1 Blackf. 267 | Ind. | 1823
The Bank of Vincennes was incorporated, by an act of the territorial legislature, in 1814. When the state constitution was formed, its charter was recognized and confirmed-By an act approved January 1st, 1817, its capital and powers were enlarged, and it was adopted as the state hank of Indiana, In the session of 1821, it was suggested to the legislature, that the said banking company had violated their charter. Whereupon they passed an act, directing the governor to appoint an agent to cause suit to be instituted against them in the name of the state, in the Knox Circuit Court, by writ of quo warranto, or such other process as such agent should deem most advisable, for the purpose of determining whether they had violated their charter. Agreeably to the requisition of said act, an information in the nature of a quo warranto was filed, in the Knox Circuit Court, against the president, directors, and company of said bank. A summons was issued agaipst them. They appeared by their attorney, and pleaded the acts of assembly a
The defendants have brought up those proceedings by writ ^ error^ an(j assigned various errors in the record, which we shall severally examine.
1st. The judgment seizes on the corporate franchises, contrary to the act of incorporation, confirmed by the state constitution. — Reliance is here placed on that part of the act of 1814 which enacts, that “said corporation shall not be dissolved previous to the expiration of its charter, until all its debts, &c. shall be finally settled;” and also on the 10th article of the constitution, which says, “the Bank of Vincennes, and the Farmers and Mechanics’ Bank of Indiana at Madison, shall be considered as incorporated banks, according to the true intent and meaning of their charters.” In examining this part of the case, it may be premised, that this article of the constitution has no bearing on the construction to be given to the charter of this bank. It is intended to give the bank no new powers or privileges; but to continue its existence under the state government, with the same powers and privileges that it enjoyed under the territorial government. It recognizes it as a chartered bank, according to the true intent of its charter, the act of 1814. So that the claim of the plaintiffs in error' to an indissoluble corporation, must stand or fall on a fair construction of that act. By the first section of the act, the subscribers to the bank are made a corporation by the name and style of The President, Directors, and Company of the Bank of Vincennes, and to continue so until the 1st day of October, 1835; and the clause under consideration provides, that they shall not be dissolved before that time, until all their debts are paid. In determining whether those provisions have created an indissoluble corporation, we need not inquire into the power of the legislature to create such a body politic; nor have we any thing to do with the policy of such a measure further than this, that when a measure would be highly injurious we are not to presume the legislature would adopt it; therefore, in seeking the meaning of doubtful words in legislative acts, we should always presume the representatives of the people would pursue safe instead of dangerous measures. And the idea of a banking company, with a capital of a million and a half of dollars, created an indissoluble corporation
2dly. An information in the nature of a quo warranto is a mode of proceeding not warranted by the constitution. — That part of the constitution here supposed to be violated, is the 12th section of the 1st article, which provides that “no person shall be put to answer any criminal charge but by presentment, indictment, or impeachment.” We might answer this assignment by a reference to the long and uniform practice of the British Courts, authorizing proceedings by information for misdemeanors and minor offences, notwithstanding the language of magna charla, the grand palladium of English liberty, and the celebrated instrument from which this part of our constitution is copied; but we have no need of resorting .to the general doctrine on informations, for a quo warranto information is a criminal proceeding only in name and in form, in its nature it is purely a civil proceeding. See 2 Kyd on. Cor. 439. — The King v. Francis, 2 T. R. 484. In the language used in The King v. The Mayor, &c. of Cambridge, cited in 2 Kyd on Cor. 483, the corporation is called upon to answer to no crime or offence, but only touching its liberties. The primary and only material object of the proceedings, is not the infliction of pains or penalties as in criminal proceedings, but to deprive the individual members of the supposed corporation of privileges they claim to enjoy above the lot of the citizens in general. The fine inflicted on a conviction is merely nominal. It is so immaterial a part of the proceedings, that the books on the subject of corporations have almost lost sight of it. The conclusion of the judgment, it is true, is said to be with a capias pro fine. But this is more the form than the substance of the judgment, as in all civil actions founded on tort; for when the proceedings are by writ of quo warranto, the conclusion of the judgment is, that the defendants be in mercy, &c., as in civil actions founded on contract. 2 Kyd on Cor. 409. The fine authorized by the act of 1819, p. 156, to be inflicted in quo warranto informations, is not embraced by this case, as that act extends only to usurpations of office. So that, with us, the fine may be very properly left out of the case; and
3dly. The process should have been a distringas and not a summons. — But the practice is otherwise. A summons or venire facias is the usual process against corporations in the first instance^ and if the defendants fail to appear a distringas then issues. 2 Kyd on Cor. 404, 5. — Garth. 503. But the defendants have appeared and pleaded, and cannot now be heard to complain that a more rigid process was not issued against them.
4thly. The information is void for want of certainty as to time, place, &c. — Here the information and the replication containing the several breaches, are very properly considered as one instrument, and the objections are made to the charges as alleged against the corporation. The principal objection is, that no place is set forth where the usurpation, or the several transactions occasioning a forfeiture of the franchises, took place. It is urged in behalf of the state, that inasmuch as the object of the venue is to give jurisdiction to the proper Court, and jurisdiction is here given to the Knox Circuit Court by the act of assembly directing these proceedings, therefore a.venue was unnecessary. But it may be considered, that where the jurisdiclion over a transaction is local and important, the jurisdiction attaches the moment the transaction takes place; and that here a proper jurisdiction must have existed before the passage of this act; and if the Knox Circuit Court had no jurisdiction previously to the act of assembly, the propriety of changing the jurisdiction, by a legislative act, in a case where the state is a party, without the consent of the opposite party, might be deemed very questionable. We therefore feel disposed to conclude, that the legislature did not intend changing the jurisdiction, or even settling a doubtful question on the subject, but named the Knox Circuit Court as the place where the proceedings were to be had, from a belief that the charges alleged against the corporation were properly inquirable into in that Court. In this view of the subject, the question as to the venue remains unsettled by the act of assembly. In looking into the books we have seen no case where the point is expressly decided. The statutes of jeofails do not directly embrace informations, the 9th of Anne, ch. 20, sec. 7, excepted, -which only extends to the usurpation of corporate oifices. But they may be amended, as was the case in The,King v. Wilkes, 4 Burr, 2527; and quo waiv
This case, after Verdict, may be assimilated to a case in England after judgment by nihil (licit, where the-'-want of a venue is not error. 7 Bac, 48. It'is a general rulé,' that where a matter is of a transitory nature thé vende.is immaterial; and many of the transactions here charged,- as the contracting of debts, the issuing of paper, &c., may have taken place any where, and if they could be inquired of in any other county except where the bank is established, they might be inquired of in any county in' the state. But in this case we are not entirely without a venue. In the margin of the information we have “Knox county and circuit,” which may servé, though imperfectly, for a venue’through the whole case, although nowhere referred to in express words. Add to this, that the. record informs us that the Court for the trial of this cause was held" at Vincennes, in the Knox circuit. Then we have from the law and the record certain charges exhibited against ‘the president, directors, and company of the bank of Vincennes, the state bank of Indiana, originally established at Vincennes, in an information filed in the Knox Circuit Court — charges of such a nature as may be supposed to have taken place Where the bank was established, and transacted its business» This, being connected with the imperfect venue in the margin, if it will not render the venue perfect, will at least show that the defect is one of the lowest grades of informality. The time Mid other circumstances, in the description of the principal charges, appear to be certain to every common intent. There are several charges which are unimportant, and, from the manner in which they are laid, it might be doubtful whether they could be supposed to be a violation of the charter; but it may be remembered that if any one of the charges, which amounts to a violation of the charter, is sufficiently described, it will support the verdict. And we think the first, fifth, sixth, and ninth charges are described with all the certainty that could be expected from the nature of the transactions. We shall have occasion, hereafter, to examine whether any or all of those charges are sufficient to authorize the seizure of the franchises.
ñthly. There is no fine assessed to the state. — It has been already shown that the fine in this case is merely nominal. Its absence cannot be error. Even in the case of the usurpation of
Passing the sixth assignment for future remarks, and the seventh which is the general error, we shall now examine the eighth, viz. There is no charge contained in the information which in point of law warrants the judgment. — That a corporation may forfeit its charter for misusing or abusing its franchises, is a doctrine that cannot now be disputed. See 1 Bl. Com. 485. — 2 Kyd on Cor. 474, and the cases there cited. For there is an implied condition annexed to each particular grant, which, if violated, forfeits the whole franchise. 2Bac. 31. Inasmuch as it is the duty of corporations to act up to the end or design for which they were created; 1 Bl. Com. 480; so when they pursue such measures as wholly frustrate this design, the reason of’ their existence ceases, and it is but- just that their existence should also be terminated. Whether every slight deviation from the intention of the charter should occasion a forfeiture is not the question; but when the grand, leading conditions and restrictions in the charter have been violated, there can be no question but the franchises are thereby forfeited. Several of the charges, found by the jury against this corporation, are of' this nature, and show that they have evidently abused their most important privileges to the manifest injury of others and of the community in general. We shall examine a part of those charges. The eighth fundamental article of the constitution of said corporation is, that the total amount of debts which said corporation should at any- time owe, should not exceed double the amount of moneys actually deposited in the bank for safekeeping. And it is expressly found by the jury, that they were indebted on the 1st day of January, 1821 and at divers days and times between that day and the filing of the information, in a much larger sum than double the amount of moneys actually deposited in the bank for safe-keeping. This was unquestionably a violation of their charter. Although provision is made, in this, article, for rendering the directors under whose administration an excess of debts should be created, personally liable for the amount of such excess by action of debt, &c.; yet this violation of this article is no less chargeable against the corporation, than if no such provision had been made. It is also found.
9thly. The Court refused to instruct the jury that the evidence was insufficient to authorize a verdict of guilty. — A motion was made for the Court to instruct the jury to this effect, and on their refusál to give such instruction a bill of exceptions was filed, in which the whole of the evidence is set forth. We shall only examine so much of this evidence as relates to the charges we have just examined. It was proved by three witnesses, that the corporation was indebted in more than double the amount of money deposited with it for safe-keeping. Boudinot, one of those witnesses, deposes that such was the condition of the bank in 1821, and for two years previously thereto; and that they had lent out the money deposited with them by the United States. Beeman, another of those witnesses, deposes as to the debts of the bank being more than double the amount of their available funds, and that two dividends of profits had been declared since the bank refused to pay specie. And Prince, the other of those three witnesses, deposes that the fyank was indebted about 373,000 dollars, and had at the same time but 31 dollars in specie, and no other available funds; and that 208,000 dollars of that sum were due for money deposited by the United States.,- The testimony of these witnesses clearly establishes the several facts of the corporation’s being excessively indebted, making improper dividends, and embezzling the money deposited -by the United States. The charge of issuing more paper than they had the means of redeeming, is also put beyond a*
We now return to the sixth assignment, which is, That that part of the judgment which authorizes a seizure of the private property of the corporation, is repugnant to the constitution.— We are not able to discover that our constitution produces any alteration in the proper form of the judgment against such a corporation as this. There is notixing in this case that falls-within the seventh section of the first article of the constitution, “That no man’s property shall be taken for public use, without the consent of his representatives,” &c. If there are individuals, (as it is contended the stockholders are,) who have a separate property in the bank, and that sepai’ate property is of such a nature that it can exist independently of the corporation, or after it is dissolved, the judgment has no effect upon it; but the owner is entitled -to it, notwithstandingthejudgment, in the same manner he was before. But if it be contended that such a private property exists in the individual shareholders, as will be desti'oyed if the franchises of the corporation be seized; and, inasmuch as the private property is guarantied;
We have thus far examined the judgment which directs & seizure of the goods and chattels, rights and credits, lands and tenements, of the corporation, on the assumed position that they will necessarily fall to the state on the dissolution of the corporation; We shall now inquire into the correctness of this position. In order to elucidate the subject, we shall examine it in detail; and in the 1st place inquire, what becomes of the lands and tenements — 2dly, what becomes of the goods and chattels — and 3dly, what becomes of the rights and credits, of the corporation : and we shall find that each of these three items is governed by different principles. 1st. As to the lands and tenements. — “When a corporation is dissolved,” says Sir Wm. Blackstone, “the lands and tenements revert to the person or his heirs who granted them to the corporation; for the law doth annex a condition to every such grant, that if the corporation be dissolved, the grantor shall have the lands again. The grant is only during the life of the corporation, which may endure forever; but when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every other grant for life.” 1 Bl. Com. 484. This is the doctrine advanced by Lord Coke. Co. Litt. 13 b. See also 2 Kyd on Cor. 516, — 2 Bac. 32, — 2 Cruise, 493, — and Colchester v. Seaber, 3 Burr. 1866. We see but little in the books that contradicts or. questions those authorities, and the cases that look a different way, maintain that the lands would escheat. 2 Bac. 32. If either of those principles be correct, we feel warranted in determining that the corporate lands and tenements cannot be seized into the hands of the state, and certainly not in the manner contemplated by this judgment. 2dly. As to the goods and chattels. — On this subject the books are almost silent. In the argument of Colchester v. Seaber, it is said by Sir Fletcher Norton, on the authority of 1 Ro. Ab. 816, that the
Thus, in no view of the case, can that part of-the judgment which directs a seizure, into the hands of the state, of the goods and chattels, rights, credits, and effects, lands, tenements, and hereditaments of the corporation, be supported.
That part of the judgment which awards, that the privileges, liberties, and franchises of the defendants below, be seized into the custody of the state, is affirmed; and that part which awards, that their goods and chattels, rights, credits, and effects, lands, tenements, and hereditaments, be seized into the custody of the state, is reversed. To be certified, &c.