First National Bank in Plant City v. Dickinson/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

It will come as a shock, where common sense is the guide, to learn that an armored car picking up merchants' cash boxes and checks is a branch bank. Conceivably a bank could use an armored car as a place of business by stationing it at designated places during designated hours for opening accounts, receiving deposits, making loans, and the like. But no armored car was so used in these cases.

Federal law stated in the McFadden Act, 12 U.S.C. § 36(f), defines 'branch' as any facility 'at which deposits are received, or checks paid, or money lent.' And Congress provided that national banks may establish 'branches' whenever, wherever, and however state banks may do so. First National Bank of Logan, Utah, v. Walker Bank & Trust Co., 385 U.S. 252, 261-262, 87 S.Ct. 492, 497, 17 L.Ed.2d 343. The opinion of the Court leaves the impression that the McFadden Act created 'competitive equality' between national and state banks across the board. But as we stated in the Walker Bank case, that Act 'intended to place national and state banks on a basis of 'competitive equality' insofar as branch banking was concerned.' Id., at 261, 87 S.Ct., at 497. (Italics added.) There was no other or additional overriding principle of 'competitive equality' that limited off-premises services of national banks to those that state banks could provide.

Among those off-premises activities of national banks was the furnishing of armored car messenger services, which, we are advised by the Comptroller of the Currency, antedated by many years the 1927 McFadden Act. One can read the legislative history of the Act without finding any hint that Congress was providing 'competitive equality' as respects armored car messenger services.

As stated by the District Court, 'If no branch is involved here, there is no requirement that the national bank's practice must conform to that of the state banks.' 274 F.Supp. 449, 453.

The services rendered in these cases were undertaken only after approval by the Comptroller of the Currency who attached a condition that 'the messenger is the agent of the customer rather than of the bank.' I thought it was elemental law that a bank deposit cannot arise without some unequivocal act whereby both parties express their consent to the creation of the status of debtor and creditor. The District Court, which is a more faithful exponent of local law than are we, so ruled. 274 F.Supp., at 454. Certainly the Comptroller, who is the supervisory agent for policing § 36, has some authority to define 'deposits' as used in § 36(f), and this case affords no excuse for disparaging him. This is not a government by administrative fiat; the exercise of administrative discretion is normally subject to judicial review. When it comes to an administrator's construction of a statutory term in the law that he supervises, however, we have allowed his expertise great leeway in the definition, only rarely disturbing it.

The Comptroller's definition of 'deposits' should be honored here. For where the risk is on the customer that his cash and checks may never reach the bank, he cannot in good sense or in good law be deemed to have made a deposit while the funds are in transit.

By the standards of administrative law honored until today, the Comptroller was justified in defining 'deposits' to make the armored cars messengers of the customers, not agents of the bank. So whether common sense or the law is our standard, the judgment of the Court of Appeals should be reversed. The Comptroller's authorization of these armored car activities as being permissible under the National Bank Act was an interpretation of the Act which, as Mr. Justice Stewart says in his dissent, cannot be said to be 'not a reasonable one.'