Section 20 of article 4 of the constitution of the state, declares: “Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. But if any stibject shall be embraced in an act which shall not be expressed in the title.
For the complaint it is contended that under section 20 aforesaid of the constitution, said sections 8 and !), so far as they purport to apply to corporations, other than those mentioned in the title of the act, are void; and that the complainant being neither an “insurance,” “banking,” “express,” nor “exchange” corporation, is not embraced in the subject expressed in the title of the act, and therefore not within its constitutional purview.
The defendant contends that the complainant, being engaged in loaning money, is a banking corporation, ánd therefore within the purview of the act upon the complainant’s own construction of it; and that if this be held otherwise, still, the matter of requiring any foreign corporation to appoint a resident attorney for the purpose aforesaid being a matter properly connected with the subject expressed in the title of the act. said sections 8 and 9 are therefore valid and the mortgage made in disregard of them is not.
Is the complainant a “banking” corporation within the meaning of that term as used in the act of October 21, 1864? Nothing appearing to the contrary it is to be presumed that, the word “banking” is here used in its ordinary signification. It is not alleged in terms that the complainant is a banking corporation; but only that it is engaged in the business of loaning money in Oregon upon note and mortgage. Neither does it affirmatively appear whose money it loans, but the reasonable inference is, that it loans its own money, consisting of its capital stock contributed by its shareholders. Under the authorities, this is not sufficient to constitute the complainant a bank or corporation engaged in banking. The complainant having a certain fund, formed probably from the contributions or assessments of its shareholders, is engaged in loaning this fund — investing it in trust for these shareholders as its name implies — upon note and mortgage in Oregon and Washington. For this purpose it must be assumed, and no other, it was organized. Now, if this constitutes it a banker, then every individual who loans his private funds in like manner is a banker also. In Bank for Savings v. The Collector, 3 Wall. [70 U. S.] 512, it is said by the court that, “banks, in the commercial sense, are of three kinds, to wit: (1) Of deposit; (2) of discount; (3) of circulation. All or any two of these functions may, and frequently are, exercised by the same association.” To the same effect is the ruling in Oulton v. Savings Institution, 17 Wall. [84 U. S.] 118; German Savings &. Loan Soc. v. Oulton, [Case No. 5,362]; People v. Utica Ins. Co., 15 Johns. 390; Bouvier, verba “Bank.”
So far as appears, the complainant is neither engaged in the business of receiving deposits. discounting the notes of others, nor issuing its own for circulation. True, discount, is in effect, a mode of loaning money; and so far as the mischief intended to be guarded against by this act is concerned, the difference between loaning money by discounting the notes of third persons and doing so directly, upon the note and mortgage of the borrower, may be immaterial. But the difference itself is substantial, and according to established definitions, distinguishes between banking and the mere loan of money.
Upon the question whether said sections 8 and 9 go beyond the subject expressed in the title of the act there is not much room for argument. Thé judicial exposition of the con.stitution of the state belongs to the courts thereof; and thélr interpretation of that instrument furnishes the rule of decision for the national courts. The only time that section 20 of article 4, supra, has been before the supreme eouit of the state for construction is in Simpson v. Bailey, 3 Or. 516, where it is said that the object of the provision is “to prevent matters, wholly foreign and disconnected from the subject expressed in the title, from being inserted in the body of the act.” A more limited operation than this has not been claimed for the provision. It is a very necessary and wholesome restraint upon improper legislation, and ought not to be frittered away or unduly circumscribed in its operation by considerations of convenience or expediency. In Simpson v. Bailey,
The subject of this act as expressed in the title is the taxation and regulation of certain foreign corporations, of which the complainant is not one. The body of the act goes farther, and provides in effect that all foreign corporations, before doing business in this state, shall appoint a resident attorney therein. Is this regulation a matter properly connected with the subject expressed in the title? So far as the corporations named in the title are concerned, undoubtedly it is. Indeed, as to them, we may safely go farther, and say that it is a part of the subject expressed in the title — the regulation of “foreign insurance, banking, express and exchange corporations” doing business in Oregon. But as to corporations not so named the case is different. They are different and distinct subjects, and the regulation of them in any particular is not a mere matter which in some way pertains to and may therefore properly be connected with legislation concerning those named in the title. There is no relation or connection between the complainant and any of the corporations named in the title of the act, and therefore a regulation concerning it is not a matter properly connected with or incident to a regulation concerning them. Cattle, sheep and hogs are distinct objects. One does not pertain to or depend upon the other. But some regulation applicable to them all — for instance, concerning their going at large — might well be the subject of a legislative act. But an act entitled an act concerning sheep and hogs cannot contain a valid provision concerning cattle, because the latter has no connection with the former and is no part of the subject expressed in the title. In Mewherter v. Price, 11 Ind. 199, it was held that “an act concerning promissory notes and bills of exchange,” which contained a provision concerning “other instruments in writing,” was so far void, because the subject — other instruments in writing — was not expressed in the title. See. also, Cooley, Const. Lim. 149, and cases there cited. So in the case under consideration. The act is broader than the title, and so far is void. The subject of the act was restricted by the title to certain corporations of which the complainant is not one, and therefore no regulation concerning it can be embodied in ts^e act. The constitution has made the title the limit of what the act may contain, and the court has no power to enlarge its scope. When sections 8 and 9 were taken from senate bill 27 aforesaid and made applicable to all foreign corporations, by some oversight the title of the bill was not enlarged accordingly, and therefore so far as they go beyond the purview of such title they are void.
I trust it is not necessary to apologize for holding this act of the legislature partially void, or rather restraining the generality of the language of sections 8 and 9 thereof, so as to confine their operation within the scope of the title — the true index of the legislative intention. It is only to be regretted that the matter had not been first passed upon by the supreme court of the state, so that this court might have had an authoritative precedent for a guide. In a plain case like this it is as much the duty of the court to declare an act of the legislature invalid as to reform or set aside a contract for mistake or fraud. In so doing it but upholds and obeys that supreme law — the constitution — to which both courts and legislatures áre bound to conform their conduct. There must be a decree for the complainant for the relief sought.