2 Johns. Ch. 370 | New York Court of Chancery | 1817
An information is filed by the attorney-general, ex officio, against the defendants, charging them with engaging in banking operations, without any authority under the act incorporating them, and in violation of the prohibition in the act to restrain unincorporated banking associations. The information concludes not only with the usual prayer for process of subpoena, but for an injunction to restrain the company from the business incident to incorporated banks.
I thought it not proper to listen to the prayer in this case ex parte, but as Lord Eldon did, in the case of the Attorney-General v. Cleaver, (18 Ves. 217.) I directed notice of the motion to be given.
A motion is now made, in pursuance of notice, for an injunction, according to the prayer of the information. This motion is resisted on the part of the defendants on these two grounds :—•
1. That this is not a case properly within the jurisdiction of this Court, and especially not proper for the application, in the first instance, of the writ of injunction.
2. That the charge in the information, that the defendants have no authority to exercise banking powers, or that *they come within the prohibition of the restraining act, is not well founded.
1 shall confine myself to the consideration of the first point, because, in the view in .which I have considered it, I shall be obliged, on that objection, to dispose of the case.
The application for the injunction is not because it is intended to be merely auxiliary to a proceeding at law. The entire and final remedy is sought in this Court.
[ * 377 ]
Whether the defendants have banking powers given them by the act by which they are incorporated, is, strictly, a legal question. It is equally a question of law, whether they were within the purview of the restraining act. I have always understood it to be a general principle, in respect to the ¡powers of this Court, that when a cause depends, simply and entirely, on the solution of a dry legal question, the proper forum, for the determination of that question is a Court of law. It appears not to admit of doubt, nor do I understand it to be disputed, that if the defendants, as a corporation, have assumed powers not within their charter, the people of this state, by their attorney-general, have a complete and adequate remedy at law, either by the common law writ of quo warranto., or by an information, in the nature of such writ. The'act of the 6th "of February, 1788, entitled, “ an act for rendering the proceedings upon writs of mandamus, and informations in the nature of quo warranto, more speedy and effectual,” declares, that if any persons shall usurp, or unlawfully hold and execute, any office or franchise within this state, it shall be lawful for the attorney-general, with the leave of the Supreme Courtj to exhibit an information in the nature of a cfuo warranto, at the relation of any person, to be prosecuted in the Supreme Court, to try the right to such office or franchise, and the .defendants may come in and plead. If found guilty of a usurpation, or unlawfully holding and executing any such office or franchise, the Supreme Court may give judgment of ouster, *and fine such persons for usurping or unlawfully holding and executing any such office or franchise.
Prosecutions at common law, or under the statute of 9 Ann, (of which this act is a copy,) have been very frequent in the K. B. against persons for assuming powers not within their charters of incorporation. Mr. Kyd, in his Treatise on Corporations, (vol. 2. 395—446.) has recollected numerous precedents of prosecutions, in this way, in the K. B., and it appears to be the established course. -
The right of banking was, formerly, a common law right, belonging to individuals, and to be exercised at their pleasure.
[ * 378 ]
The quo warranto at common law was a criminal proceeding; and in addition to the judgment of seizure, or of ouster, there was judgment that the defendants be taken to make fine to the king for the usurpation. The information in the nature of a quo warranto, under the statute, is, also, strictly a criminal proceeding, being for the usurpation of a state prerogative; and the statute authorizes a fine to be imposed, as well as to oust the party from his assumed franchise. It was held to be so far a criminal proceeding in the cases of Rex v. Bennett, (1 Str. 101.) and of The King v. Jones, (8 Mod. 201.) that the K. B. did not deem itself authorized even to award a new trial. But the fine not being of late years exacted, or being nominal only, it is now so far considered as a mere civil proceeding, that a new trial can be granted. (King v. Francis *2 Term Rep. 484.) But it will readily be perceived, that this power is not, of itself, a decisive test whether a proceeding be properly of a civil or criminal nature ; for the power of awarding new-trials is now exercised at law, in all cases of misdemeanors. (6 Term, Rep. 638.)
The restraining act itself considers the business of banking, without legislative authority, as an offence, for which the party offending is subject to a penalty. It is, no doubt, a contempt of the statute; and if a particular penalty had not been imposed, or if that penalty had not been in the same prohibitory clause, but had been in a separate, substantive section, then it seems to be admitted, (Rex v. Wright, 1 Burr. 543. Rex v. Robinson, 2 Burr. 799. King v. Harris, 4 Term Rep. 202.) that the party might have been punished by indictment, as for a misdemeanor.
The charge contained in the information savors, then, so much of a criminal offence, that it would require a clear and settled practice, to justify the interference of this Court, when that interference is not called for, in aid of a prosecution at law. The charge of an usurpation of a franchise, has so frequently occurred, and the remedy, by injunction, is so convenient and summary, that the jurisdiction of this Court would have been placed beyond all possibility of doubt, and
If a charge be of a_criminal nature, or an offence against thCjuáblie,-anff~doesuin.t^AuM^^eiijtrmeB-t-ofjnxtp.ertv. it ought not to be brought within the direct jurisdiction oí this_jJ2Iri, which was intended to deal only in' matters of civil right, resting in equity, or where the remedy at law was not sufficiently adequate.^ Nor ought the process oí *injunction to be applied, but with the utmost caution. It is the strong arm of the Court; and to render its operation benign and useful, it must be exercised with great discretion, and when necessity requires it. Assuming the charges in the information to be true, it does not appear to me that the banking power, in this case, produces such imminent and great mischief to the community, as to call for this sum. mary remedy. The English Court of Chancery rarely uses t^s process, except where the right is first established at law, or the exigency of the case renders it indispensable. Thus, in Brown's case, in 2 Vesey, 414. a motion was made for an injunction to stay the use of a market, and Lord Hardwicke said, it was a most extraordinary attempt, and that the plaintiff had several remedies which he might use. He said it would cause great confusion, to bring into contempt, upon the injunction, all persons who might use the market; and that if the Court ought to interpose at all, it would be after the title was established at law. So he observed in another case, (Amb. 209. Anon.) that the Court granted an injunction to stay the working of a colliery with great reluctance, and will not do it, except where there is a breach of an express covenant, or an uncontroverted mischief. In a late case, before Lord Eldon (Attorney-General v. Nichol, 16 Vesey, 338.) on an information filed to restrain the defendant from obstructing the ancient lights of a hospital, he stated that the foundation of this jurisdiction, by injunction, was that head of mischief, or those mischievous consequences, which required a power to prevent as well as to remedy, and that there might be nuisances which would support an action, but which would not support an injunction.
[ * 380 ]
If the defendants are carrying on banking operations, contral7 to law> they ought, undoubtedly, to be restrained; but I cannot be of opinion that the operation is such a *mischief or public nuisance, as to require the immediate and extraordinary process of this Court to abate it. I know
[ * 381 ]
There are no particular individuals affected or disturbed in the enjoyment of their private rights, by the banking power assumed in this case. There is no such allegation made. The case, then, has no analogy to that of Baines v. Baker, (Amb. 158. 3 Atk. 750.) on which some reliance has been placed, because Lord Hardwicke intimated, that the attorney-general, in the case of a public' nuisance, could, in his discretion, file an information. In that case, a bill was filed by one individual against another, and a motion was made for an injunction to stay the building of a house to inoculate for the small-pox. The motion was founded as well on a special covenant in the lease, as on the annoyance of such an establishment to the neighborhood, and to the plaintiff’s property. The chancellor said, that if that house was a nuisance at all, it was a public nuisance, because it diffused terror, and thereby affected many people ; and then he said, if it was a public nuisance, it would be for the consideration of the attorney general, whether he would file an information. And where was it to be filed ? Lord Hardwicke did not expressly say in what Court, though he referred to a case before Lord Ch. jKing, who had recommended an information for a public nuisance, in stopping a way, to be filed in the K. B. The inference then is, perhaps, as fair, that the chancellor meant that the information was to be filed in the K. B. as in this Court. Perhaps that is the stronger inference ; *but be that as it may, can it be supposed that, on such a dubious dictum, uttered sixty years ago, I am to assume so great a power as a jurisdiction over public nuisances, which are, in truth, public misdemeanors? It is sufficient to state such a proposition, and there to leave it.
There is, however, one case on the equity side of the Court of Exchequer, which merits more attention. It is that of the Attorney-General v. Richards, (2 Anst. 603. 35 Geo. III.) in which an information was filed by the attorney-general for erecting docks and other buildings, to the injury of Portsmouth harbor ; and the prayer was, that the defendant might be restrained from any other erections, and that those made might be abated. The defendant pleaded title. The injury charged was a public nuisance of a particular kind, termed purpresture, which means an encroach
This case was elaborately argued. It was contended, on the part of the king, that, in the case of such a nuisance, it was proper to proceed by information, which might be done in equity, as well as at law, and the nuisance might be decreed to be abated. The counsel cited the case of the Attorney-General v. Philpot, in the exchequer, the 8 Car. 1., which was an information for encroaching on the soil of the crown, on the river Thames, and obstructing navigation. ■The Court, in the case cited, declared, that purprestures on navigable rivers ought to be abated, and directed a commission to inquire whether the fact complained of was a purpresture, and it being returned that it was, the encroachment was abated. The cases of the City of Bristol v. Morgan, and of the Town of Newcastle v. Johnson, were also cited from Lord Hale’s treatise De Portibus Marvis, (p. 81.) in which bills to abate purprestures on navigable waters had been sustained in the exchequer.
[ * 382 ]
*The counsel on the part of the defendant contended, that as to the question of nuisance, it was a matter completely foreign to the jurisdiction of a Court of equity. It was a breach of the general police of the kingdom, and as such, was considered as a crime. That a Court of equity could not hold cognizance of any criminal matter. That it was never attempted to prosecute a suit in equity, to remedy any other public mischiefs, such as to prohibit rope-dancing, plays, &c., nor to abate a nuisance or purpresture on the highway. That those things were every day prosecuted in the ordinary criminal Courts. That questions of nuisance were particularly improper to be discussed in equity, because the remedy at law was complete. That the cases cited, in the time of Charles I., were when the right to trial by jury was not so firmly established as it was afterwards.
The Court of Exchequer held, that the crown, by its subjects, had possession of the place in question, and that the defendant had not showed title to the' soil, and that under the authorities of the cases cited, in the time of Charles 1., and the sanction given to them by Lord Hale, (see his treatise, sup. p. 87, 88.) in the case where a purpresture and nuisance had been committed on the king’s soil, he might have a decree in that Court to abate it; and such a decree was accordingly awarded.
But giving to this case the utmost weight, there is very little analogy between it and the one now before me. Here is no encroachment on the property of the state,, nor is the mischief of a similar nature. The objection to the exercise of the banking power in this case is, that it is unlawful, and not warranted by law. It would be quite extravagant to hold it to be a public nuisance, or that kind of annoyance and mischief which a nuisance implies. The information is founded on the charge, that the banking power exercised by the defendants is not given by their charter, and that it is an offence against the statute. There is no case in which an information has been sustained in this Court, on such grounds. In the case of The Attorney- General v. Cleaver, (18 Vesey, 211.) an information was filed in chancery to restrain a public nuisance, and the case of Baines v. Baker, and the case in the exchequer, were cited in support of the jurisdiction of the Court. But the lord chancellor doubted as to the jurisdiction, and did not recollect any case, in his experience, except that of The Mayor and Corporation of London v. Bolt, (5 Vesey, 129.) which was a private suit by bill; and he thought that the interposition of this Court was, at least, very confined and rare, and that the fact of the nuisance ought first to be ascertained by a jury.
[ * 384 ]
But be this point (and which is still left open by these cases) determined either way, there is no charge of a breach of trust as the ground of this information. It does not appear, in the present case, that any more than the surplus funds of the company are appropriated to banking, or that the moneys so applied are not beneficially employed for the interest of the company. It is probable the members of the corporation deem it the best employment of their surplus capital. The charge of a breach of trust ought to come from, or on behalf of, the cestui que trusts, or stockholders of the company. If they are satisfied, no other person is entitled to complain. If they approve of the act of their trustees in instituting banking operations, there is no ground for any allegation of a breach of trust. That charge is not the foundation of the present suit. The information is not at the instance, or upon the relation of, the stockholders, and, consequently, these authorities have no application
But there is still another ground, with another class of cases, urged in support of the jurisdiction of this Court, and this is the power of visitation, and superintending the conduct of corporations, and which is said to be vested in the Court of Chancery.
[ * 386 ]
*It will be necessary to examine some of the cases, in order to define the nature and extent of this power.
It was laid down by Sir Wm. Blackstone, in his Commontañes, (vol. 1. 481.) as a settled elementary proposition, that the king was, by law, the visitor of all civil corporations, and that the place where he exercised that jurisdiction was in the Court of K. B., where, and where only, all misbehaviors of civil corporations were inquired into and redressed. I do not cite this respectable opinion as equivalent to á judicial authority. It is pretty good evidence, however, of the received understanding of the law at that day, though the point has been since much discussed, whether the visitatorial power over civil corporations devolved personally on the king, or belonged to the K. B. by virtue of its general superintending authority.
In the case of Rex v. Bishop of Chester, (2 Str. 797.) the K. B. held, that where there was no other visitatorial power in being, it resulted to the K. B., and they issued a mandamus to the bishop, as warden of Manchester college, to admit a chaplain. This case was, afterwards, cited by Lord Hardwicke, in 1 Vesey, 471, as good law; and it was also relied on by Lord Mansfield, in the case of Rex v. Gregory, (12 Geo. III. 4 Term Rep. 240. note.) In this last case there was a rule to show cause why an information, in nature of a quo warranto, should not be filed against the defendant, to show by what authority he claimed to be fellow of Trinity Hall, in Cambridge. Lord Mansfield observed, that “ as to the first objection to this mode of application, that the K. B. could not interfere, because if there be no visitor, the power of visitation escheated to the king, in chancery, as a charity, he answered, that the foundation there was not a charity, and that the power of visitation did not go to the king as visitor. That it was a corporation, and as such, the right devolved to the king to be exercised there in trie K. B.”
[ * 387 ]
*So the law stood on this point, until the case of The King v. Master and Fellows of St. Catharine’s Hall, Cambridge, (4 Term Rep. 233.) came before the K. B. in 1791.
Erskine and Law showed cause, and contended, that the right of visitation, in default of heirs of the founder, devolved on the king, who visited, by his chancellor, or by special commissioners under the great seal; which latter mode was adopted in Eden v. Foster, in 2 P. Wms. 315. They further contended, that where the king was founder of an eleemosynary or charitable corporation, or where a private person endows, and appoints no visitor, the king visits, by his chancellor. That the power of visitation was personal in its nature, to be exercised by the founder, or by the king, in his personal capacity. That the very foundation of the visitatorial power was a general discretion, which was repugnant to the constitution of the K. B., which was governed by established rules of law.
Bearcroft and Le Blanc, on the other side, held, that where the king was visitor, in right of a royal foundation, the power was to be exercised through the medium of his chancellor, and not by the K. B. That where there was no visitor the remedy was in the K. B., and that it arose from the general superintending authority which that Court exercised over all corporations. That there was no instance of interference by the Court of Chancery where there was no visitor.
[ * 388 ]
The Court of K. B. decided, that in the case of a private eleemosynary corporation, where there was no special visitor, the right of visitation devolved upon the king, to be exercised by his chancellor, under the great seal, and they refused to interfere. Lord Kenyon, in giving the opinion of the Court, said, that corporate bodies,-which *respected the public police of the country, and the administration of justice, were better regulated under the superintendence of the K. B., but that it was otherwise with eleemosynary foundations in general.
[ * 390 ]
I have thus examined every source from which the *power, now claimed for this Court, was to be deduced; and I cannot find any sufficient warrant for this proceeding. The exercise of the banking power cannot be brought under the head of a public nuisance. It has none of the characteristic marks of a mischief which calls for such a remedy as injunction. It may be endured without excessive public annoyance, until it can be abated by the regular process of the common law. Even if it was a nuisance, I should not deem myself sufficiently authorized to abate it, on the strength of one solitary modern case in the exchequer, by no means analogous. It is well understood, that public nuisances are public offences, over which the Courts of law have had a uniform and undisputed cognizance. Nor does the case, as charged, amount to a breach of trust, of which I am to take notice. There is no complaint, on the part of the stockholders, of misconduct, nor is the information founded on any thing of that kind. If there had been a prosecution instituted for a breach of trust, it would have been by bill, and against individuals by name, calling them to account for the use and benefit of the company at large. This information proceeds against the whole corporation, in its corporate capacity, for a mere usurpation of power belonging to the government alone, or to its special grantees. Nor can the jurisdiction of this Court be deduced from the visitatorial power, which the chancellor, in England, exercises, as keeper of the great seal, and as the king’s personal representative over charitable institutions.
The plain state of the case, then, is, that an information is here filed by the attorney-general, to redress and restrain, by injunction, the usurpation of a franchise, which, if true, amounts to a breach of law, and of public policy. I may venture to say, that such a prosecution is without precedent in this Court, but it is supported by a thousand precedents in the Courts of law. How, then, can I hesitate on the question of jurisdiction ?
[ * 391 ]
*The whole question, upon the merits, is one of law, and not of equity. The charge is too much of the nature of a misdemeanor to belong to this Court. The process of injunction is too peremptory and powerful in its effects to be used in such a case as this, without the clearest sanction. I shall better consult the stability and utility of the powers
Without, therefore, giving any opinion on the question, whether the Utica, Insurance Company are entitled to exercise banking powers, I am of opinion, that I have no jurisdiction in the case before me, and that the motion for the injunction must be denied.
Motion denied.
