                               No. 81-508
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1982



HAMELLY INTERNATIONAL, INC., a corp.,
ESTHER V. M. HAIaL, ROBERT HAMEL, L.
THOYAS KELLY, individuals,
                        Flaintiffs and Appellants,



FIRST NATIONAL BANK OF NEVADA, a banking
csorp. , and BANK OF NOVA SCOTIA, a banking       .rite
corp.,
                        Defendants and Respondents.




Appeal from:    District Court of the Fourth Judicial District,
                In and for the County of Missoula, The Honorable
                john S. Henson, Judge presidigg.

Counsel Of Record:
     For Appeilants:
                Mulroney, Delaney   &   Dalby, P , Mars Scott,
                Missoula, Montana
     For Respondents:
                Church, Harris, Johnson & Williams; Milton
                Wordahl, Great Falls, Montana
                Garlington, Lohn & Robinson, Missoula, Montana




                               Submitted on Briefs:       April 22, 1982
                                               Decided: July 14, 1982


Filed:   JUL 15 1982
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.

     The Fourth Judicial District Court of Montana, Missoula
County, issued an order September 16, 1981, dismissing
appellants' complaint against defendant, First National Bank
of Nevada.    The complaint was dismissed for lack of jurisdiction,
pursuant to 12 United States Code S94.     Final judgment,
pursuant to Montana Rule of Civil Procedure 54(b), was also
issued in favor of First National Bank of Nevada.     Appellants
appeal that judgment.     We affirm.
     Hamelly International, Inc. (Hamelly), is engaged in
the business of researching and developing agricultural
products.    Its corporate headquarters is in St. Ignatius,
Lake County, Montana.     The individual plaintiffs/appellants
are directors, officers and stockholders of Hamelly.     Their
principal residences are also St. Ignatius, Montana.
     Defendant/Respondent, First National Bank of Nevada
(Bank), is a Nevada Bank with several branch offices.     The
branch office relevant to this case is located in Reno,
Nevada.   The Bank has no branch offices in Montana, nor
does it have any agent or employee working in Montana.
Defendant Bank of Nova Scotia is not involved in this appeal.
     In anticipation of establishing a manufacturing plant
in Nevada, Hamelly decided in July 1976 to start an account
with a bank in Nevada.    At the advice of non-bank associated
friends, Hamelly's principal executive officer approached
the First National Bank of Nevada, Reno, and requested its
acceptance of Hamellyfs checking and banking business.       Bank

agreed and accounts were established at the Bank's Carson
City, Nevada branch.     That transaction occurred in the State

of Nevada at the appellantsf initiative.
     Hamelly maintained its checking account with Bank from
1976 on into 1979.   In the fall of 1978, Hamelly deposited
in its checking account with Bank a $15,000 check drawn on
the Bank of Nova Scotia.    Bank assured Hamelly the check was
payable in United States dollars.   On November 11, 1978,
without notice, Bank charged the Hamelly account for $2,452.50,
based on the sxisting exchange rate between United States
and Canadian dollars.
     On December 15, 1978, Bank further charged Hamelly's
account for $12,735.64, the then value of the $15,000 check
in United States dollars.   The Bank of Nova Scotia had
returned the check to Bank as the payor's account had insufficient
funds to cover the check.   This charge was made more than
two months after the check was initially deposited.     The
Uniform Commercial Code requires a drawee-bank to reject a
check for insufficient funds within twenty-four hours.    See
section 30-4-210, MCA.
     Hamelly filed a complaint in the Fourth Judicial District
Court, Missoula County, Montana, on December 23, 1980,
seeking general and punitive damages from both banks for the
improper, unlawful charges against Hamelly's account.
     Bank, on January 30, 1981, moved the District Court to
dismiss the complaint for lack of jurisdiction.   Bank based

its motion on 12 United States Code 894.   It reads:
         "Actions and proceedings against any associa-
         tion under this chapter may be had in any dis-
         trict or Territorial court of the United States
         held within the district in which such associa-
         tion may be established, or in any State, county,
         or municipal court in the county or city in which
         said association is located having jurisdiction
         in similar cases."
Bank contended that it was neither established nor located
in Montana; therefore, jurisdiction did not lie in Montana.
     ~ubsequently,Hamelly submitted a set of interrogatories

to ~ a h k
         regarding its business activities in Montana.    A



     I
parti 1 response was filed immediately prior to the April
20, 1 81, hearing on the motion to dismiss.    Affidavits from
both parties were also presented prior to and at the hearing.
On the basis of that evidence, the District Court dismissed
Hamelly's complaint for lack of jurisdiction.
     Hamelly presents three contentions on appeal:
     (1) That, because of conducting substantial business
activities in Montana, Bank is either "located" in Montana
pursuant to 12 United States Code 894 or, Bank waives its
section 94 jurisdictional privilege.
     (2) That the factual evidence submitted prior to and
at the hearing was insufficient evidence on which to base an
order to dismiss a complaint.   Bank should be required to
respond to Hamelly's interrogatories prior to any jurisdictional
ruling.
     (3) That 12 United States Code 894, as applied in the
instant case, unconstitutionally denies Hamelly its equal
protection and due process rights.
    Although written in permissive language, 12 United
States Code 894 is a mandatory statute.    Mercantile National
Bank v. Langdeau (1963), 371 U.S. 555, 562, 83 S.Ct. 520, 524,
9 L.Ed.2d 523, 529.   A national bank is subject to jurisdiction
only where it was established or where it is located.    The
United States Supreme Court, in Citizens and Southern National
Bank v. Bougas (1977), 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d
218, construed the word "located," as used in 12 united
States Code 894, to mean wherever branch offices are found.
Therefore, a national bank can now be sued in the jurisdiction

where it was originally established, as well as in any
jurisdiction containing a branch office.
        First National Bank of Nevada was established in Nevada.
No branch offices are located in Montana.     Therefore, Bank

is not subject to Montana jurisdiction pursuant to 12 United

States Code 894.
        A national bank may waive the jurisdiction privilege
provided by 12 United States Code S94.     In Montana, a waiver
is a voluntary relinquishment of a known right.     Rase v.
Castle Mountain Ranch, Inc. (1981), 631 P.2d 680, 687, 38

St.Rep. 992, 999-1000.     To constitute a waiver, the bank's
conduct must be "manifestly consistent with and indicative
of an intent to relinquish voluntarily a particular right.        . ."
Buffum v. Chase National Bank (7th Cir. 1951), 192 F.2d 58,
61.     No conduct by First National Bank of Nevada relevant to

this case meets that test.
        Bank at no time conducted a business in Montana.     No
agent of Bank went to Montana to solicit business.     Any
contact with Montana by Bank was through the United States

Postal Service or by phone.    The personal representative of
Hamelly went to Nevada and personally initiated contact with

Bank.    The Bank never enlisted the aid of any Montana institution,
law or process while dealing with Hamelly.    There is absolutely
no conduct by Bank to warrant a finding that Bank waived its
12 United States Code 894 jurisdictional privilege.
      We held in Drum v. District Court (1976), 169 Mont.
494, 548 P.2d 1377, that the Chase Manhatten Bank of New
York had failed to waive its jurisdictional privilege not to
be sued in Montana.    Chase personnel had solicited   rum's
business through letters to Montana and had come to Montana
to finalize a loan to Drum.     In that case, the New York
bank's Montana-based activities were substantially greater
than those by Bank in the instant case.    Yet, we held that
no waiver had occurred.
        To hold that Bank's actions constituted a waiver of its

jurisdictional privilege would be similar to granting Montana
jurisdiction on the basis of the "minimal contacts" rule
set forth in International Shoe Co. v. Washington (1945),
326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95.     To do so would
abrogate the National Banking Act's jurisdictional statute
as well as its purpose--to prevent "the untoward interruption

of a national bank's business that might result from compelled
production of bank records for distant litigation."    Citizens
and Southern National Bank v. Bougas, 434 U.S. at 44.
        Hamelly contends that without Bank's responses to their

interrogatories, there is insufficient evidence on which to
dismiss Hamelly's complaint for lack of jurisdiction.       We

disagree.    The affidavits submitted to the District Court by
both parties, together with the testimony presented at the
hearing, is sufficient evidence on which to base a ruling of

lack of jurisdiction.    The Bank is not located in Montana.
The Bank has not waived its 12 United States Code 894 jurisdic-
tional privilege.    Therefore, Montana has no jurisdiction.
There remains no material issue of fact.    Therefore, Bank
need not further respond to Hamelly's interrogatories.

        Finally, Hamelly contends that its constitutional

rights of due process and equal protection have been violated
by the application of 12 United States Code 594 in this
instance.    The United States Supreme Court held in Citizens
and Southern National Bank v. Langdeau, 434 U.S. at 41
that:     "Unquestionably Congress had authority to prescribe

the manner and circumstances under which [national] banks
could sue or be sued in the courts."    As we stated in Drum

v. District Court, 169 Mont. at 503, "[wlhile we are not in
sympathy with this legislation, we are compelled to follow
it."    It is up to Congress, not us, to change this statute.
       The order dismissing Hamelly's complaint as it applies
to First National Bank of Neva




We Concur:




Justices



Mr. Justice John C. Sheehy, specially concurring:
       I agree with the result in this case, because the
First National Bank of Nevada has had none of the contacts
with Montana set forth in Rule 4B(1), Montana Rules of
Civil Procedure making the bank subject to Montana juris-

diction.     I think in a proper case we ought to find that
12 U.S.C.    §   94 does deprive Montana citizens dealing with
out of state banks of due process and equal protection.
This is not the case.
