At the recent call made by the Comptroller of the Currency on national banking associations for a report of condition, the associations were asked to report on the form prescribed the aggregate amount of salaries paid to officers and employees. You request my opinion as to whether the Comptroller can compel the reporting banks to publish this information.
This call was made under the provisions of Section 5211 Revised Statutes of the United States, which required not less than five reports to be made each year by national banking associations to the Comptroller of the Currency according to the form which may be prescribed by him. "Each such report shall exhibit, in detail and under appropriate heads, the resources and liabilities of the association at the close of business on any past day by him specified; and shall be transmitted to the Comptroller within five days after the receipt of a request or requisition therefor from him, and in the same form in which it is made to the Comptroller shall he published in a newspaper * * * at the expense of the association; * * *
Section 5213 imposes a penalty on the association for failure to make and transmit such reports to the office of the Comptroller within the time prescribed but no penalty is provided in said section for failure to publish the report.
It is contended that the aggregate sum paid officers and employees of a bank for salaries is not a part of the bank's resources or liabilities and therefore the Comptroller has no authority in law to call for this information in a report of condition which requires publication and that if such information can be at all required it must be obtained by special reports which are also provided for by Section 5211 and which reports are not required to be published.
I am not satisfied that this is a correct interpretation of Section 5211. It might very reasonably be contended that salaries paid or contracted for which are excessive or out of proportion to the business of the bank or to its earning capacity would essentially affect its resources, but in the absence of a judicial determination I regard the question involved in doubt and do not consider it necessary to be determined to comply with your request.
If the banks are satisfied that such information cannot legally be required of them in their reports of condition when called for by the Comptroller they may decline to give the information and have the question determined by the courts should the penal provisions of the statute be attempted to be enforced against them.
If, however, the banks give the information as requested on the form prescribed and transmit the reports to the Comptroller I am of opinion that the reports must be published as made and transmitted.
The language of the statute is explicit requiring the report to be "transmitted to the Comptroller within five days after the receipt of a request or requisition therefor from him and in the form in which it is made to the Comptroller shall be published in a newspaper * * *"
Section 5213 provides no penalty for failure on the part of the bank to publish the report as made, nor does the statute in terms require the bank to cause its publication. It only provides that it shall be published "at the expense of the association" and while it has been the practice for the banks to make the publication there appears no reason why the publication cannot be made by the Comptroller at the expense of the association.
While it is true that the statute does not in terms require the banks to cause the publication of their statements to be made, it is unreasonable to suppose that it intended otherwise, as it would be wholly impracticable for the Comptroller to undertake to publish the statement of each bank at the expense of the bank in the local newspaper published in the city or town of the location of the bank as required by law.
One important fact in the requirement of the Comptroller seems to have been overlooked by those who contended that the compensation of officers of the banks was not a resource or liability, and therefore the Comptroller was without authority under Section 5211 of the Revised Statutes to require this item to be shown in a report of condition.
The report blank prescribed by the Comptroller for this particular call did not include the compensation of officers with the items to be shown as a resource or liability, but made a special item of this matter below the total footings, so that the banks could have furnished the information in their reports and published their resources and liabilities in the same form in which they were made to the Comptroller without showing this item.
There really was no necessity, however, for the Comptroller to have called for this information for the use of the office, as the salaries of officers and employees of the banks are shown in the reports of national bank examiners at the time of each examination of a bank. It would seem, therefore, that as this information was already in the possession of the Comptroller's office the only purpose in calling for it in the reports of condition must have been to secure its publication.
While there was some doubt in the mind of the acting comptroller as to the authority of the comptroller to require the banks to show in their reports of condition the amount of salaries paid their officers he did not deem it advisable to formally rescind the order, especially in view of the fact that at this stage of the situation the nomination of a successor to Comptroller Williams had been sent to the United States Senate, which it was expected would be confirmed in a day or two.
In the meantime before the new Comptroller's confirmation and qualification nearly all of the reports of condition of the banks and certificates of publication had been received at the Comptroller's office and the disturbing effect of the Comptroller's requirement had subsided. It was therefore concluded to let the matter rest and accept the reports and published statements as rendered.
DANIEL R. CRISSINGER Comptroller of the Currency, appointed 1921.