The Bay State Monthly, Volume 3, No. 1. Various

the elimination of an unusually large amount of dead assets under the requirements of the National Bank law, previous to extension of the corporate existence of a bank, the very interesting question is brought to notice, of what is the proper construction of the law in regard to reducing and restoring the surplus fund.

      Does the law forbid the payment of a dividend by a National Bank when the effect of such payment will be to reduce the surplus fund of the bank below an amount equal to one-tenth of its net profits since its organization as a National Bank; and if so, upon what ground? It does, and for the following reasons. The power to declare dividends is granted by section 5199 of the Revised Statutes of the United States in the following language: "The Directors of any association (National Bank) may semi-annually declare a dividend of so much of the net profits of the association as they shall judge expedient; but each association shall, before the declaration of a dividend, carry one-tenth of its net profits of the preceding half year to its surplus fund until the same shall amount to twenty per cent, of its capital stock."

      The question at once arises, what are the net profits from which dividends may be declared, and do they include the surplus fund? It is held that the net profits are the earnings left on hand after charging off expenses, taxes and losses, if any, and carrying to surplus fund the amount required by the law, and that the surplus fund is not to be considered as net profits available for dividends, for, if it were, the Directors of a bank could at any time divide the surplus among the shareholders. It would only be necessary to go through the form of carrying one-tenth of the net profits to surplus, whereupon, if the surplus be net profits available for the purpose of a dividend, the amount so carried can be withdrawn and paid away at once, thereby defeating the obvious purpose of the law in requiring a portion of each six month's earnings to be carried to the surplus fund, that purpose being to provide that a surplus fund equal to twenty per cent, of the bank's capital shall be accumulated.

      The law is to be so construed as to give effect to all its parts, and any construction that does not do so is manifestly unsound. Therefore a construction which would render inoperative the requirement for the accumulation of a surplus fund cannot be correct, and the net profits available for dividends must be determined by the amount of earnings on hand other than the surplus fund when that fund does not exceed a sum equal to one-tenth of the earnings of the bank since its organization.

      Having shown what the net profits available for dividends are, the only other question that can arise is: Can losses and bad debts be charged to the surplus fund and the other earnings used for paying dividends, or must all losses and bad debts be first charged against earnings other than the surplus fund, so far as such earnings will admit of it, and the surplus, or a portion of it, used only when other earnings shall be exhausted?

      This question is virtually answered above, for if the object of the law in requiring the creation of a surplus fund may not be defeated by one means it may not by another; if it may not be defeated by paying away the amounts carried to surplus in dividends, neither may it be by charging losses to the surplus and at the same time using the other earnings for dividends.

      Moreover, section 5204 of the Revised Statutes of the United States provides as follows: "If losses have at any time been sustained by any such association, equal to or exceeding its undivided profits then on hand, no dividend shall be made; and no dividend shall ever be made by any association, while it continues its banking operations, to an amount greater than its net profits then on hand, deducting therefrom its losses and bad debts."

      This language fixes the extent to which dividends may be made at the amount of the "net profits" on hand after deducting therefrom losses and bad debts, and as it has been shown above that the surplus fund cannot be considered "net profits," available for dividends within the meaning of the law, it follows that in order to determine the amount of net earnings available for dividends the losses must first be deducted from the earnings other than surplus.

      It is to be observed also that section 5204 specifies that if losses have at any time been sustained by a bank equal to or exceeding its "undivided profits" on hand no dividends shall be made.

      Now the surplus fund is not undivided profits, except in so far as it is earnings not divided among the shareholders. It is made upon a division of the profits—so much to the stockholders and so much to the surplus fund. If the law had intended that losses might be charged to surplus fund in order to leave the other earnings available for dividends it is to be presumed that care would not have been taken to use the words "undivided profits," in the connection in which they are used, as stated above.

      Furthermore, if losses may be charged to surplus when at the same time the other earnings are used for dividends to shareholders, a bank may go on declaring dividends, and never accumulate any surplus fund whatever if losses be sustained, as they are in the history of nearly every bank. A construction of the law which would render inoperative the requirement for the creation of a surplus cannot be sound; and as the only way to insure that a surplus shall be accumulated and maintained is to charge losses against other earnings as far as may be before trenching upon the surplus; it must be that the law intended that the "undivided profits" which are not in the surplus fund shall first be used to meet losses.

      To a full understanding of the subject it is proper to say that after using all other earnings on hand at the usual time for declaring a dividend to meet losses the whole or any part of the surplus may be used if the losses exceed the amount of the earnings other than surplus, and then at the end of another six months a dividend may be made if the earnings will admit of it, one-tenth of the earnings being first carried to surplus and the re-accumulation of the fund thus begun.

      This is because the law has been complied with by charging the losses against the "undivided profits," as far as they will go, and it is impossible to do more, or require more to be done, for the re-establishment of the state of things that existed prior to losses having been sustained than to do what the law requires shall be done to originally establish that state of things.

      CONCORD, N.H

IMPRESSIONS D'UN FRANÇAIS

Par le Professeur Emile Pingault

      Quand les Français, les Français de France, comme disent leurs cousins canadiens, parlent de l'Amérique ou pensent à cette reine des républiques, ils n'ont en vue que les grandes villes. New-York, Boston, Philadelphie, Chicago, la Nouvelle Orléans etc. … forment seuls, pour eux, l'immense continent découvert par Christophe Colomb.

      Je voudrais essayer de réagir contre l'idée générale qu'on a, que la lumiére, l'intelligence, la prospérité ne se trouvent que dans les grands centres.

      La Providence a voulu que je vinsse établir ma tente dans une ville qui, bien qu'étant la capitale du New-Hampshire, paraît comme un point microscopique auprès des villes que j'ai citées plus haut. Eh bien, sans flatterie aucune, si l'on a pu appeler Boston l'Athène de l'Améríque, je ne vois pas pourquoi on n'appellerait pas Concord un petit Rambouillet, toute proportion gardée.

      Je ne vous dirái pas que Concord est une petite ville située sur la Merrimac, de 14,000 à 15,000 habitants, mais ce que je puis vous dire c'est qu'il faudrait aller bien loin pour trouver une ville plus intelligente et plus éclairée, je dirais même plus patriarcale. Tout le monde s'y connaît et s'estime l'un l'autre. Il y a dans cette ville une émulation pour le bien et pour l'instruction qui ne peut être surpassée.