacity has been delegated by the Congress to an administrative officer his determinations of fact will not be overthrown on review except where clearly erroneous. Consistency in judicial decision is not merely a demand of logic; it is an essential of equal justice.
Since it is not possible to determine from the words “closing of the bank” alone in section 227 of chapter 8 of the Revised Code of Arizona for 1928, to what kind of a cessation of banking activity they were intended to apply, the section is subject to a latent ambiguity; therefore it must be construed. But the construction put upon it by the majority to the effect that the statute of limitations may commence to run before a deficiency has arisen is I think in defiance not only of the well settled general rule that statutes of limitation commence to run only when the causes of action to which they are applicable arise, but also of the Arizona law itself. A statute should be viewed in terms of the whole legal pattern of which it is a part, including not only related constitutional and statutory provisions but also legislative history and judicial decisions. Before section 227 became law in Arizona the Supreme Court of that state had held, as I point out at the outset of this opinion,, in Cowden v. Williams, Dagg v. Hammons and In re Bank of Winslow, that the stockholder’s liability created by the Arizona constitution was a secondary liability, contingent upon a deficiency of assets to meet liabilities, and that not until determination by a court of the existence of a deficiency did the liability arise, and that only then did the then applicable one-year statute of limitations commence to run. After section 227 supplanted, so far as the liability of stockholders of a bank was concerned, the one-year statute, the Supreme Court of Arizona decided Button v. O. S. Stapley Co., also discussed above. While that case, as I point out, held, contrary to the three previous decisions, that it was not necessary to have a judicial determination of insolvency before -a stockholder’s liability could come into existence — holding that the only restriction, in this respect, was that no judgment should be entered against a stockholder until it had been ascertained by the court in the action -against him that there was a deficiency against which to apply the liability — the case in no other way modified the other three cases. It left standing therefore the proposition that the liability of stockholders is secondary, and that the statute of limitations commences to run when the cause of action arises by virtue of the existence of a deficiency, even though it did not in terms define the words “closing of the bank.”
The interpretation of section 227 is not aided by State Tax Commission v. Yavapai County Savings Bank, 1938, 52 Ariz. 374 , 81 P.2d 86 , or Federal Land Bank of Berkeley v. Yuma County, 1933, 42 Ariz. 45 , 22 P.2d 405 , the tax cases referred to in the majority opinion. Those cases do not construe section 227. And the interpretation of the section is not, I think, aid *35 ed by such a consideration as the supposed concern of the Arizona legislature that the repose of stockholders might be disturbed by uncertainty as to the duration of their liability unless an easily determinable event, that is, the actual closing of their bank— whether insolvency had been determined or not — were designated as the time for the commencement of the running of the statute of limitations. Nothing in the history or context of section 227 indicates that the Arizona legislature was more concerned over the anxiety of stockholders to be informed of the beginning and end of a cause of action against them than it was with the anxiety of depositors as to whether they would be able to reimburse themselves out of the liability of stockholders if the assets of the bank should prove insufficient to pay their deposits. And if the Arizona legislature had been concerned with, and obliged to discriminate between, the comparative anxieties of stockholders and depositors, it seems reasonable to conclude that it would have intended to prefer the latter class of persons, who put their money in banks for safe keeping, to the former, who put it in bank stocks for investment, and would therefore have intended that the statute of limitations should not commence to run until there was a determination of insolvency, thus giving the depositors the benefit of a full three years within which suit might be brought by the receiver against the stockholders.
Finally, I think that the point of view which the majority take in this case will have unfortunate practical results. As a matter of public policy and of fairness to both creditors and stockholders it is desirable that banks in difficulties be so dealt with by the Comptroller as to pay the creditors in full if possible, and to do this without assessing the stockholders if this is also possible. To accomplish such results often takes time — time during which" market conditions affecting the value of assets may fluctuate — time in which to find purchasers for slow assets. But, in the view of the majority, section 227, as now construed, will operate as a “prod” upon the Comptroller to make an early determination of insolvency and of the necessity of an assessment and a prompt commcnceent of action against stockholders, in order to avoid a possible loss of remedy against the latter. Thus to harry the Comptroller into his determinations will operate against attempts by him to work banks out of financial difficulties for the benefit of both creditors and stockholders.
Rule 70. Record on Appeal to a Circuit Court of Appeals; Agreed Statement. When the questions presented by an appeal to a circuit court of appeals can be determined without an examination of all the pleadings, evidence, and proceedings in the court below, the parties may prepare and sign a statement of the case showing how the questions arose and were decided in the district court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the questions by the appellate court. The statement shall include a copy of the judgment appealed from, a copy of the notice of appeal with its filing date, and a concise statement of the points to be relied on by the appellant, if the statement conforms to the truth, it, together with such additions as the court may consider necessary fully to present the questions raised by the appeal, shall bo approved by the district court and shall then be certified to the appellate court as the record on appeal. 28 U.S.C.A. following section 723c.
This assumes that the Prudential was closed by the President’s proclamation. As will appear below this is one of the questions in the case.
These conclusions of law are embraced within conclusions of law numbers 1 and 2 appearing on pages 12 and 13 of the record.
“The stockholders of every national banking association shall be held individually responsible for all contracts, debts, and engagements of such association, each *29 to tiis amount of his stock therein, at the par value thereof in addition to the amount invested in such stock.....” Act of June o, 1804, Rev.Stat. § 5151, as amended by Aet of December 23, 1913, 38 Stat. 273 , 12 Ü.S.CA. § 63.
Section 209.
Section 210.
Section 211.
Section 216.
Section 247.
Sections 249-253 inclusive.