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of gasoline a day in Arkansas, upon which the tax of 6.5 cents per gallon used would amount to $15.45 a day.

Appellee's busses travel four different routes, two from Memphis through Arkansas to Missouri, and two from Memphis to cities in Arkansas. On the trips to Missouri the tax now exacted by Arkansas is greater than would be a tax on the gasoline actually used in Arkansas. But on the trips from Memphis into Arkansas and back, the tax exacted, because of the 20-gallon exemption, is less than would be a tax on the gasoline used in Arkansas.

As appellant points out in his brief, when all the routes are taken together, the daily tax which Arkansas would collect if appellee carried only enough gasoline to complete each trip would only amount to $13.00—actually $2.45 less than a tax on gasoline consumed in Arkansas.

This amount_$2.45_equals the present tax on 37 gallons of gasoline. Appellee's busses enter Arkansas 13 times each day. It follows that appellee may carry a reserve of almost three gallons on each trip and still pay no more than the tax which, as the majority assumes, Arkansas could constitutionally impose on the gasoline actually consumed on her own roads. There is nothing in the record to show that a greater reserve is necessary. An interstate carrier has no absolute right to fix the size and character of its equipment used in interstate commerce, in total disregard of the necessities of the enterprise and the requirements of States through which the carrier operates. Exactions by such States may well be designed to operate upon the quantity of gasoline reserves for considerations analogous to those which have called into being state regulations of the size, weight and number of the vehicles themselves. And a state tax which may induce a reduction in the amount of reserve previously

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* South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177.

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carried is no more to be condemned on that sole ground alone than is a state law actually prohibiting vehicles above a certain size or weight. That this reduction may be attributable to a tax rather than to a regulatory measure expressly passed in the interests of public safety should not be controlling. Particularly is this so when the proceeds of the tax are utilized exclusively for highway purposes and the tax itself is directed to gasoline used, just as other equipment is used, in the course of interstate business and involves no manifestation of hostility to—or levy upon-gasoline carried as a commodity in interstate commerce. It is presumably safe to rely on appellee's self-interest to work out any schedules of refueling at its various storage facilities necessitated by changes in reserves carried. We cannot believe that appellee is able to attack the constitutionality of this tax on the ground that as to others it might operate differently and serve to burden the use of gasoline in other States. It is important to bear in mind that we are not passing upon a statute as such but upon the incidence of this statute in the single concrete situation presented by a specific objector on this specific record. The very fact that such niceties of calculation have to be indulged in as the concurring opinion finds necessary in order to establish the mischief of the statute, makes manifest the “real doubt” of any showing of unconstitutionality and indicates that a burden of calculation and speculation is assumed in the exercise of the judicial function which should be left to the legislatures of the States and the Congress.

Judicial control of national commerce-unlike legislative regulations—must from inherent limitations of the judi

'Bourjois, Inc. v. Chapman, 301 U.S. 183, 190; Monamotor Oil Co. v. Johnson, 292 U. S. 86, 96; see opinion of Mr. Justice Brandeis, Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 347.

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cial process treat the subject by the hit-and-miss method of deciding single local controversies upon evidence and information limited by the narrow rules of litigation. Spasmodic and unrelated instances of litigation cannot afford an adequate basis for the creation of integrated national rules which alone can afford that full protection for interstate commerce intended by the Constitution. We would, therefore, leave the questions raised by the Arkansas tax for consideration of Congress in a nation-wide survey of the constantly increasing barriers to trade among the States. Unconfined by “the narrow scope of judicial proceedings” | Congress alone can, in the exercise of its plenary constitutional control over interstate commerce, not only consider whether such a tax as now under scrutiny is consistent with the best interests of our national economy, but can also on the basis of full exploration of the many aspects of a complicated problem devise a national policy fair alike to the States and our Union. Diverse and interacting state laws may well have created avoidable hardships. See, Comparative Charts of State Statutes illustrating Barriers to Trade between States, Works Progress Administration, May, 1939; Proceedings, The National Conference on Interstate Trade Barriers, The Council of State Governments, 1939. But the remedy, if any is called for, we think is within the ample reach of Congress.

* See Mr. Chief Justice Taney, dissenting, Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518, 592.

Statement of the Case.

309 U.S.




No. 246. Argued January 10, 1940.-Decided February 12, 1940.

1. A receiver of a national bank, representing creditors, may compel

payment of a promissory note knowingly given to the bank by one of its directors as a substitute for shares of its own stock illegally purchased and retained by the bank, the note having been delivered upon the understanding that it was not to be paid and that the bank was to retain its interest in the stock. P. 196.

The purpose of the National Bank Act in prohibiting the purchase by a bank of its own stock is to prevent impairment of its capital resources and consequent injury to creditors in the event of insolvency. The provisions requiring periodic examinations and reports are designed to insure prompt discovery of violations of the Act and prompt remedial action by the Comptroller. These purposes would be defeated and the command of the statute nullified if a director or officer, or any other by his connivance, could place in the bank's portfolio his obligation good on its face, as a substitute for its stock illegally acquired, and if he remained free to set up that the obligation was, in effect, fictitious, intended only to aid

in the accomplishment of the injury at which the statute is aimed. 2. It is immaterial that the bank's officers were participants in the

illegal transaction, and that the receiver has not shown that creditors were deceived or specifically injured as the result of the illegal contract. Rankin v. City National Bank, 208 U. S. 541 and Deitrick v. Standard Surety Co., 303 U. S. 471, distinguished.

P. 198. 3. Judicial determination of the legal consequences of acts condemned

by the National Bank Act involves decision of a federal question.

P. 200. 103 F. 2d 83, reversed.

CERTIORARI, 308 U. S. 535, to review a judgment which reversed in part a judgment recovered in a suit by the Receiver to collect an assessment upon shares of an insolvent national bank, and to collect a promissory note found among its assets.

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Mr. George P. Barse, with whom Messrs. Brenton K. Fisk, Andrew J. Aldridge, James Louis Robertson, and David B. Hexter were on the brief, for petitioner.

Mr. David Stoneman, with whom Mr. Thomas H. Mahoney was on the brief, for respondent.

The receiver may not recover from the maker of an accommodation note given to the bank, at its request, and taken by the bank for the purpose of concealing its ownership of shares of its own stock previously acquired by it inviolation of law. Rankin v. City National Bank, 208 U. S. 541; Deitrick v. Standard Surety & Casualty Co., 303 U. S. 471; Yates Center National Bank v. Lauber, 240 F. 237; Cutler v. Fry, 240 F. 238; Yates Center National Bank v. Schaede, 240 F. 240; Andresen v. Kaercher, 38 F. 2d 462. Liability of the maker can not be predicated merely on the fact that he was a director of the bank.

Federal law governs the validity and enforcibility of the note in suit. Auten v. U. S. National Bank, 174 U. S. 125; Jennings v. U. S. Fidelity & Guaranty Co., 294 U. S. 216.

The decision below is also in accord with the Massachusetts decisions. Salem Trust Co. v. Deery, 289 Mass. 431; Great Barrington Savings Bank v. Day, 288 Mass. 181; Quincy Trust Co. v. Woodbury, 13 N. E. 2d 377. Distinguishing Prudential Trust Co. v. Moore, 245 Mass. 311, and International Trust Co. v. Wattendorf, 256 Mass. 323.

MR. JUSTICE STONE delivered the opinion of the Court.

The question to be decided is whether a receiver of a national bank may compel payment of a promissory note knowingly given to the bank by one of its directors as a substitute, among its assets, for shares of its own stock

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