on him by his employer, but may assume that his employer and his agents have exercised for his safety such care as the circumstances reasonably admit. C. & O. Ry. Co. v. De Atley, 241 U. S. 310, 315, 36 Sup. Čt. 564, 60 L. Ed. 1016; C., R. I. & P. Ry. Co. v. Ward, 252 U. S. 18, 40 Sup. Ct. 275, 64 L. Ed. 430. Did the defendant subject Bogdan to such extraordinary dangers; and, if so, were they so obvious that he must be held, in law, to have assumed the risks arising from them?

[4] There was testimony that the engine of the train which struck the decedent was operated by the defendant without a headlight, under conditions of darkness and storm which made it difficult or impossible for the decedent, though on watch for a train, to see it, and for his companion to know of its approach until it had come abreast of him and had struck the decedent. If lack of evidence of negligence on the part of defendant was the ground on which the learned trial judge entered judgment of non-suit, we think he fell into error, for he could not have held, as a matter of law, that the operation of a train in a forward movement, at night, without a headlight on the engine, was an ordinary danger of the trackworker's employment, the risk of which he had assumed, Hines, Director General, v. Knehr (C. C. A.) 266 Fed. 340; or, if it was an extraordinary danger involving negligence of the defendant, he could not have decided, as a matter of law, that the engine, in the darkness which enveloped it because of the absence of a light, was so obvious that an ordinarily careful person, under the circumstances, could, and therefore should, have seen it and appreciated the danger, Boldt v. Pennsylvania R. Co., 245 U. S. 441, 445, 38 Sup. Ct. 139, 62 L. Ed. 385; Gila Valley Ry. Co. v. Hall, 232 U. S. 101, 34 Sup. Ct. 229, 58 L. Ed. 521; Seaboard Air Line v. Horton, 233 U. S. 492, 504, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475.

As these were issues of fact which bore directly on the question of assumption of risk, we think they, together with the question itself, should have been submitted to the jury. McGovern v. P. & R. R. Co., 235 U. S. 389, 401, 35 Sup. Ct. 127, 59 L. Ed. 283; Director General v. Templin (C. C. A.) 268 Fed. 483.

The judgment below therefore is reversed and a new trial awarded.

AMERICAN BANK & TRUST CO. et al. v. FEDERAL RESERVE BANK OF ATLANTA, GA., et al.

(Circuit Court of Appeals, Fifth Circuit.

No. 3552.

November 19, 1920.)

1. Removal of causes 27-Suit against federal reserve bank removable; "national banking association."

Federal reserve banks, which do not serve the public generally and locally are not "national banking associations," within Judicial Code, § 24(16), being Comp. St. § 991 (16), which makes such associations citizens of the state where located for general purposes of jurisdiction of the federal courts, and a federal reserve bank may remove a suit on the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(269 F.)

ground that it is a national corporation and that the suit is one arising under the laws of the United States.

2. Removal of causes 19 (1)—Suit based on alleged ultra vires acts of federal reserve wank removable.

A suit against a federal reserve bank to restrain it from pursuing a method of doing business as beyond the powers conferred by its charter and involving a construction of the act creating such banks, held removable as one arising under the laws of the United States.

3. Banks and banking 2881⁄2, New, vol. 11A Key-No. Series-Method of collecting checks by federal reserve bank.

The provision of Federal Reserve Act Dec. 23, 1913, § 13(1), being Comp. St. § 9796(1), that no charge for remission of proceeds of checks shall be made against federal reserve banks, does not prohibit such banks from receiving from member and depositing banks checks drawn on nonmember banks, nor limit them to the customary method of collecting such checks by transmitting them to the drawee bank for remission of the amount, where by custom the drawee bank charges exchange on the remittance, and to avoid such charge and to aid in the purpose of the act to establish a par clearance system, a reserve bank may lawfully cause such checks to be presented for payment over the counter of the drawee bank.

4. Banks and banking 2881⁄2, New, vol. 11A Key-No. Series-Bill charging conspiracy by federal reserve bank and officers insufficient.

A bill by state banks, not members of the federal reserve system, against the federal reserve bank of the district and its officers, complaining of the method of such bank in collecting checks drawn on complainant banks, held not to state a cause of action for equitable relief on the ground of conspiracy to oppress and coerce complainants.

Appeal from the District Court of the United States for the Northern District of Georgia; Beverly D. Evans, Judge.

Suit in equity by the American Bank & Trust Company and others. against the Federal Reserve Bank of Atlanta, Ga., and others. Decree for defendants, and complainants appeal. Affirmed.

Alex W. Smith, of Atlanta, Ga., William H. Watkins, of Jackson, Miss., Orville A. Park, of Macon, Ga., T. M. Stevens, of Mobile, Ala., M. M. Baldwin, of Birmingham, Ala., Smith, Hammond & Smith, of Atlanta, Ga., Stevens, McCorvey & McLeod, of Mobile, Ala., Tillman, Bradley & Morrow, of Birmingham, Ala., and Watkins & Watkins, of Jackson, Miss., for appellants.

Hollins N. Randolph and Robert S. Parker, both of Atlanta, Ga., for appellees.

Before WALKER and BRYAN, Circuit Judges, and GRUBB, District Judge.

GRUBB, District Judge. This is an appeal from a decree in equity of the District Court of the United States for the Northern District of Georgia, dismissing the bill or petition for want of equity. The suit was originally brought in the superior court of Fulton county, Ga., and was removed to the District Court of the United States for the Northern District of Georgia by the appellee, the Federal Reserve Bank of Atlanta. The appellants were state banks of Georgia, not members of the federal reserve system. The relief prayed for in

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the petition filed in the state court was an injunction against the appellees, restraining them from collecting checks drawn on appellants, "except in the usual and ordinary channel of collecting checks through correspondent banks or clearing houses"; the purpose being to prevent collection through agents presenting the checks over the banks' counter. The appellants moved to remand the cause to the state court, which was denied, and the bill was dismissed on the appellees' motion to dismiss for want of equity. The appeal presents the questions of the correctness of the rulings of the District Court (1) in refusing to remand the case and (2) in dismissing the bill on the merits.

1. The jurisdictional amount is conceded to be present. There was no diversity of citizenship claimed. Removal was granted because the cause was considered to be one arising under the Constitution and laws of the United States-this because (1) the defendant, the Federal Reserve Bank, was incorporated under an act of Congress, and was neither a railroad incorporation nor a national banking association; and (2) because the appellants' petition or bill, as amended, introduced a federal question into the record, in that it charged the acts of the defendants, sought to be enjoined, to be ultra vires of the powers of the appellee, the Reserve Bank, granted by the Federal Reserve Act (38 Stat. 251) and its amendments. If the District Court had original jurisdiction of the cause of action for either or both of the reasons mentioned, the cause was properly removed. The appellants contend. that the Federal Reserve Bank is a national banking association, the presence of which as a party defendant would not introduce a question arising under the laws of the United States, and that there is. no other such question presented by the appellants' petition or bill.

[1] We think the United States District Court had original jurisdiction of the cause of action for both of the reasons assigned. The case of Osborn v. Bank of the United States, 9 Wheat. 738, 6 L. Ed. 204, supported by many subsequent decisions of the Supreme Court, settles the question of the jurisdiction of the federal court in cases in which one of the parties is a corporation which owes its creation. to an act of Congress, unless another act of Congress has withdrawn such jurisdiction. Nor is it important whether the federal incorporation occupies the position of plaintiff or of defendant in the action. This is true, unless a long line of Supreme Court decisions, in which jurisdiction was sustained upon this ground, without reference to the position of the corporation in the lineup of the parties, be disregarded. From this follows the right of a federal incorporation, made a defendant in a cause in a state court, to remove the cause to the federal court, unless prohibited by an act of Congress. Texas & Pacific Railway Co. v. Cody, 166 U. S. 606-609, 17 Sup. Ct. 703, 41 L. Ed. 1132; Washington & Idaho R. R. Co. v. Coeur d'Alene Ry. Co., 160 U. S. 77-93, 16 Sup. Ct. 231, 40 L. Ed. 355. Congress has withdrawn jurisdiction only in cases of railroad companies and national banking associations.

The contention of appellants is that the Federal Reserve Bank of Atlanta is a national banking association, within the meaning of the Act of July 12, 1882, c. 290 (22 Stat. 162), the Judiciary Act of March

(269 F.)

3, 1887 (24 Stat. 552), as corrected by the Act of August 13, 1888, c. 866, § 4 (25 Stat. 436), and by section 24 of the Judicial Code of 1911 (Comp. St. § 991). The prohibiting clause of the latter is:

"And all national banking associations established under the laws of the United States shall for the purpose of all other actions against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located."

If this language applies to the Federal Reserve Banks, it withdraws jurisdiction from the federal courts in cases in which they are parties, and in which no other ground of jurisdiction appears in the record. We do not think it can be held to apply. At the time of the original limitation of jurisdiction in the Act of July 12, 1882, and at the time. of its renewals in the Judiciary Act of 1887, and in the Judicial Code of 1911, federal reserve banks were unknown. The only national banking associations, then existent, were the national banks organized under the national banking laws. The question is whether Congress intended to include within this designation banks to be subsequently created of the nature of the federal reserve banks. The answer will depend upon the result of a comparison instituted between the national banks and the reserve banks, and is to be determined, not so much by points of identity (for all banks have many such), but by points of difference.

The important differences between national banks and reserve banks, so far as the solution of this question is concerned, are (1) the disparity in the number of each class, and (2) that the reserve banks are banks of deposit and discount for other banks only, and not for the general public. There are many other important differences, but we think the two mentioned are determinative. The one class, small in number, acts as governmental fiscal agencies, with no general clientèle ; the other class serves the public generally and locally, and they are necessarily numerous. That all the provisions of the National Banking Act could be made applicable appropriately or safely to the class of reserve banks is clearly impossible. Yet the same reasoning that would apply the limitation of jurisdiction imposed upon national banks to reserve banks would make it necessary to apply all other limitations against and grants in favor of national banks to reserve banks. If the reserve banks are national banking associations, within the meaning of the Act of July 12, 1882, and its successors, for one purpose, they are so for all purposes, of the national banking laws. Such a conclusion would be a dangerous one, and lead to unforeseeable consequences.

We think it safer to conclude that Congress intended national banking associations to include those only that were then being created, or those of a kindred nature that might thereafter be created, and that the differences between ordinary banks of deposit and discount, with the public as customers, and banks whose only permissible stockholders and customers are the government and other banks, and which are more governmental agencies than private institutions, are not within the purview of national banking associations, as contemplated by

Congress when it enacted the limitation upon the jurisdiction of national banking associations. In view of the paucity in number of the reserve banks, and their more intimate relation to the government, and their more remote contact with the general public, Congress may well have found reason not to withdraw the jurisdiction of the federal courts from them by reason of their federal incorporation, though it had done so in the case of national banks. There is no express withholding of such jurisdiction. To imply it would necessarily lead to other implications so far-reaching and difficult to anticipate that we do not think it should be implied.

If the fact of federal incorporation of the reserve banks confers jurisdiction on the federal court, the fact that the officers of the appellee bank are made individual codefendants with it, and that they are citizens of Georgia, does not prevent removal. Matter of Dunn, 212 U. S. 374, 29 Sup. Ct. 299, 53 L. Ed. 558.

[2] 2. The amendment to the bill or petition of appellants charged that the acts of the appellees sought to be enjoined, if committed, would be committed in excess of the powers of the Federal Reserve Bank of Atlanta, and in violation of the provision of the Federal Reserve Act. Paragraph 9 of the amendment charges that

"The coercive measures, now threatened, are not only not authorized or required by the terms of the Federal Reserve Act, which includes the charter of defendant reserve bank, but express provision is found therein for the performance of all clearing house functions, therein imposed in the regular way and through orderly banking channels, applicable to nonmember banks, as well as member banks. Wherefore plaintiffs charge that the threatened coercive measures are ultra vires the charter of defendant Reserve Bank, and the execution thereof by the individual defendants would be illegal and should be enjoined."

The purpose of the petition or bill was not to enforce the collection of compensation for services availed of by the defendant Reserve Bank, at their reasonable value under the common-law right. It was to compel the defendant bank to avail itself of such services, or, as an alternative, to abstain from handling the plaintiffs' check for collection. The bill prayed that the defendant bank be enjoined from presenting petitioners' or plaintiffs' checks for collection in any but the usual way through correspondence and remittance. Section 13 of the Federal Reserve Act provided that "no such charges [for remission] shall be made against the federal reserve banks."

Appellants' contention is that this prohibition prevents the federal reserve banks from expending money in any way for the collection and remission of the proceeds of checks and drafts, drawn on nonmember and nondepositing banks, and that any attempt to collect such checks and drafts, by presenting them over the counter to drawee banks, which would not remit for them at par, was unauthorized and ultra vires of the powers of the reserve banks, under the Federal Reserve Act; and appellants ask that the defendant bank be enjoined from handling such checks and drafts in the manner stated for that reason. Appellee the Reserve Bank asserts its right under the same provision of the Federal Reserve Act to collect such checks and drafts by any