2. Whether you may direct the comptroller to obtain other data and thereafter to furnish it to the committee?

1. The Comptroller of the Currency is the chief of the bureau of the Treasury Department charged with the execution of laws relating to the issue and regulation of the national currency secured by United States bonds, and he performs his duties "under the general direction of the Secretary of the Treasury" (sec, 324, R. S.).

The statutes relating to the national banks give him full visitorial powers to enable him to see that the national banks faithfully observe the laws and avoid insolvency.

No association may commence business until its organization certificate has been submitted to the comptroller and he has certified that it has fully complied with all the provisions of law to entitle it to engage in business (secs, 5168, 5169). Where the association desires to extend its life beyond the original period, he must cause a special examination to be made to determine that its affairs are in a satisfactory condition (act July 12, 1882, sec. 3, 22 Stat. 163).

After commencing business each association must at least five times a year report to the comptroller, upon forms prescribed by him, its condition in great detail, and the comptroller may at any time call for a special report from any bank (sec. 5211).

The comptroller, with the approval of the Secretary of the Treasury

"shall, as often as shall be deemed necessary or proper, appoint a suitable person or persons to make an examination of the affairs of every banking association, who shall have power to make a thorough examination into all the affairs of the association, and in doing so to examine any of the officers and agents thereof on oath, and shall make a full and detailed report of the condition of the association to the comptroller. (Sec. 5240, as amended Feb. 19, 1875, 18 Stat. 329.)"

In order that he may adequately enforce the provisions of law imposing restrictions on the national banks the Comptroller is vested with power to put any national bank in the hands of a receiver for the purpose of wind

ing up its affairs-first, for not keeping its capital stock above the minimum provided by law (sec. 5141); second, for not keeping good its surplus (sec. 5151); third, for not keeping its reserve up to the prescribed minimum (sec. 5191); fourth, for holding its own stock for more than six months (sec. 5201); fifth, for failure to pay up its capital stock or for failure to make good its impairment (sec. 5205); sixth, for improperly certifying a check (sec. 5208); seventh, for nonpayment of its circulating notes (sec. 5234). By section 5239, Revised Statutes, the Comptroller is charged with the duty of causing the dissolution of any national banking association through the institution of a suit to forfeit its charter whenever its board of directors knowingly violate or permit any of its officers or agents to violate any of the provisions of the national banking laws.

Finally, by section 333 of the Revised Statutes, as amended February 18, 1875 (18 Stat. 317), the Comptroller is directed to make reports to Congress at the commencement of each session exhibiting

"First. A summary of the state and condition of every association from which reports have been received the preceding year, *** with an abstract of the whole amount of banking capital returned by them, of the whole amount of their debts and liabilities, the amount of circulating notes outstanding, and the total amount of means and resources * * * and such other information in relation to such associations as, in his judgment, may be useful.

"Second. A statement of the associations whose business has been closed during the year, with the amount of their circulation redeemed and the amount outstanding.

"Third. Any amendment to the laws relating to banking by which the system may be improved; and the security of its holders of its notes and other creditors may be increased."

Also a statement of the business of savings banks organized under the laws of the several States and Territories, and the names and compensation of the clerks employed by him and the expenses of his bureau during the year.

Thus the banking laws clothe the Comptroller with authority to examine into the affairs of national banks for three main purposes: First, to ascertain the financial condition and soundness of management of national banks; second, to determine whether or not such banks are operating in conformity with the banking laws; third, to enable him to recommend amendments to the existing law.

Nowhere in the law is there any express provision that the information thus acquired by the Comptroller shall be confidential. While, if in your opinion, the interests of the Government require that this information shall be so treated, you have the right to refuse to divulge it (Boske v. Comingore, 177 U. S. 459, 469), yet, I am clearly of the view that if, in your opinion, it is proper to give this information to the House committee you have the lawful power to do so.

2. There remains the question whether you have the power to direct the Comptroller to collect the information described in Mr. Untermyer's letter, which is not already in his possession.

At the outset it should be remarked that the paragraph of the House resolution undertaking to direct the Comptroller, the Secretary of the Treasury, and other executive officers to comply with all directions of the committee for assistance in its labors, has not legal effect. (6 Op. 680.) The duties of the Comptroller are imposed by law and can not be lessened or increased by resolution of one House. This question must be answered, therefore, from the statutes themselves without regard to the resolution. It is not suggested that the Comptroller needs the information in question to enable him to perform a duty devolved upon him by the statutes pertaining to his office.. Mr. Untermyer states that the committee of the House desires it to enable it to determine whether or not further legislation is necessary.

By section 5211, Revised Statutes, the Comptroller is expressly given—

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power to call for special reports from any particular association whenever in his judgment the same are necessary in order to a full and complete knowledge of its condition."

One view of this section is that it limits the power of the Comptroller to call for reports concerning the financial condition of a particular association only, and that it is not broad enough to empower him to ask reports regarding general conditions which may have a bearing merely upon the expediency of amendments to the existing law. I think that too narrow a construction of the section, because section 333, Revised Statutes (above quoted), requires the Comptroller to make an annual report to Congress at the commencement of its session, showing, among other things, any amendment to the laws relating to banking by which the system may be improved and the security of the holders of its notes and other creditors may be increased,"

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and the power given in section 5211 to call for special reports is, in my opinion, broad enough to authorize him to call for any reports which may be necessary to enable him to determine how, in his opinion, the banking system may be improved by new legislation and what legislation he should recommend to Congress for that purpose.

This view is strengthened by the provisions of section 5240, which authorize the comptroller, with the approval of the Secretary of the Treasury,

66 as often as shall be deemed necessary cr proper,"

to appoint suitable persons to make an examination of the affairs of every banking association, such examiners to have power

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to make a thorough examination into all the affairs of the association, and in doing so to examine any of the officers and agents thereof on oath, and shall make a full and detailed report of the condition of the association to the comptroller."

But clearly the comptroller can not exercise such power merely for the purpose of procuring information for a committee of one of the Houses of Congress on which that committee may base its conclusion as to what amendatory legislation is necessary or desirable. If the committee is without adequate powers to enable it to pursue the inquiry committed to it by the House (as to which I express no opinion), it should seek additional power by way of amendment to the law or by joint resolution of both Houses of 89760°-VOL 29-13-36

Congress. It can not properly expect the Comptroller of the Currency, by a strained construction of the statutes, to exercise a power given to him for a definite purpose to procure information for another purpose, thus furnishing indirectly to the committee information which the law does not authorize it to get directly.

Since the comptroller exercises his functions under the general direction of the Secretary of the Treasury, and therefore of yourself, it follows that if either you or the Secretary think that the comptroller should have before him in the performance of his duties any of the information mentioned in Mr. Untermyer's letter, you have the lawful power of directing him to acquire it.

It is true that while the comptroller is performing quasijudicial functions his discretion can not be controlled by you (Butterworth v. Hoe, 112 U. S. 50), yet this is not so of all his duties, otherwise the provision in the statute that he perform his duties under the general direction of the Secretary of the Treasury would amount to nothing. Certainly, broad general lines of policy may be laid down by you to be followed by the comptroller; and you may direct him to make inquiries along certain lines and to consider the data thus acquired in determining whether individual banks are in sound condition and are obeying the existing law, and whether amendments thereto should be recommended.

If, therefore, you believe that any information outlined by Mr. Untermyer should be obtained and considered by the comptroller in the performance of his duties, in my opinion, you may direct him to procure it; and after it has been obtained for this legitimate purpose you may, if you deem proper, direct him to furnish it to the House committee. If, however, neither you nor the comptroller believe that such information is useful or necessary to him in the performance of his duties, you could not properly direct him to procure it.

I express no opinion as to the propriety of furnishing to the House committee any information gathered by the comptroller. I am informed that it has been the custom of his office to consider a great part of such information