Before SPARKS, MAJOR, and KERNER, Circuit Judges.
This appeal is prosecuted only by the plaintiff, Raymond J. Nitkey, hereafter referred to as the "relator." The case is a qui tam civil action. The complaint was filed June 22, 1943, under the "Informer's Act," as it then existed. 31 U.S.C.A. §§ 231 to 235 inclusive.*fn* The amended complaint was filed August 19, 1943. This Act was amended December 23, 1943, and on January 20, 1944, the District Court, under § 232(D) as thus amended, stayed these proceedings, and ordered notice to be given to the Attorney General of the United States, as therein prescribed.This was done and on March 18, 1944, the United States entered its appearance. The rulings complained of are the court's orders of December 28, 1944, dismissing the relator's suit for want of jurisdiction, on motion of all defendants, and denying his motion to strike the appearance of the United States of America.
The facts upon which this controversy arises are as follows: On June 27, 1932, the Central Republic Bank and Trust Company of Chicago, an Illinois banking corporation (hereafter referred to as the State Bank), obtained a loan of $90,000,000 from the Reconstruction Finance Corporation (referred to hereafter as R.F.C.). That bank received the money represented by such loan from R.F.C. on the following dates and in the following amounts, - June 27, 1932, $10,000,000; June 29, 1932, $30,000,000; October 6, 1932, $50,000,000. It is alleged in the amended complaint that the individual defendants were directors or officers of this state bank at the time of the loan, and became members of the board of directors of the defendant, the City National Bank and Trust Company (hereafter referred to as the City National Bank), upon its organization on or about October 6, 1932, and still are.
On or about October 5, 1932, there was $50,000,000 of the loan undelivered to the State Bank, and all of the latter's assets except cash had been pledged and delivered to R.F.C. as security for the loan. As a condition precedent to the payment to Central Republic by R.F.C. of the balance of the loan, it was then proposed by the individual defendants to organize the City National, and by appropriate contract between City National and R.F.C. that City National would take up and purchase from R.F.C. approximately $15,000,000 of the assets pledged to and held by R.F.C., $10,000,000 of which would be acquired absolutely by City National, and the other $5,000,000 would be acquired, subject to the right of City National during an agreed period, to substitute the $5,000,000 of assets, or any part thereof, for an equivalent amount of the collateral assets retained by R.F.C. At that time it was mutually understood by the Comptroller of the Currency, and its General Counsel, and by the individual defendants that the Illinois Statute provides in substance that an Illinois State bank may sell all of its assets to another bank without first obtaining the consent of its shareholders, provided the purchasing bank assumes all of the liabilities of the selling bank and the transaction is approved by the State banking authorities of Illinois.
Prior to October 5, 1932, the Comptroller of the Currency persented to the General Counsel of the Division of Insolvent National Banks, a written memorandum upon which he sought an opinion concerning the liability of the proposed City National Bank and Trust Company, under its contemplated contract, for the reconstruction loan made to the State Bank. This memorandum stated the assumed facts relating to the proposed transaction as a basis for the requested opinion. Among other facts, not here material, it stated that the National Bank assumed and agreed to pay the "existing unsecured deposit liabilities" of the State Bank, as shown by [*] books at the close of business on the date of the consummation of the transaction; that the term "unsecured deposit liabilities" as used in the contract was specified not to include "deposit liabilities payment whereof may be secured by pledged collateral but shall include deposit liabilities payment whereof may be secured by a surety or other similar bond." It further stated that the State Bank acknowledged itself indebted to the National Bank for the amount of liabilities so assumed, and, in order to enable the National Bank to pay said deposit liabilities on demand, the State Bank agreed that it would pay and deliver to the National Bank cash aggregating the full amount of the deposit liabilities so assumed, said cash funds to be credited by the National Bank upon the aforesaid indebtedness of the State Bank to the National Bank resulting from assumption of said liabilities. It further stated: "Nothing herein contained or otherwise shall constitute an assumption by the National Bank of, or in any way render the National Bank liable for, directly or indirectly, any obligations of the State Bank of any kind or character whatsoever other than the said deposit liabilities herein specifically assumed."
It further stated as assumed facts that, "It is understood that several months ago a commitment was made by the R.F.C. to the State Bank to loan it approximately . Millions of dollars, and that a portion of said loan has heretofore been paid over to the State Bank in accordance with the commitment and that it is now contemplated that the R.F.C. will pay over to the State Bank the balance of the commitment ($50,000,000), or so much as may be found to be necessary to enable the State Bank to acquire the cash for delivery to the new National Bank in accordance with the foregoing contract between the two banks. It is further understood that as security for the R.F.C. loan, the State Bank pledged all of its assets (other, of course, than its cash) to the Finance Corporation and that R.F.C. now holds said assets, and that as a condition precedent to the payment by R.F.C. to the State Bank of the balance of said commitment, an appropriate contract is to be drawn, apparently between the new Bank and R.F.C., whereby the National Bank will agree to take up or purchase from the Finance Corporation approximately $15,000,000 of the assets held in pledge by the Finance Corporation from the State Bank, $10,000,000 * * * to be acquired absolutely by the National Bank, and the other $5,000,000 to be acquired subject to the right of the National Bank during an agreed period, to substitute said $5,000,000 of assets or any part thereof for an equivalent amount of the collateraled assets retained by the Finance Corporation."
The assumed facts then set forth the substance of the Illinois Statute which we have quoted.
The query submitted was: "Does the City National Bank, as a result of its contract above outlined whereby it assumes the unsecured deposit liabilities of the State Bank, also assume or become liable for the loan made by R.F.C. to the State Bank?"
The General Counsel gave his written opinion, on October 5, 1932, that the new National Bank would not, by entering into the above transaction, become liable for the repayment of any part of the aforesaid loan to R.F.C. He further stated that the transaction as submitted could not be considered, in substance, a sale, for the reason that there were no assets, other than the money passing from the State Bank to the National Bank, and according to the contract the money which was to be paid by the State Bank to the National Bank was expressly provided to be in payment of the debt of the State Bank to the National Bank arising from the agreement of the National Bank to assume specified deposit liabilities of the State Bank. He further stated: "The transaction is, in final analysis, an arrangement between the two banks whereby the National Bank pays the deposit liabilities of the State Bank, with a provision for reimbursement to the National Bank by the State Bank. Consequently, if this construction of the contract is correct, the Illinois Statute does not apply and no liability to the National Bank exists for repayment of the Reconstruction loan."
On the question of estoppel he further stated as follows: "I am most emphatically of the opinion that no court would hold that R.F.C. could actively participate in this transaction, and furnish the money for its consummation, with a knowledge of the entire situation, and at the same time preserve the status of an unknown or unlisted creditor vested with power of attack upon the very transaction it helps to culminate. I feel sure that the courts would hold that the R.F.C. would be estopped from raising the point that it, as a creditor, was not included among the creditors whose debts were assumed under the contract. This view is supported by the additional element of estoppel that it is understood that it will be one of the conditions imposed by the R.F.C., before it will release the balance of the loan commitment, that the new bank must agree to take from the R.F.C. $15,000,000 of the assets of the old bank already pledged with it so as to reduce, to that extent, the business risk assumed by the R.F.C. in disbursing the balance of the commitment to the old bank. * * *"
The facts with respect to the memorandum of the Comptroller of the Currency and the opinion of his General Counsel, as above referred to, and as verified by the oath of the former, are before us as an exhibit to defendant's motion to dismiss plaintiff's action because of lack of jurisdiction.
As we understand plaintiff's theory it is that City National's contract to assume and pay the State Bank's deposit liabilities is invalid under the Illinois statute, Smith-Hurd Stats. c. 16 1/2, § 12, because City National did not assume all liabilities of the State Bank including its loan from R.F.C. If this were true, then a cause of action such as plaintiff has alleged arose in 1932, when the contract was entered into and performed, and could be sued upon at any time within six years from the time the cause of action arose, at the expiration of which time the court lost jurisdiction of the subject matter. This plaintiff waited eleven years before filing his complaint.
However, plaintiff contends that in violation of the statute the defendants concealed their alleged misconduct in failing to report the liability of City National for the debt of the State Bank to the R.F.C. in its subsequent reports which were required by statute to be made to the Comptroller of the Currency three times each year. Hence he argues that each of such concealments tolled the statute, 31 U.S.C.A.§ 235, with respect to the original alleged debt plus the accumulated interest thereon, and the penalties. That section is more than a mere statute of limitations. It is jurisdictional and strictly limits the power of the court to assume jurisdiction. United States ex rel. Louisville Cement Co. v. Interstate Commerce Commission, 246 U.S. 638, 38 S. Ct. 408, 62 L. Ed. 914, and cases therein cited. So far as this jurisdictional requirement is concerned there is no distinction between an administrative body and a district ...