Durr v. State

| Ala. | Dec 15, 1877

BRICKELL, C. J.

— The indictment is founded on the .statute (Code of 1876, § 4433), which prohibits the making, ■emission, &c., without authority of law, of any paper to answer the purposes of money, or for general circulation. The original statute, from which this section of the Code was taken, was enacted as part of the Penal Code of 1841. Clay’s Dig. 435-6. But a short time prior to its enactment, the Supreme Court of the United States had decided, and the decision had been followed by this court, that banking in this State, in all its ramifications, was a common law right belonging to the citizen, unrestrained by the constitution or existing laws. — Bank of Augusta v. Earle, 13 Pet., 519" court="SCOTUS" date_filed="1839-03-18" href="https://app.midpage.ai/document/bank-of-augusta-v-earle-86114?utm_source=webapp" opinion_id="86114">13 Peters, 519; Nance v. Hemphill, 1 Ala. 551" court="Ala." date_filed="1840-06-15" href="https://app.midpage.ai/document/nance-v-hemphill-6501350?utm_source=webapp" opinion_id="6501350">1 Ala. 551. The statute was intended to •serve a two-fold purpose — that of restraining individuals from exercising the function of banking, which consists in the issue of paper to answer the purposes or to circulate as money — and to suppress the mischiefs of an unauthorized paper currency passing by delivery as xnoney. Such a currency, especially of low denominations, iix times of financial 'distress, when the authorized or chartered banks had suspended specie payments, and the smaller coins were withdrawn from circulation, had been introduced, and the comunnity of texx suffered from the irresponsibility of those by whom it was issued. This currency was of varioxxs forms and chax’acteristics. Sometimes bearing all the appearances of a bank-note, yet payable only in bank-notes, and redeem.able only when a sufficient number of the notes to amount to a particular sum were presexxted. Sometimes payable to beai’ex’, or to a particular person or bearer, and sometimes without a payee. It also oftexx assumed the form of a ticket declaring that it was good for a particular sum in merchandise. If the statute had been directed against paper of a particular form, paper in the nature of bank-notes, it would not have been adapted to the suppression of the evils from which the community had suffered. It is not therefore directed against paper of any particular form or character. Without regard to its form or character, if the purpose of its emission is that it shall pass and circulate as money — in the language of the statute, answer the purposes of money— it falls within the statutory prohibition. — Barnett v. State, 54 Ala. 579" court="Ala." date_filed="1875-12-15" href="https://app.midpage.ai/document/barnett-v-state-6509321?utm_source=webapp" opinion_id="6509321">54 Ala. 579. When we say answer the purposes of money, we mean the purposes for which bank-notes are issued; that of entering into the transactions of business, and passing current as money for an indefinite period. Such we regard is the real meaning of the statute. Bills of exchange, promissory notes, bills single, checks, bonds, all answer some of the purposes of money. They are given and accepted in the payment of debts, in the purchase of property, and serve many of the purposes of money; yet they do not fall within the prohibition of the statute, unless intended for general circulation — intended not to answer the purposes of money with a particular individual, in a particular transaction— but to pass current as money in all the general transactions in which money may be used. It is only when they are so intended, and so used, that they are capable of working the mischief to the community against which the statute intends to guard.

The paper now in question, in form and legal effect, is a mere authority personal to the individual named in it to purchase goods on the credit of the drawer, to the amount of fifty cents. The negotiability of the paper is destroyed by the words, not transferable, written across its face, if in any event it was negotiable. These words prevent its transfer, or the delegation of the authority it contains. Such a paper can not do the office of money — can not enter into general circulation; can not pass by delivery; can not be changed or converted from a mere authority personal to the individual named-in it, and is not within the purview of the statute. The demurrer to the indictment should have been sustained. This conclusion renders it unnecessary to consider any other question presented by the record.

The judgment is reversed, and a judgment will be here entered discharging the appellant from further prosecution.