"The plea of nultiel corporation cannot be interposed as against a certificate of the Comptroller of the Currency which has been issued to the bank by him. The Comptroller was clothed with jurisdiction to decide as to the completeness of the organization, and his certificate is conclusive upon the subject for all purposes of this litigation.

"It has the same effect, and for the same reason, as his determination and order with respect to the amount to be collected from each stockholder in the event of the failure of the association. No question can be raised in this collateral way as to either.

"In Thatcher v. Bank, 19 Mich. 196, it was held that whether there was any defect in the process of organization was a question for the Comptroller to decide, and that His certificate of compliance with the Act of Congress removes any objection which might otherwise have been made to the evidence upon which he acted.' In this we concur."

"Corporate Existence: A grant or charter may be presumed from long-continued exercise of corporate powers; but to give rights to this presumption, the acts done must bear the impress of corporate acts; must be such as corporations are competent, and individuals incompetent, to perform. Green v. Dennis, 16 Am. Dec. 58: and a charter will be presumed to exist from long exercise of corporate rights, or from other circumstances; Selma & T. R. R. Co. v. Tipton, 39 Ind. 344. Where a corporation has gone into operation and rights have been acquired under it, every presumption should be made in favor of the legality of its existence: Hagerstown T. R. Co. v. Creeger, 9 Id. 551. But it is sufficiently organized to bind subscription to the capital stock when the parties mentioned in the charter have, in pursuance of its terms, by written articles of association organized themselves, and opened books of subscription.

The principal case is cited in Harris v. McGregor, 29 Cal. 125, to the point that there must be a substantial compliance with all the requirements of the statute by persons seeking to become a body corporate, but the corporation can be considered in esse. Consequently, a certificate of incorporation. which does not set forth the name of the city or town or county in which the principal place of business of the corpora

tion is to be located does not establish the existence of a corporation. It is also cited in Spring Valley W. W. v. S. F., 22 Cal. 434, to the point that the failure to file a duplicate of the articles of association with the Secretary of State, is not a fatal defect.”

The process of organization being complete and the bylaws for the corporation adopted as required by law, the bank becomes a lawful institution denominated a private corporation, and can begin business. In the beginning of business its very first act may be contested, and the question of its due incorporation and power to act be brought to issue, and in such event proof of corporate existence is required.

$30. Organization of branch banks.

Under national authority, a national banking institution. has no authority to establish a branch banking institution, except by special provision or authority from Congress. This authority was granted at Chicago, Illinois, during the World's Columbian Exposition to any national bank located in the city of Chicago, which might be designated by the World's Columbian Exposition. The branch bank was restricted by the act to have only such rights as the bank to which it belonged, and limited to conduct such business for a period of two years.

The question of privilege in the establishment of a branch bank seems to be settled that a national bank has no right to establish branch banks without special legislative authority. The ruling is upon the principle, no doubt, that the bank must have a location or place where all its business is to be transacted, and branches, especially if established ouside of the city or town, and at a place other than the location of the mother bank, would lead to conflict as to where notes should be protested, and payments to be made. But where State banks, which at the time of the conversion into a national bank have branches established, under section 5155 Revised Statutes, United States, may maintain such branches. But where such branches are maintained "the amount of the circulation redeemable at the mother bank and each branch (is) to be

6 Mokelumne Hill Mining Co. v. Woodbury, 73 Am. Dec. 658.

regulated by the amount of the capital assigned to and used by each."

In the case of Merchants' National Bank v. State National Bank, 10 Wall, 604, it is held that the provisions requiring "the usual business" of the association to be transacted" at an office or banking house in the place specified in its organization certificate" must be construed reasonably, and a part of the legitimate business of the association which cannot be transacted at the banking house, may be done elsewhere.

The Comptroller of the Currency in his report of 1902, upon the question or right of a national bank to maintain a branch or agencies principally for the reception of deposits elsewhere than at its banking house in the same or adjacent locality, says:

The only provision of law relating to branch banks, is the National Bank Act, is found in section 5155, United States Revised Statutes, and reads as follows:

It shall be lawful for any bank or banking association, organized under State laws and having branches, the capital being joint and assigned to and used by the mother bank and branches in definite proportions, to become a national banking association in conformity with existing laws, and to retain and keep in operation its branches, or such one or more of them as it may elect to retain.

*

The granting of this special privilege to State banks and the absence of any similar provision in the law with respect to banks of primary organization have always been construed by the Comptroller to imply that banks of the latter class were not permitted to have branches. The section cited absolutely restricts branch banks of converted associations to such as have a definite proportion of the capital of the parent bank assigned to them, and it is not to be assumed that the law contemplated that associations of primary organization should be permitted to assign any portion of their capital to and operate branches.

This fact is further to be inferred from section 5138, United States Revised Statutes, which prohibits the formation of asso

7 Burton V. Burley, 9 Biss. (U. S.) 253; Armstrong v. Second Nat. Bank of Springfield, 38 Fed.

883; Bowman v. Cecil Bank, 3 Grant Cas. 33.

ciations with less capital than $200,000 in cities of population exceeding 50,000, and contains similar provision with respect to banks organized in places with less population than 50,000. To permit the establishment of branch banks would not only render possible an evasion of the provisions of section 5138, but tend to discourage the organization of banking associations which, in the absence of such branches, might be formed.

Section 5134 provides in part that the organization certificate of a national bank shall show "the place where its operations of discount and deposit are to be carried on," and section 5190 that "the usual business of each national banking association shall be transacted at an office or banking house (not at offices or banking houses) located in the place (not places) specified in its organization certificate."

The words "place" and "at an office or banking house" have always been construed by the Comptroller to mean the legal domicile of the corporation, of which it can have but one; and this construction is sustained by the Solicitor of the Treasury in an opinion rendered August 10, 1899, on the question of the right of a national bank to establish and maintain an auxiliary cash room at some point distant from its banking house, for the purpose of receiving deposits and paying checks. The Solicitor says:

This section (5190, U. S. Rev. Stat.) contemplates that the usual business of a national banking association shall be transacted at one office and banking house, and as receiving deposits and paying checks belonging to the "usual business" of a bank, I am of the opinion that the statute does not authorize the establishment of an auxiliary cash room in a different part of the city for the purpose proposed. Besides, it may be observed that if a national banking association can lawfully establish and maintain a separate office for receiving deposits and paying checks, it could as well establish as many of such auxiliary cash rooms in the city of its corporate residence as its business might require; and, indeed, the entire business of the bank may be parceled out and conducted in the same way all over the city.

The Supreme Court of the United States, in the case of Armstrong v. Second National Bank, 38 Fed. Rep. 886, involving, among other things, the question of the right of a

national bank to cash a check elsewhere than at its banking house, held that:

Under this section (5190) it certainly would not be competent for a national bank to provide for the cashing of checks upon it at any other place than at its office or banking house. If, therefore, it is unlawful for a national bank to cash a check elsewhere than at its banking house, it is likewise unlawful for it to discount notes or to receive deposits elsewhere, for one is as much a part of the "usual business" of a bank as the other.

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While it is obviously impossible for a bank to transact its entire business within the four walls of any single building, it is not held that the law contemplates that the " entire business," as distinguished from its "usual business," shall be transacted in its banking house.

In the case of The Merchants' National Bank v. The State National Bank, 10 Wall. 604, it was held in this connection that:

The provision requiring the "usual business" of the association to be transacted "at an office or banking house specified in its organization certificate" must be construed reasonably, and a part of the legitimate business of the association which cannot be transacted at the banking house may be done elsewhere.

The question involved in this case was the right of the bank's officers to purchase gold elsewhere than at its banking house, and the court held that:

The gold must necessarily have been bought, if at all, at the buying or selling bank, or at some third locality. The power to pay was vital to the power to buy, and inseparable from it.

The "legitimate business" of a bank, therefore, which a reasonable construction of the law would permit to be done elsewhere than at its banking house would seem to be restricted to transactions similar in character to that involved in the decision quoted, and not the ordinary and usual business of receiving deposits and cashing checks.

The argument has been advanced that clearance house associations are equivalent to branch banks, and the recognition by the National Bank Act of the one affords warrant for the