Inland Waterways Corporation v. Young/Dissent G. Roberts
Mr. Justice ROBERTS dissenting.

The court below followed and applied the decisions of this court in Texas & Pacific Railway v. Pottorff, 291 U.S. 245, 54 S.Ct. 416, 78 L.Ed. 777, Marion v. Sneeden, 291 U.S. 262, 54 S.Ct. 421, 78 L.Ed. 787, and Lewis v. Fidelity & Deposit Co., 292 U.S. 559, 54 S.Ct. 848, 850, 78 L.Ed. 1425, 92 A.L.R. 794.

It is true that those cases presented the question whether national banks are authorized to give security for private deposits and those of state agencies. But the basis of each of the decisions was that national banks are without power to pledge assets as security for any deposits, in the absence of express legislative sanction. Paradoxically, the opinion of the court, while recognizing the authority, in the field of banking, of Mr. Justice Brandeis, who announced the opinions in all three cases for a unanimous court, rejects the fundamental principle of the opinions. Whereas in the Lewis case Mr. Justice Brandeis announced in plain terms that, in the absence of express authorization, a national bank has 'no power to make any pledge to secure deposits except the federal deposits specifically provided for by acts of Congress', the opinion of the court spells out such power despite 'the silence of the act.'

In the Texas & Pacific and Marion cases the opinions point out that whenever Congress has intended that security should be taken for deposits of government funds specific authority has been granted.  That what was thus said by Mr. Justice Brandeis was deemed necessary to the decisions and was the deliberate conclusion of the court is evidenced by his statement in Lewis v. Fidelity & Deposit Co., 292 U.S. at page 564, 54 S.Ct. at page 850, 78 L.Ed. 1425, 92 A.L.R. 794.

'In Texas & Pacific Ry. Co. v. Pottorff, 291 U.S. 245, 54 S.Ct. 416, 78 L.Ed. 777, and Marion v. Sneeden, 291 U.S. 262, 54 S.Ct. 421, 78 L.Ed. 787, * * * we held that a national bank had, prior to the Act of June 25, 1930, no power to make any pledge to secure deposits except the federal deposits specifically provided for by acts of Congress.'

Now it is said that these cases incorrectly state the governing principle. That principle is now said to be that Congress cannot have intended to limit the authority of banks to give security in cases where administrative officers in charge of government funds have deemed it appropriate that security should be given. In other words, despite the withholding of any grant of power to institutions whose powers are only those granted,  a power is spelled out.

The attempt to buttress the implication of the power from the fact that federal agencies have heretofore exacted security, and that the Comptroller of the Currency has been of the view that such pledges were not in violation of the Act, is answered by what was said in Marion v. Sneeden, 291 U.S. page 269, 54 S.Ct. page 422, 78 L.Ed. 787: 'comptrollers of the currency knew that this was being done; and they assumed that the banks had the power so to do. But the assumption was erroneous.'

I think that as the Court of Appeals followed the principle rightly applied in the decisions of this court its judgment should be affirmed.

The CHIEF JUSTICE and Mr. Justice McREYNOLDS join in this opinion. 

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