12 Mich. 389 | Mich. | 1864
The Attorney General filed an information, charging defendants with usurping the following liberties, privileges and franchises, viz: “That of becoming proprietors of a bank or fund, for the purpose of issuing notes, and transacting other business which incorporated banks may and do transact, by virtue of their respective acts of incorporation, and also that of actually issuing notes and carrying on banking operations, and other monied transactions, which are usually performed by incorporated banks, and which they alone have a right to do and inquiring by what warrant they claim to use those franchises, &c.
The plea sets up the charter, and avers that under it the corporation was authorized, among other thing's, to “grant such evidences of debt which might be incurred by said company, as may be by the by-laws thereof directed, to such an amount as should be deemed necessary for the transacting of the business of the same” — “Provided such by-laws should not be contrary to the constitution or laws of the United States, nor of the State of Michigan.” The plea proceeds to set forth certain bylaws requiring the president to sign, and the treasurer, as cashier, to countersign, all evidences of debt; which, by the same by-laws, were required to be in the form of a promissory note, payable to bearer on demand, at the office of the company in the city of Monroe: That from time to time large liabilities were adjusted by such evidences
To this plea the Attorney General replied, that the evidences of debt granted to Adams were granted and issued to him “in the form, and having the appearance, of bank bills, in sums of one dollar, two dollars, and three dollars, [the same being printed from engraved plates of the size in which bank bills are commonly issued, and with vignettes and other devices thereon which are usually ■found upon bank bills;’’ that Adams was president, and signed the certificates of indebtedness as such, “ and that the same were so granted and issued to him, with intent that they should be put in circulation as money;” áse.
To this the defendants demur; 1st, because they say the replication is a departure; the offense set up not being the same set forth in the information: 2nd, for duplicity, as charging, (1) that the evidences of debt were in the similitude of bank bills, ■ and (2) that they were intended to circulate as money: 3rd, that it does not aver an intent in the defendants that they should be put in circulation as money; 4th, that it does not admit, deny or traverse the plea; 5th, that the plea traversed the information, and the replication does not join issue upon it.
It is very well settled that, in an information in the nature of a quo warranto, it is not necessary to set forth the franchises and privileges alleged to be usurped, except in general terms. It is always the right of the Government to call upon those who assume corporate powers, to require them to show by what warrant they do so; and when the defendants set forth their claims by plea, the
The charter of the defendants authorized them to “ grant such evidences of debt which may be- incurred by said company, as may be by the by-laws thereof directed, to such an amount as shall be deemed necessary for transacting the business of the same.’ Sec. 11, p. 362, Laws of 1836. Their right to purchase, hold, sell, lease, and convey estate, either real or personal, or mixed, is expressly limited to “so far as the same may be necessary for purposes hereinafter mentioned, and no further.’’ Sec. 3, p. 359. Those purposes are strictly confined to the completion and maintaining of a railroad. Any banking business would be foreign to such a charter; and it is difficult to conceive how evidences of debt “necessary for transacting the business of the corporation ’’ could be made to embrace paper issued for general circulation, and payable on demand. In the absence of restriction, it 'is very possible that a corporation may use the same incidental means, to accomplish a given purpose, that might be used by an individual; but where it is confined to one kind of business, it can not lawfully engage in enterprises foreign to that business.
By the general laws in force at the date of this charter, it was provided that no person unauthorized by
We do not deem it necessary, for the purpose of testing the sufficiency of the pleadings in substance, to examine into our subsequent penal statutes, concerning unauthorized banking,- as, if the issue of this paper constituted an act of banking, it was not within the charter powers of defendants. We think the issue of paper designed to circulate in the form and similitude of bank notes is an act of banking, and is unlawful for the defendants. But it is objected that the replication is double, because it avers that the paper issued by defendants was not only in the similitude of bank notes, but \yas also issued with the intent that it should be put in circulation as money. Either of these allegations would be suf
When called upon to show by what warrant they assume to exercise any franchises, the defendants were bound either to deny the exercise of the franchises, or to show what franchises they possess of the kind set forth in the information, and their title to them. In this case the defendants set up all their claim under their charter. This is declared to be a public law, and being so we are bound to take judicial notice of it, and to disregard all allegations in conflict with it. We are bound therefore to take notice that the charter of the defendants gives them no authority to issue any paper within the restraining acts. They have set forth in their plea that they have issued certain paper which they describe. But that paper as described may or may not be . within the restraining acts. They therefore neither confess nor deny the exercise of banking powers, and the issue tendered by the plea is immaterial. Had they denied their exercise, the Attor
An order must be entered setting aside the plea for insufficiency.