1 Hopk. Ch. 354 | New York Court of Chancery | 1825
on the opening of the cause, stated, that he had looked into the decision of his predecessor, in the case of the attorney general v. the bank of Utica, to the principles of which he should adhere; and that in consideration of the public importance of this question, he had directed the motion to come on upon notice to the adverse party.
now said, that all the principles which are-necessary to be made the foundation of a decision in this case, are decided in the case of the attorney general v. the Utica
In the present case, some facts exist, and some points have been urged, which were supposed to distinguish it from the case cited. An information in the nature of a quo warranto, has been actually filed, and is now depending in the supreme court. In the case of the Utica insurance company, no such information was depending. I do not think this to be material. The question whether the corporation has forfeited its franchise or not, is not yet determined ; and that question can be decided only in the supreme court. This court can not interfere in aid of the supreme court. To do so, would be to prejudge the question which is yet to be determined there.
The attempt now made to support the jurisdiction of this court, is founded principally on tin resemblance of the acts complained of, to the case of a public nuisance. But this resemblance, if it exists at all, is extremely faint, and the analogy between the two cases, is, in my judgment, far fetched and overstrained. The exercise of hanking privileges by the defendants, without authority, though contrary to law, is not a nuisance, within the established sense in which that term is used in the books. It is not necessarily injurious to the public health, convenience or morals. It is therefore unnecessary to decide whether the court would, or would not, interfere, by injunction in the case of a public nuisance. Besides, the carrying on of banking operations, without permission, was not an offence in this state, until the passing of the restraining act. If the defendants have no right, they are merely operating in violation of that act, and can only be punished by the forfeiture, in one course of law, of their corporate franchises, or by prosecution in another, for the specific penalty imposed by the restraining act.
But even if the court had jurisdiction, there is nothing in this case, as presented by the attorney general, to require its
Upon this point, the tenth section of the act of incorporation is also deserving of consideration. It provides, that if at anjr time after the passing of the act, the bank shall refuse to redeem its notes, the president, directors, and company, shall, on pain of forfeiture of their charter, wholly discontinue and close their banking operations “ until such “ time as they shall resume the redemption of their bills.” The suspension of payment was not a forfeiture, and the subsequent discontinuance of the business of the bank, was not a violation of its charter. On the contrary, the discontinuance was a compliance with the provisions of the act of incorporation.
It was also said, that the bank was insolvent, and thatit will be dangerous to the community, to permit it to resume its operations. I am not to understand by this, that the bank is not now able to meet its engagements, because the complaint is, that it is about to resume its business, which can not be done without at the same time paying specie for its notes. I presume, therefore, that by this charge of insolvency, it is only meant to say, that the bank has heretofore been in that condition ; and that it continued to be so while its payments were suspended. In that sense, all the banks of this state were insolvent during the late war, as all of them suspended payment; yet it was never supposed that they had thereby forfeited their charters. But even if it were admitted that the bank is still actually insolvent, that fact would not authorise the interference of this court. Its operations may, in that case, be injurious to the public ; but this court can not interfere to prevent those operations.
Upon the whole, it is very clear, that this court has no jurisdiction to grant the injunction applied for. It might in some cases be useful to possess the general power of superintending the proceedings of our corporate bodies': but that power has not been given to this court, by any statutory provision; nor is there any thing in the English decisions or English history, to warrant its application in the present instance. The motion for an injunction must therefore be denied.