Commercial Bank of Natchez v. Chambers

16 Miss. 9 | Miss. Ct. App. | 1847

Lead Opinion

Mr. Chief Justice Sharkey,

delivered the opinion of the court.

The several cases which have been argued, and submitted together as involving the construction and validity of the act of the legislature passed in 1846, entitled “ an act to amend an act entitled an act to prescribe the mode of proceeding against incorporated banks for a violation-of their corporate franchises, and against persons pretending to exercise corporate privileges under acts of incorporation, and for other purposes,” passed July, 1843, so far as it was designed to operate on the assets and property of banks whose charters had been declared forfeited before the passage of the act, have been carefully examined, in view of the objection, that they were not properly before this Court. We certainly do not desire to decide any case which is not properly before us, but we have no wish to evade a decision on the merits of any case that is regularly here. And although it was suggested, that in view of the importance of the question, it ought to receive further discussion on being directly presented to the court, yet we apprehend that but little could be added to the lengthy and able discussions which have been bestowed upon the question by the counsel on both sides.

All of the cases were not properly brought up, but some of them are regularly in this court, and do undoubtedly present the whole question, and from their present attitude, require absolutely that it should be decided. To this class belongs the case of the Commercial Bank of Natchez v. Chambers et al. as will be manifest by stating its condition.

The Commercial Bank brought suit on a promissory note made by Chambers. At the October term, 1842, of the circuit court of Scott county, judgment was rendered in favor of the defendant; the bank sued out a writ of error returnable to the January term, 1844, of this court, pending which, to wit, in June 1845, the corporation was dissolved by judgment of forfeiture. The writ of error must therefore abate, unless there be some one who can prosecute it. The trustee appointed by the court, under the act of 1843, when the judgment of forfeiture was pronounced, now comes into court and suggests in writing the dissolution of the corporation, and moves to have the suit revived in his name as trustee. In support of his motion he produces the judgment of forfeiture rendered against the bank, at the June term, 1845, of the circuit court of Adams county, which judgment also shows that at the same time he was appointed trustee, and he admits that he has been ordered to sell under the act of 1846. Prior to the passage of the act of 1846, we decided that the trustees appointed under the act of 1843, on the dissolution of a corporation, were entitled to have all suits revived in their names which had been instituted by the corporation, and were pending at the time of the forfeiture. The act of 1843 authorizes them to sue,' and having such right, they of course had a right to prosecute suits then pending. This right, the trustee then undoubtedly had prior to the passage of the act of 1846, and the question is, does it still exist, or has it been taken away by the last mentioned act, the construction of which is necessarily involved. A right to revive a suit necessarily embraces the right to prosecute it to final judgment, and to receive the proceeds under execution, just as such power is embraced in a right or authority to institute suits. If this trustee can have this suit revived, it must be under the act of 1843 ; the act of 1846 gives no such power, either directly or by intendment; on the contrary, such power is unnecessary and repugnant to the duty which it requires the trustees to perform. It does not require them to collect, but impliedly forbids it. Its provisions are that the trustees shall return an inventory of the property and evidences of debt, to the court, and then, under an order of court, to proceed to sell to the highest bidder for cash, all the property and evidences of debt specified and set forth in the inventory, including bills receivable, notes, judgments, decrees, and all other evidences of debt, at certain specified places, on giving ninety days notice. It is mandatory in its terms, and leaves no discretion with the, trustee. He cannot collect even the amount of a judgment, nor is he authorized to receive payment, if voluntarily . tendered, but he is to sell everything. Having no power to collect money by execution, there is no necessity for reviving under this act; it did not contemplate any such thing. If it is to prevail, this motion to revive cannot be sustained; but if the act of 1843 is to prevail, then the motion must be sustained. An act of the legislature which is inconsistent with the provisions of a former act, repeals the former by implication from necessity, although it may not profess a repeal; and this must be the effect of the act of 1846 on that of 1843, unless constitutional rights interpose barriers to such an effect.

It was suggested in argument that possibly both acts might stand, by so construing them as to make them harmonize. It is true, that we ought to follow that rule of construction which requires that acts seemingly repugnant, shall still be regarded as consistent if such construction can be fairly given them. In the present instance, nothing short of an unfair and forced construction, could produce such a result. The two acts are not only repugnant, but the latter seems to have been designed to abrogate that provision of the former, which w*e are now called on to enforce. By the act of 1843, the trustees are authorized to take charge of the assets; to sue for and collect the debts due the bank, and to sell and dispose of the property, without any restriction as to the manner of such sale. By the act of 1846, the trustees are required positively to sell all property and all rights held by the bank. The trustees under the first act had discretion, and a much more extensive power; they could sell the property as they might think best. Under the last act, they have no discretion, and are deprived of the important power of suing and collecting. This act creates but a limited agency; the first created a trustee. As they are thus inconsistent, the one or the other must be inoperative. The last is said to be in conflict with the constitution in several particulars, and to that extent, void. If that be so, the act of 1843 is still the law. We shall proceed, therefore, to inquire into the validity of the act of 1846, in its application to rights, which accrued under the forfeiture of the bank charier, which occurred before its passage.

It is said to be in conflict with the constitution in several particulars; that it is retrospective and destroys vested rights ; that it violates the obligation of contracts, and that it also violates the fourteenth section of'the bill of rights, which declares “ that all courts shall.be open, and every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered, without sale, denial or delay.”

As the validity of the act is attacked, because it violates constitutional rights, the inquiry seems to give rise to three questions : First, what were the rights of any and all parties in interest, of the state as well as individuals, under the act of 1843, either by the express declaration of that act, or as resulting consequentially from it, independently of such express declarations? Second, how and to what extent have the rights which existed under the law of 1843, been changed by the law of 1846? and third, as to the power of the legislature to make such changes.

.First, with regard to the rights of all parties under the act of 1843, either as directly declared, or as resulting necessarily from it. It was said, in argument, with much plausibility, that even without the interposition of the-legislature, the debts due to and from the bank, would have survived its dissolution; that these commercial corporations should be regarded as partnerships, and the fund or property owned by them a trust fund, which equity would appropriate to the payment of their debts. The current of decisions seems to have fallen into a different channel, and it may now be regarded as the settled doctrine, that on the dissolution of a banking corporation, the debts due to and from it are extinguished; not by any implied condition in the contracts, but from necessity, because there is no person in whose favor, or against whom they can be enforced. But to proceed. What then were the rights which accrued under the act of 1843 ? The question is intended to embrace something more than the rights expressly given. The act was designed to prescribe a mode of proceeding against corporations for violations of charters. To avert the consequences which it was supposed would follow a dissolution of the corporation, the legislature provided by the eighth section, that upon judgment of forfeiture, the debtors of such bank should not be released by such judgment from their debts and .liabilities, but that it should be the duty of the court to appoint one or more trustees to take charge of the books and assets; to sue for and collect all debts due to such bank, and to sell and dispose of its property; and the proceeds of the debts when collected, and of the property, to apply, as might thereafter be directed bylaw, to the payment of the debts of such bank. This act is called the grant, or assignment of all the rights which now exist. It contains two propositions: first, that the debts due to the bank should not be extinguished; and second, that they should be applied to the payment of the debts due from the bank. In the outset, we cannot admit the entire correctness of the argument, on which more than one of the counsel! aid much stress, that there are no other rights, either in the trustee or creditors, than such as are expressly given by the act. By saying that the trustee should apply the proceeds, as might thereafter be directed by law, to the payment of the debts of the bank, the legislature did not make an appropriation in favor of creditors. It gave nothing, for the best of all reasons; it did not own the debts due the bank, and, therefore, could not give them to the creditors. If it had professed to give nothing, it is believed that the result, so far as the right is concerned, would not have been materially different from what it is. To be more explicit; suppose the legislature had said the debts due to and from the bank shall not be extinguished, and had stopped there, how would the rights of debtor and creditor have stood then 1 The contracts would have been saved, and the obligations in full force. The rights of the creditor would have been thereby saved, and the liability of the debtor would also have continued to exist. The only question is as to the remedy, and it is said there is no right without a remedy, and this is true. When the law is inadequate, equity supplies its deficiencies, by furnishing an appropriate remedy. If there be a right, in the legal sense of that term, as contradistinguished from a right in morals, then, either in law or in equity is there a remedy. Let us suppose the legislature to pass an act, with no other object in view than a mere repeal of so much of the common law, as extinguishes the debts of a corporation on its dissolution. It would seem to follow, as a consequence of such repeal, that the debts would still exist, and yet they would not if there was no remedy, for there is no debt in a legal sense unless it can be enforced; and the consequence would be that the legislature cannot repeal that part of the common law, without also providing a remedy. But is it not true that when the contract is saved in full force, the existing law furnishes a remedy? The debts due to the bank, are sometimes regarded as constituting a trust-fund for the payment of debts due from it; but whether that be true to the full extent of a strict trust or not, is not material; it is enough if it be a fund which equity would appropriate for the benefit of creditors. Such was the principle of Wood v. Dummer, 3 Mason, 308, and Robins v. Embry, 1 S. & M. Ch. R. 207. If the creditor should happen to have a judgment, the remedy would be obvious enough. But very clearly, if in such a repealing law, provision had also been made for the appointment of a trustee to take charge of the assets without directing what he should do with them, the remedy would have followed. It is not true then, that all rights are derived from that part of the law which, in terms, declares that the assets shall be applied to the payment of debts. Strike from it these words, “ and the proceeds of the debts when collected, and of the property when sold, to apply, as may hereafter be directed by law, to the payment of the debts of such bank or banks, corporation or corporations,” and creditors would still have recourse against the funds. By saving the debts from extinction, and providing for the appointment of a successor, the existing law attached the trust, or remedy.

In the further consideration of the effect of this law on the present question, we must bear in mind, that two of its prominent features, have, after a very full investigation, received a judicial construction, in the case of Nevitt v. The Rank of Port Gibson, 6 S. & M. 513. We decided, that the law conferred authority and imposed duties on the trustees, which could only be executed by investing them with the legal ownership of the property; and that they can maintain actions at law. We also decided that the act, in effect, declares the assets to be a trust-fund for the payment of debts, which would be enforced in a court of equity, without any further legislation; and that if the legislature were to attempt to apply them to any other purpose than the payment of the debts of the corporation, it would transcend its constitutional limits. We still adhere to this construction of the act. The trustee then had the legal title, or succession cast upon him. His condition is not materially different from that of a trustee appointed by contract. As a general principle the legal title vests in a trustee, whilst the equity is in the cestui que trust. By the act he is called a “trustee,” and the meaning of the term, was doubtless well understood; it does not create a mere agency, and if the legislature can repeal his authority, why can they not that of any other trustee 1 There is a trust-fund, a use to which it is to be applied, and a trustee to apply it; that is precisely the character of all trusts. The term was appropriate, and used, as we must suppose, understandingly. When a trustee is once appointed, he is amenable to judicial authority only. A court of chancery may remove him for an abuse of the trust, or it may compel him to perform it. The title of the creditors is equally clear. It resulted as a necessary consequence from the declaration, that the debts due the bank, should not be extinguished, and that a trustee should be appointed to receive them; it was recognized and strengthened by the declaration, that the trustee should apply the funds to the payment of the debts of the bank. Although the act does not, in so many words, say that the debts due from the bank shall not be extinguished, yet, this is the necessary consequence of what is said. The debts due the bank could have been kept alive for no other purpose, and besides, the declaration that the funds should be applied to the payment of debts, necessarily kept the claims of creditors in existence to receive the fund; and so it is too with regard to property; the intention was to save all for the benefit of creditors, which is manifest, as the property was to be converted into money. But the legislature had no power to appropriate the funds to any other purpose; that is a point expressly decided in Nevitt’s case. The common law might have been left to operate in extinguishing the debts by a dissolution of the bank, but the very moment they were saved from annihilation, their destiny was fixed. But supposing it to have been within the power of the legislature to change that destiny, it is still perfectly apparent that no such thing was intended; and if legislative intention is worth anything in the construction of a law, it must place the rights of creditors beyond dispute in this instance, so far as the legislative power over the assets extended. When the legislature declared that “ the proceeds of the debts when collected, and of the property when sold” should be applied to the payment of debts as might thereafter be directed by law, a beneficial interest then vested in creditors, even if none would have vested without such declaration, and by interposing a trustee, the creditors had also a remedy by which to enforce their rights.

Let us now look at the condition of things as produced by the act of 1843. The bank had violated the conditions of its charter, and judgment of forfeiture was pronounced against it. It had property and debts due to it. There were also claims against it. The common law, which would have extinguished such debts on both sides, had been repealed; it was not the law of the land that the debts due to and from a corporation should be extinguished. The contracts were preserved in full vigor, and the property did not revert to the original grantor, or to the state. The law required that a trustee or successor should be appointed; this was done, and he thereby acquired the legal title to the property and choses in action. He became in law the owner; he could sue and collect, and sell property. The funds in his hands were subject however to a trust; creditors had a vested beneficial interest in them. They were held by the trustee but to be applied to the use of creditors. Having an equitable interest, creditors had also a remedy; they could resort to a court of chancery to compel the trustee to discharge his duty by collecting the funds, and then, by paying them over, under the direction of the court of chancery. No further legislation was required. The right and the remedy both existed; the one was perfect, and the other was adequate. It would seem to require something more than the exercise of legitimate legislative .power to break up this connection — to produce a total change in the existing rights of the parties, by taking away entirely the remedy of the creditor, and by compelling the trustee to sell his legal title. Yet such power is claimed for the legislature; it was made to rest on these words in the law, to wit: “ and the proceeds of the debts, when collected, and of the property, when sold, to apply, as may hereafter be directed by law, to the payment of the debts,” &c. In this language, it is argued, there was a reservation of power to give future directions by law with regard to the disposition of the assets. If the state reserved power over this property, or the assets, she must have possessed it, for nothing can be reserved which was not possessed. If anything more than ordinary legislative power can be exerted over this fund, or the choses in action, it must be in virtue of some right of property in the state. Surely, if she has no right of property, she possesses nothing more than a general legislative power, to be exercised only as it is on the property or rights of individuals. Let us briefly, then, inquire into the rights of the state, in this respect. None can be asserted in consequence of any power the state may be supposed to have had over the bank; the bank had ceased to exist, and any power over it must have also ceased. But the property and rights were left. The state had withdrawn the portion of power which it had delegated.to the corporation, and the relation that had once existed between the legislature and the bank, no longer existed. It cannot be that, because this property once belonged to the bank, that more than ordinary power can be claimed over it. Nor does such power exist merely because provision was made that the rights should survive the dissolution ; that would be to assume that the state had a right to appropriate it by legislative act to her own use, which is denied. There is no such thing as a legislative appropriation of property in this country. If it can be shown that the state had no interest whatever in the choses in action, and the real estate, then it will follow that none other than a general legislative power existed over them. The state could have acquired no right on the ground of forfeiture. The constitution declares that no conviction for an offence, shall work a forfeiture of estate. The legislature cannot, in the face of this provision, pass a law of forfeiture for offences, nor can it pass an act to transfer property. It is the province of the judiciary to declare the ownership of property in virtue of some preexisting rule or law; and no judicial determination had been pronounced, giving title to the state. No right whatever can be claimed-under the common law to the choses in action, or the real estate. Suppose that law to have been in full force, what is the consequence? By that the real estate would have reverted to the grantor, not to the state; nor could she control it more than other property, for the moment the forfeiture was declared the title would have passed by operation of law to the grantor. The personal property, the state would have been entitled to, and could have disposed of; but she could have acquired no right to the choses in action; they would have been extinguished. Then if there be any such right as that claimed, it must result from the act of 1843. The most obvious answer to this is found in the want of intention in the legislature to vest the property in the state, even if it had possessed the power to do so. There is nothing in the act which professes, either directly or indirectly, to confer any right of property on the state, either absolutely or conditionally. The state did not, nor could she, acquire any right of property by the common law, and she evidently acquired none by statute; it transfers no right, which it should have done if any was intended to be secured, by it; because as the state had no right, independently of the statute, some act of transfer was necessary, as without it nothing could be acquired. Then how, it may be asked, does the particular clause under consideration amount to a reservation of power, when nothing was possessed to reserve. How does it amount to a conditional gift, when the state had nothing to give? If it is tobe construed as amounting to anything more than a reservation of general legislative power, it is void, for nothing more was possessed to reserve; and if it amounts only to a reservation of a right to legislate in regard to these rights, it was unnecessary ; such right is always in the legislature, unless it has been expressly parted with. For all practical purposes, then, this clause might as well have been left out of the statute, so far as it is attempted to be made the source of authority to the legislature. It neither confers nor reserves power which would not have been possessed without it. In virtue of the right of eminent domain, the state may appropriate private property to public uses, but this can only be done on just compensation first made. The right is not predicated on this ground, nor is it derived from the law of escheats, which does not operate to the prejudice of creditors ; its application is not asserted in the present instance. We are totally at a loss then to perceive how a deduction is to be drawn in favor of a right of property in the state, either past or present; and need we repeat that, without such right, anything more than general legislative power over it cannot exist. Like other property, it is to be held and transmitted by laws prescribed within the acknowledged sphere of legislation; it is subject to nothing more. The common law might have been left to operate, and its consequences would have followed. But the rights were preserved, and when that effect was produced, private interests in them attached, or rather never were removed, because the obligation of the contracts never were interrupted. As the property and debts survived the institution they retained all their incidents. The ownership was somewhere, and wherever it was, it was a private, not a public right; and as such it was protected by the constitution, subject only to such legislative authority as may be exercised over every individual in the community.

But suppose it to be admitted that the state once had such right as that claimed, what follows? She has parted with it. The act of 1843 expressly declares that it shall be applied to the payment of debts. We have decided that under this provision such a trust was raised as would be enforced in favor of creditors in equity, without further legislation. We could not so have decided if the state had reserved the right. Notwithstanding this decision it is argued that there was still a power of control, but this would be inconsistent with the equity of creditors. When the state parts with property, even by donation, it becomes a contract, and is beyond her control. Private rights are then vested, which cannot be divested. The state gave the franchise to the corporation, but had no power to withdraw it at pleasure; it required a forfeiture of the condition to enable this to be done.

Second. Having thus endeavored to show to what.extent rights were vested under the act of 1843, and in whom, we come, in the next place, to inquire how and to what extent these rights are changed by the act of 1846. By the first section the trustee is required to give bond conditioned to perform the duties required by that act. By the 9th section of the first act, he was required to give bond conditioned for the diligent collection of the debts, and the sale of the property. If the bond under the first act enured to the benefit of creditors, it might be a serious question whether any discharge from the obligation could be made, except by those for whose benefit it was intended. The second section of the act of 1846, makes it the duty of every person holding property belonging to the bank, to deliver it to the trustee, and a refusal to do so is made a contempt of court. This is the substitute for the right to sue for property given by the first act. It is a summary remedy, and certainly confers great power on the court, and it might seem a harsh and unauthorized one if the possessor of property should interpose a claim to hold it. The third section makes it the duty of the trustees to return an inventory of all rights and property, at the first term of the court after their appointment. The fourth section gives rise to the principal point involved in this case. It provides that the trustees, under the order of court, shall sell for cash to the highest bidder, all the property and evidences of debt set forth in the inventory, at certain specified places, on giving ninety days’ notice of such sale. By the eleventh section it is declared that all the provisions of the act shall extend to trustees previously appointed under the act of 1843. Here then is a plain declaration that the act was intended to apply to trustees appointed on forfeitures which had been previously declared. Consequently such trustees were imperatively required to sell, at public sale, property to which they held the legal title, whether it was in their possession or not. It deprives them of their right to sue on the choses in action. But the most important change is made in the rights of creditors. Their obligations were in full force under the act of 1843: the fund was declared a trust fund for their benefit — they had an interest in it, and consequently a right to have it collected — they had power to compel the trustees to perform their duty in the collection— and then they had an adequate remedy to enforce the payment of their notes, bills or bonds, out of the trust fund. By the last,act every right they had is swept away. They are compelled to submit to a sale of the property in which they had an interest, and indeed on which they had a lien, for that is the effect of a trust. They have no power over the trustee. They have obligations confessedly subsisting, without any remedy to enforce them. They cannot sue, as they could before, either at law or in equity. The power to sue a trustee in equity, arises out of the duty he is under to apply the fund in payment of the debt. It is a proceeding to enforce a lien upon the fund. When that duty ceases, by giving a different direction to the fund, the remedy is at an end; the lien is destroyed. Nothing is a legal remedy unless it can be carried out by process of execution. These changes are important and striking, and this brings us to inquire,

Third, as to the power of the legislature to declare these changes. When any vested right is taken away, or the obligation of any contract is impaired, the act is so far void. It requires no argument to prove that the legislature cannot interfere with vested rights in such a way as to destroy them. Remedies may be provided in aid of them, but any legislative act which destroys a right, or transfers it from one to another, against the will of the owner, is void. The fundamental principles of government forbid it. It is beyond the legitimate power of the legislature. A retrospective statute, affecting and changing vested rights, is very generally considered in this country, says Chancellor Kent, as founded on unconstitutional principles, and consequently inoperative and void. 1 Kent, 455. This too was the doctrine announced in the case of Dash v. Van Kluck, 7 Johns. 477, in which the effect of retrospective statutes was very much discussed. And in 8 Wheaton, 493, it was said that if rights be acquired under a law, they are not changed or lost by its repeal. The language of Judge Story, in the case of Wilkinson v. Leland, 2 Peters, 276, is worthy of being quoted. He says, “ That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of the legislative body,, without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them, a power so repugnant to the common principles of justice and civil liberty, lurked under.any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people.” But it must be useless to multiply authorities. The people 'of this country understand very well that there is no power in the legislature to take from them that which they own. They know that they have delegated to the legislature all the power it possesses, and no such authority has been granted. We have seen then that important rights were vested in the creditors of the bank, both before and after the act of 1843; we have also seen that those rights have been materially changed by the legislature; that.they have been actually deprived of all remedy; and we have lastly seen that the legislature possesses no such power. But it has been said there is no such thing as a vested right in a remedy. That is not understood to be the doctrine where the enjoyment or possession of a right, depends upon the remedy. It is true that there is no vested right in any particular remedy; the form of the remedy may be changed. But if it were even true that there is no such thing as a vested right in a remedy, the further question arises, — if the remedy is taken away, is not the obligation of the contract impaired ? It will be sufficient to quote the language of Judge Story, and apply it to the present case. He says, “ Although there is a distinction between the obligation of a contract and a remedy upon it; yet, if there are certain remedies existing at the time when it is made, all of which are afterwards wholly extinguished by new laws, so that there remain no means of enforcing its obligation, and no redress, such an abolition of all remedies, operating in presentí, is also an impairing of the obligation of such contract. But every change and mod-ideation of the remedy does not involve such a consequence. No one will doubt, that the legislature may vary the nature and extent of the remedy, so always, that some substantive remedy be in fact left.” 3 Story’s Com. on Con. 250. The rule has been even more strictly administered than here laid down, in the more recent decisions of the supreme court. Valuation or appraisement laws have been held to impair the obligation of the contract, because of the delay they produced. It cannot admit of question that where the remedy is entirely taken away, the obligation is impaired. The obligation is the duty which the obli-gor is under to perform the contract, and if the remedy be taken away, the legal obligation is destroyed. The state is bound to furnish a remedy by law for the enforcement of every right of the citizen. When the creditors of the bank entered into the contracts with it, the existing laws furnished a remedy at law. When the forfeiture was declared, the debts were not extinguished, but remained in full force, but the form of the remedy was necessarily changed. A trustee was provided for, and a fund set apart for the payment of debts. That trustee was invested with a legal right to sue. This was a grant of power which is equivalent to a contract; no grant can be impaired.

But the creditors were also clothed with a remedy; they could proceed to enforce their contracts on the fund through the trustee. The late law deprives them of kll remedy. They cannot sue on their contracts, although they are unimpaired, except by the privation of a remedy. The obligation is certainly impaired. But to this objection it was answered tha<t the sale directed by the 4th section is a remedy, but that is not so. It does not enforce the contract, on the contrary, it defeats its enforcement. A remedy is a legal demand of one’s right in a court of justice. It consists in a right to have the contract enforced by a judgment at law. In a legal remedy, the party is an actor, but here he is not. This sale has none of the characteristics of a legal remedy.

Having given our view of the questions involved, it remains to answer some of the arguments of counsel addressed to ns. It was said that no trust was created, no rights vested in any particular creditor, and consequently that no right was divested. This argument overlooks the decision in Nevitt’s case. We held, that the fund was a trust-fund for the payment of debts, and that it would be enforced in a court of chancery. It is now too late to say that no equity vested, or that no trust existed, or that it was so imperfect that it could not be enforced. But another of the counsel said this question was not directly involved in Nevitt’s case, and that the decision of the point is not binding. This is a mistake ; it arose directly on the validity of the law, and was as directly decided.

It was again said, that as the state saved this property for creditors, she had a right to reserve power to control it, and did do so, by directing thát it should be paid as might afterwards be directed by law. The truth of this proposition is not admitted. The state saves all our property by providing laws for its recovery, and its enjoyment. If I save the vessel of a mariner from sinking, I do not thereby acquire a right of property in the vessel, nor do Tacquire a right to manage the helm. It is the highest duty of the state to save and protect the rights of individuals, but this does not enlarge her power over the particular thing which has received protection. The social compact contains no such principle as that extraordinary and unauthorized power may be exerted in consideration of the discharge of an act of duty. All delegated power finds its limit in the constitution, and no benefit bestowed on a particular class of individuals, will authorize a relaxation of constitutional restrictions as to them.

It was insisted also, that the trustee was only invested with a power which is subject to revocation. . The case of a note transferred to an agent or attorney for collection, was given as an illustration. In the supposed case there is no transfer of the legal title. An attorney must bring suit in the name of his principal. But there is this further obvious distinction. No use vests in any one, the beneficial interest still remains in the individual who transferred the note. But that is again begging the question. When did the state get her right to transfer either with power of revocation, or without it. The truth is the state had no right of property; neither was it suspended, or held in abeyance; but vested immediately, the legal title in the trustees, and the beneficial interest or equity, in the creditors, and that consequently it was subject only to the general authority of the legislature, as other rights of a similar character are. It was then irrevocable.

But the main ground taken in argument, was that the legislature has a right to direct the trustees to sell, because they are agents of the state, or public officers, in proof of which, it is made embezzlement in them to misapply the funds. The legislature may make it embezzlement in any private trustee to squander or waste the funds entrusted to his keeping. The argument would be conclusive, if the property and assets belonged to the state; but if it be private property, it would be difficult to maintain that the legislature has power to direct the agents of the state to sell it. The state may control her own agents, but she cannot authorize them to seize and sell private property. Another of the counsel insisted however, that they were not public agents, but private trustees, and that as trusts are cognizable in equity, both the laws are void, because they confer power on the circuit courts to appoint trustees. We fully concur in thinking they are private trustees; we do not think they can, with any plausibility, be regarded as public officers. But we cannot concur in thinking either of the acts void, merely because they confer power on the circuit courts to appoint trustees. Trustees may be appointed by parties, or by courts of law, or even by the legislature for public purposes; but when appointed by the parties, or by a court of law, they are amenable to a court of chancery. That court- never appoints a trustee, except when there is a trust, and no trustee to manage or perform it. By the act of 1844, provision was made for putting the Planters Bank in liquidation, by proceedings in chancery through a trustee. In the case of that Bank v. The State, 6 S. & M. 628, we decided that notwithstanding this remedy, the courts of law might still proceed under the act of 1843, against that bank, in case no proceeding had been instituted under the act of 1844; thus indicating our opinion, that a trustee still might be appointed by a court of law.

It was pressed in argument that no rights were violated, — no contract impaired. Let us put the case of Routh & Williams v. The Commercial Bank of Natchez, which is one of the cases submitted, to prove that the rights of debtors are violated as well as the rights of creditors. The plaintiffs had a judgment rendered against them for over $100,000, in which it is said there was error, and that they are not in law bound to pay it. They prosecuted a writ of error to reverse the judgment, which was actually pending in this court, when the act of 1846 was passed. It does not provide that suits may be brought by, or revived in the name of, or against the trustee. If they cannot revive against the trustee, their writ of error must abate, the inevitable consequence of which is an affirmance of the judgment; it is equivalent to an affirmance of the judgment. Then a judgment stands against them, which is to be sold by the trustee, and which of course they would be bound to pay to the purchaser. This law makes a contract for them, and affirms a judgment on that contract. It imposes an obligation which they say does not exist. It takes away from them a suit pending, which is made a matter of right. This does not seem to be in keeping with that provision in the constitution which declares “ that all courts shall be open, and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

We have thus endeavored to give our view of the question involved, as well as to attempt a very brief reply to some of the prominent arguments of counsel. Our conclusion is, that, that portion of the act of 1846, relating to the sale of the property and assets of banks, cannot operate as to the banks whose charters had been forfeited, and trustees appointed under the act of 1843, prior to the passage of the last act. The motion to revive must consequently be sustained.

Mr. Justice Clayton concurred in the conclusions of Chief Justice ShaRKEy, for reasons to be thereafter filed.

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Dissenting Opinion

Mr. Justice Thacher

delivered the following dissenting opinion:

This is a writ of error to the circuit court of Scott county, sued out by the Commercial Bank of Natchez. Pending the writ of error, in this court, a judgment of forfeiture, under the act of 1843, has been pronounced against the said bank. This is now a motion by William Robertson, who was appointed the trustee of the said bank, upon the rendition of the judgment of forfeiture, for a revival of the suit, in his name, as trustee, and that he may be made party to the suit instead of the late bank.

The first question which arises, under this motion, is, can the trustee sue and be sued % This point arose in the case of Nevitt v. The Bank of Port Gibson, 6 S. & M. 513. In that case, I held that the rights and credits of the bank did not survive the judgment of forfeiture, authorized by the act of 1843, because, by that act, judgment of absolute and entire forfeiture was exacted, the effect of which was the total extinguishment of the franchises of the offending corporation, and as the franchises of the corporation were not, by the statute, continued, either in the original corporators, or in other persons, for any purpose whatever, the choses in action, which only existed by virtue of those franchises, became likewise totally and absolutely extinguished, and being so extinguished, were not the subject of an action at law. Subsequent reflection has only served to fasten this conviction more strongly on my mind.

The right of a banking corporation to enforce the collection of its choses in action, by actions at law, is one of its most important and vital franchises, because the business of a bank is to acquire profits, by loaning its capital stock. By the charters of the banks, in this state, they are authorized to loan three times the amount of the capital stock paid in. In lieu of the capital stock, then, and as a security for the repayment of the same, they acquire nothing but choses in action. A chose in action, in the eye of the law, is not property, but merely gives a right to recover property, by such legal remedies, as the general laws of the land provide, through the instrumentality of courts. If, therefore, the securities taken.for the repayment of such loans; together with the accumulated interest thereon, could not be sued upon, and the payment thereby enforced at law, the consequence would be, that when the bank had loaned out its capital stock, it would cease to exist for want of a power to recover the fund, which alone constitutes the bank. Like the silk-worm, it would have laid its egg, and died. All the authorities agree that when the franchises of a corporation cease to exist for a single instant of time, the rights dependent upon, or flowing out of those franchises, cease also to exist, and can never again be revived, except by the consent of all parties, to be charged or benefited thereby. The majority of the court, in their opinion just read, speaking of the common law rule, say, that “ it may now be regarded as the settled doctrine, that on the dissolution of a corporation, the debts due to and from it, are extinguished, not by any implied condition in the contract, but from necessity, because there is no person in whose favor, or against whom it can be enforced.” In the case of Nevitt v. The Bank of Port Gibson, 6 S. & M. 566, the majority of the court also said, we “deny that the legislature has any power to force a continued existence upon a corporation, after taking away its material franchises, under a judgment, striking down its capacity of succession, and of electing its own officers. And we deny the power of continuing the corporate existence in the hands of others, without the consent of the corporation, unless power to do so be reserved in the charter, or unless there be a general law, authorizing it to be done before the creation of such corporation.” In the present case, the charter of the Commercial Bank contains no such reservation of power, nor was there any general law to that effect, before its creation. The majority of the court do not deny that the Commercial Bank of Natchez is a dissolved corporation. They do not claim that any of the franchises of the bank are continued in the trustee, nor that the power of the trustee to sue is derived from the charter of the bank ; but, on the contrary, they deny that the legislature had the power to continue any of the corporate franchises in the trustee. Hence it is clear that the majority of the court rely alone on the statute of 1843, for the power of the trustee to sue.

The statute of 1843 was never accepted by the bank, nor is it pretended by any one that it constitutes a part of the charter of the bank. It is, therefore, a general law, passed subsequently to, and entirely disconnected from the special act incorporating the bank. It emanates exclusively from the legislative will, and is dependent upon the constitutional exercise of that will, for its force and' validity.

Having shown by the decisions of the majority of the court, that all the franchises of the bank, including the vital franchise of suing, are totally extinguished, and that the powers of the trustees are solely derived from the act of 1843, it follows as an inevitable conclusion, that there must have been a point of time when the franchises of the bank under its charter ceased to exist, and another point of time, subsequent thereto, when the supposed rights of the trustees, under the statute, accrued. Until the dissolution by judgment of forfeiture takes place, the clause of the statute appointing trustees is inoperative. The question of forfeiture is tried by a jury; the jury find a verdict of guilty against the bank. On the finding of this verdict, the court enters up judgment of forfeiture. Here, according to the opinions^ the majority of the court, all the franchises of the bank cease. At this stage of the proceeding, the statute requires the court to appoint one or more trustees, which trustees are required to give bond before they can enter upon the discharge of their duties. All this proceeding requires time. The judge must exercise his discretion in the selection of a trustee. After the court has made its selection of a trustee, the person selected has the option to accept or refuse the appointment. Hence it is clear that the appointment of a trustee, could be no part of the final judgment of the court, because a final judgment is always binding upon the parties thereto. If the person selected refuse the appointment, it would be the duty of the court to select another, and so on, until an acceptance of the trust was obtained. The person accepting the trust, is then required to find sureties to be approved by the court, who, with the trustee, are to enter into bond, conditioned as the court may direct for the faithful performance of the trust, and until such bond is executed, the trustee has no right accruing under the statute. The time then which intervenes between the dissolution of the corporation by the judgment of forfeiture and the qualification of the trustee, thereafter to be appointed by the court may be an hour, a day, or a year, or more. Certain it is, that a point of time intervenes when there is no person in existence who has a right of action in the choses in action, which were of the dissolved corporation. It matters not how short this period of time may be, but if such an interregnum-in the right of action once exist, it can never be reclaimed by legislative power.alone. See dissenting opinions. Nevitt v. The Bank of Port Gibson, 6 S. & M. 531, 575.

It being thus clearly established, as well from the opinions of the majority of the court as from other authorities, that by the judgment of forfeiture under the statute of 1843, the right of the bank to sue, together with all its other franchises, was entirely cloven down and utterly extinguished, and that those rights are not continued through the charter to the trustee. The question now arises, — does that clause o'f the statute which provides that upon the judgment of forfeiture, “the debtors should not be released by such judgment from their debts and liabilities to the bank, but that it shall be the duty of the court rendering such judgment to appoint one or more trustees to take charge of the books and assets of the same, and to sue for, and collect all debts due such.bank,” confer the right upon the trustees to sue in the lieu and stead of the dissolved bank on its choses in action? Let it be borne in mind, that choses in action are mere rights to a remedy at law for the recovery of property; and are based upon a contract between the parties thereto for property. The bank was the sole owner of those choses in action; and at common law, the bank alone had a right to transfer the same, but by a statute of this state, that common law right was taken away. Alluding to this subject, the majority of the court in their opinion in this case say, — “There is no such thing as a legislative appropriation of property-in this country. If it can be shown that the state had no interest whatever in the choses in action, and the real estate, then it will follow that none other than a general legislative power existed over them. The state could have acquired no right on the'ground of forfeiture. The constitution declares that no conviction for an offence shall work a forfeiture of estate. The legislature cannot in the face of this provision, pass a law of forfeiture for offences, nor can it pass an act to transfer property. It is the province of the judiciary to declare the ownership of property in virtue of some preexisting rule or law; and no judicial determination had been pronounced, giving title to the state. No right whatever can be claimed under the common law to the choses in action, or the real estate. Suppose that law to have been in full force, what is the consequence ? By that the real estate would have reverted to the grantor, not to the state; nor could she control it more than other property, for the moment the forfeiture was declared the title would have passed by operation of law to the grantor. The personal property, the state would have been entitled to, and could have disposed of, but she could have acquired no right to the choses in action; they would have been extinguished. Then if there be any such right as that claimed, it must result from the act of 1843. The most obvious answer to this is found in the want of intention in the legislature to vest the property in the state, even if it had possessed the power to do so. There is nothing in the act which professes, either directly or indirectly, to confer any right of property on the state, either absolutely or conditionally. The state did not, nor could she, acquire any right of property by the common law, and she evidently acquired none by the statute ; it transfers no right, which it should have done if any was intended to be secured by it; because as the state had no right independently of the statute, some act of transfer was necessary, as without it nothing could be acquired. Then how, it may be asked, does the particular clause under consideration amount to a reservation of power, when nothing was possessed to reserve. How does it amount to a conditional gift, when the state had nothing to give.” This reasoning demonstrates beyond a doubt that the state had neither a right of action upon, nor a right of property in the choses in action that were of the dissolved bank, and having no such right, it was not in her power to convey or transfer by legislative enactment such a right to a trustee, subsequently to be appointed by the circuit court. This very ground was taken by me in my dissenting opinions, in the case of Nevitt v. The Bank of Port Gibson, 6 S. & M. 546; Ibid. 590.

Thus far, having shown that the trustees do not derive a right of action through the charter of the bank, and that the act of 1843, in attempting to confer such right, was unconstitutional and void, according to the opinions of the majority of the court, the question still remains to be answered, — whence do the trustees derive the right to sue ! The reply is, that this right results “ from operation of law.” We have already seen that the law of the charter has no such operation, and that by the staute of 1840, all banks were forbidden to transfer their choses in action, which statute has been held valid by adjudication of this court. Planters Bank v. Sharp, 4 S. & M. 17. The majority of the court have decided that the state had no right of property in the choses in action, and no right of action in the same, and having no such rights, the legislature could confer none. It follows then, that the statute of 1843, so far as it attempts to confer a title to property, or right of action to recover the same, must be void for want of power in the legislature to pass such an act. If then the legislature have no power to make such a law, and if such a law be void, how can such a law so operate as to produce an effect which the law itself cannot produce. Can the law have an operation and produce an effect, which the law-making power had no authority to accomplish?

It must be remembered, that a cause of action arises out of a contract between the parties, and that a right to sue on such contract, arises from the legislative will. For instance, the legislature passes a general law, authorizing all persons, owning promissory notes, to bring an action at law upon the same. Under this law, any person owning a promissory note, would have a right to sue at law upon the same, but persons, not owning promissory notes, would acquire no rights under the law. Thus, also, the'constitution guarantees that the courts shall always' be open ; but they are kept open only for persons who seek to vindicate an actual injury done to them in their lands, goods, persons or reputations. The constitution does not open the courts to those persons who have no cause of action. Suppose, a plaintiff file a declaration against a defendant in the circuit court. The defendant demurs on the ground, that the plaintiff’s declaration sets forth no cause of action. On the trial of the demurrer, the court decides that the plaintiff’s declaration contains no cause of action. The judgment of the court, then is, that the plaintiff’s action be dismissed. He is then turned out of the court, yet the constitution provides that the courts shall always be open. So, with the statute of 1843. The legislature says, that the ■ trustees appointed under that act, shall have power to sue for, and collect all debts due the bank. If there were no debts due the bank, none could be collected ; and if the trustees had no legal title in debts formerly belonging to the bank, it would confer no rights, because the right to sue can only exist where there is a legal, preexisting cause of action; and when the legislature says that the trustees may sue, it does not thereby invest the trustees with any title to property nor does it create any cause of action in favor of said trustees, but the trustees are confined, in exercising their right to sue, to such causes of action as had a legal existence independent of the statute of 1833. But, I have already shown that, independent of the statute of 1843, no cause of action exists after the judgment of forfeiture. The statute, therefore, of 1843, in giving the trustees power to sue for, and collect debts due to the bank, is evidently based on the mistaken, supposition of the legislature, that the choses in action, which conferred a right of action on the bank, previously to its dissolution, survived the judgment of forfeiture, and would support an action at law in favor of any person whom the legislature might direct to bring such action. It has already been shown that this is a false assumption, because the choses in action are annulled, and the right of action flowing therefrom, ceases to exist the moment the franchises of the bank cease to exist. In the argument at bar, counsel seem to have confounded a right to sue with a cause of action. The burden of the argument was, that a right to sue was a vested right, and they read many authorities to that point; and so the majority of the court say, that a right to sue, vested in the trustees on the dissolution of the bank, and that such right is a vested right; hence, the statute of 1846, taking away the right to sue, and furnishing no other adequate remedy, was unconstitutional, and to that extent void. But it has nowhere been shown to my conviction, that a cause of action was legally vested in the trustees. It is true, the majority of the court declare, that “ the contracts were preserved in full vigor, and the property did not revert to the original grantor or to the state, and the law required that a trustee or successor should be appointed, and this having been done, he thereby acquired the legal title to the property and choses in action.” This position is not made the subject of argument in the present opinion of the majority of the court, but is based upon their opinion in the case of Neviit v. The Port Gibson Bank, 6 S. & M. 513. My dissenting opinions in that case in addition to the views hereinbefore set forth, are referred to as a reply to this position.

For these reasons, in addition to those heretofore given, I am still of the opinion that the trustees appointed under the statute of 1843, have no such title to the choses in action that were of the dissolved bank, as will enable them to support an action upon the same.

It has been strenuously urged upon me, that inasmuch as the majority of the court have heretofore held the statute of 1843 to be constitutional, that it is now my duty to concur in that opinion, the convictions of my own mind to the contrary, notwithstanding. I cannot yield my assent to this proposition. The judges of this court are sworn to support the constitution of this state,.and to discharge, to the best of their respective abilities, the duties of their office. The constitution is the supreme law of the land. Were I to concur in the opinion of the majority of the court, I should feel that I was doing an act in violation of the constitution of the state. The majority of the court are doubtless as conscientious in entertaining their opinion. But each judge is independent of the others ; and is responsible alone to his own conscience and to his God, for the judgment he may render in any particular case.

In pursuing this cause I am not without a precedent. The constitution of this state prohibits the introduction of slaves as merchandise, or for sale. In the case of Green v. Robinson, 5 How. 80, the majority of this court decided that a contract made in consideration of slaves introduced into the state, in violation of the constitution, might be avoided, by making the defence at law; but if the defence was not made, and a jhdgment on the contract was obtained, such judgment could not be set aside. Chief Justice Sharkey dissented, on the ground that such a contract was not only voidable, but 'absolutely void, and being void no action could be supported on the same, and no judgment at law could make it'valid. At a subsequent term, the same question arose, in the case of Glidewell v. Hite, 5 How. 110, and Chief Justice Sharkey again dissented, and read an able, and to my mind, unanswerable dissenting opinion.

Upon principle and precedent, therefore, I feel bound to dissent in this case.

The following opinion was filed by Mr. Justice Clayton, after the delivery of the foregoing opinions, in accordance with the intimation, given at the conclusion of the opinion of the chief justice.

I concur in the conclusion of the chief justice, in this cause, but desire to give expression to some of the reasons which influence my judgment.

The act of 1843, commonly called the Briscoe bill, with the Guión amendment, has undergone frequent, protracted, and elaborate investigation, in this court. In the first case, that of the Commercial Bank of Rodney v. The State, 4 S. & M. 439, each of the judges delivered a separate opinion. Judge Thacher, in the close of his opinion, after having previously made a summary of the provisions of the law in question, remarks: “ The foregoing review of this case, brings me to the conclusion, that the statute is, in all respects, constitutional and valid, and that the whole proceedings, as given by the statute, in its inception, progress and termination, is properly, and solely cognizable in the courts of law.” 490.

My own opinion was, that the statute was constitutional, except that part which requires the injunction to be returned into the circuit court, and to be retained until the hearing of the quo xoarranto. Ib. 501. The chief justice was of opinion, that it was constitutional, except as to the whole injunction clause, which he thought was entirely inoperative. Ib. 513.

Next came the case of Nevitt v. The Bank of Port Gibson, 6 S. & M. 513. The majority of the court there held, “ that a judgment of forfeiture against a bank, and appointment of trustees, under the act of 1843, is an assignment, by operation of law, of all the property of the bank to the trustees, for the benefit of creditors; and that the assignment relates back to the period of the issuance of the injunction, against the bank, under the act.” 565 - 573.

Judge Thacher, who dissented in that case, says, “ From the best examination I have been able to bestow on the statute of 1843, and the rules of law applicable to it, I am forced to the conclusion, that the rights and credits of the Bank of Port Gibson do not survive the judgment rendered against that bank.” 532. “ On the contrary, the judgment of forfeiture so extinguishes all the franchises, privileges, rights and credits, of the dissolved corporations, that the trustees, contemplated by the statute, can take nothing by their appointment, save the personal property of the corporation dissolved.” lb. 597.

Then came the case of the Planters Bank, which was twice before this court. On the first occasion, the question was, whether the act of 1844, in regard to that bank and the Mississippi Railroad Company, operated a repeal, by implication, of the Briscoe bill of 1843. To understand the full import of this question, it will be proper to state, that the act of 1844 provided, in the first place, for a surrender of charters, upon the part of those banks, and for a mode of winding up their affairs, and appropriating their assets, in the event of such surrender. But, if they refused to surrender their charters, then jjt provided a mode of proceeding, in the superior court of chancery, to vacate the charter, and to wind up the corporation, for the benefit of the creditors, to appoint commissioners to collect all debts belonging to the same, and to apply the proceeds, first, to the payment of the circulation and certificates of deposit of the bank, and then to the extinguishment of the principal and interest of the bonds issued for state stock, in the Planters Bank. Acts of 1844, 138. The court expressed its unanimous opinion, that there was “ no such repugnancy in the two acts, as to make the last, necessarily, a repeal of the former; and that a judgment, under either, might be pleaded in bar of any subsequent proceeding, in the other court.” 6 S. & M. 632. The next instance was, a mere repetition of this opinion, as to this particular point, and was also unanimous. Planters Bank v. The State, 7 S. & M. 178.

One of two things was established by these decisions; either that the act of 1843 was valid and sufficient to carry out all the objects of the legislature, in the passage of that law; or if not, then, that the act of 1844 was likewise invalid and insufficient for its purposes and objects, so that neither act was of any force. To adopt the latter alternative, as true, would be to condemn the act of 1844 unheard, and to pronounce it unworthy of consideration. For myself, I disclaim all such intention, and am free to declare, that the decision, in my understanding of it, established the validity and sufficiency of the act of 1843, “ in all respects, inception, progress, and termination.”

In his message to the legislature, in January, 1846, the governor communicated a letter from the attorney-general, in regard to these acts of 1843 and 1844, and his course, under them, in reference to the Planters Bank. The letter is to be found among the documents accompanying the message. Senate Journal of 1846, 89. This letter, in reply to the inquiry of the executive, “ why it was deemed better to proceed against the Planters Bank, by quo warranto, than by bill in chancery under the act of 1844,” in substance says: “The proceeding by quo warranto, under the statute of 1843, was pending against that bank, at the time the statute of 1844 was passed. The bank contended, that the law of 1844 repealed the law of 1843, as to that bank, and moved the circuit court to dismiss the information on that ground. The court decided that the law of 1844 did not repeal the law of 1843, and that the information must proceed, as that court had first taken jurisdiction of the law. This decision of the circuit court, put it out of my power to file a bill in chancery, against the bank, under the act of 1844. The powers of the circuit court to wind up the affairs of the bank, were as plenary as those of the chancery court; and had the two proceedings been carried on, it would have presented the singular aspect of a court of law and a court of chancery, both contending for the possession of the assets of the bank.” The legislature appears to have acquiesced in this view; it took no special action, in regard to the Planters Bank, but included it, with a single immaterial exception, so far as the matter in hand is concerned, in the general law, passed at that session.

Thus the law stood, when the act' of 1846 was passed. The decisions of this court upon the act of 1813, were before the legislature. It had been announced, in terms that could not be misunderstood, that the proceedings, under the act of 1843, operated an assignment, in law, of all the assets of the bank, to the trustees, for the benefit of creditors. The statute of 1846, stands on the platform of the act of 1843. It recognizes its validity throughout, and is passed as an amendment to it. It was passed after the judicial construction of this court was had. The views of each member of the court were before it. The statute distinctly recognizes the principle, that the rights and credits were not extinguished, but, on the contrary, that they survived the judgment of forfeiture against the banks. It provides a mode for the disposition of-the rights, credits and effects of the banks. After all this, it seems to me, that the act of 1843 is no longer a matter of controversy, but that its construction is settled, and at rest. The act of 1846 stands upon the act of 1843, and its fixed construction, as its foundation, and upon that foundation I take my place, side by side, with the legislature.

The act of 1846 thus rests upon that of 1843. It recognizes the validity of the legal assignment to the trustees, and legislates upon the rights vested under it. The third section directs that the trustees shall return an inventory of all the property and evidences of debt, which come to their possession, and the fourth, requires them to sell said property and evidences of debt, to the highest bidder for cash, in a certain specified manner. The question is, whether this part of the act, directing a sale of the evidences of debt, is constitutional and valid. It divests the right to sue and collect, in the ordinary course of law; it directs a sale by the trustees, and then authorizes a redemption from the purchaser. Can this be done 1 It is in reference to banks, whose charters had been previously declared forfeited, under the act of 1843, that the question arises.

Let us illustrate the proposition by an example. Suppose the legislature should pass a law requiring the merchants of this state not to sue upon the debts due to them, but to expose all their bills, notes, and open accounts, to public sale, to the highest bidder. No one would contend for the validity of such a law. In principle, it is the same with this. By the act of 1843, recognized, in this respect, by the act of 1846, the trustees were vested with the legal title to the choses in action, else they could have nothing to sue for, or to sell. By virtue of that legal title, they were clothed with a right of action. This law divests the right of property, or what is the same thing, renders it worthless, by taking away all remedy to enforce it, and thus impairs its obligation. Its direct tendency is, to enable the debtor to buy up his debt, at an enormous discount, in disregard of the rights of the creditor. It closes the gates of the temple of justice, against the positive provisions of the bill of rights. In my view, its enactments, on this head, are against the constitution of the United States, and of this state.

But it is said this clause is valid, because, by the act of 1843, the legislature reserved power to direct the disposition of the assets, by further legislation. The best way to solve this point, is to see what power was really reserved. The act says, “ the court, rendering the judgment of forfeiture, shall appoint one or more trustees, to collect the debts due to the corporation, to sell and dispose of all its property, and the proceeds to apply, in payment of the debts of the corporation, as might be thereafter directed by law.” What was the legislature afterwards to direct? Not the collection of the debts; that was already done; nor the sale of the property, for that likewise had been done. It must have been, then, the mode of applying the proceeds to the payment of the debts. The act of 1846, contains rules for such application, and to this extent the power to legislate had been reserved. Whether the preferences given, by the act, are valid, is a question not now before us. But, by no just rule of interpretation, can it be held, that this power, thus reserved, can extend to defeat the right of the trustees to sue, and collect the debts due to the banks, at the time of their dissolution.

But it is said, that, by the act of 1840, the banks were prohibited from making assignments of their choses in action. That is true; but the act of 1843, under a given state of things, makes an assignment, by law, for them. If the legislature, by one statute, could take away the right of assignment, which the banks previously h^d, surely by another and a subsequent act, the right to assign might be restored, either directly to the banks, or indirectly by operation of law.

For my views of the law of 1843, I merely refer to my opinions, in the case of Nevitt, and have only to say, that my confidence, in the conclusions, is not, in the slightest degree, diminished, by any subsequent discussion or investigation.

The dissenting opinion contains a long.extract from the opinion of the chief justice in this cause, and says that it embodies and adopts the views of the dissenting opinion in Nevitt’s case. I do not so understand the opinion, especially, when the whole of it is taken in connection, and not a selected portion alone. When it asserts the state has nothing to grant, it likewise holds, that, by the operation of law, the assets of the bank pass, upon the judgment of forfeiture, from the bank to the trustee, who, thenceforward, stands in the situation of an assignee. The trustee, being thus clothed, not with the rights of the state, but the rights which pertained to the bank before its dissolution, has power to collect its assets, in the same manner that an administrator has right to collect the effects of his decedent. On the death of a natural person, the law casts all his rights on his legal representative; so, on the dissolution of the corporation, under the act of 1843, all its rights and credits are transferred to the trustee. In each case, the state, by its law, only prescribes a rule to govern the transmission, and to regulate the mode of ultimate distribution. The intention of the legislature is too plain to be mistaken. No one can doubt its meaning, and, in my apprehension, to carry out the intention of a statute, when not contrary to the constitution, and when plainly expressed, is the incumbent duty of the court. The intention is the polar star of interpretation.

But, if this view of the opinion of the chief justice be not correct, and if it contain anything, which adopts the views of the dissenting opinion, in Nevitt’s case, then I cannot concur in such reasoning. I did not formerly, nor do I now concur with that dissenting opinion. I do not regard the conclusion in this cause, to be dependent upon, or affected by the reasoning contained in that portion of the opinion, selected for comment, by the dissenting member of the court. I have not the slightest doubt of the correctness of that conclusion, and it only remains for me to add my cordial concurrence in it.