| N.D. | Oct 20, 1890
Defendant’s return to the writ shows that the relator is detained in defendant’s custody, as sheriff of Kidder county, by virtue of a certain warrant of commitment for the alleged offense of doing business as an individual banker, contrary to the provisions of § 27 of the act entitled “ An act to provide for the organization and government of state banks.” Chapter 23, Laws of N. Dak. 1890, p. 106. Section 27 of the act reads as follows: “It shall be unlawful for any individual, firm, or corporation to continue to transact a banking business, or to receive deposits for a period longer than six months immediately after the passage and approval of this act, without first having complied with, and organized under the provisions of this act. Any person violating the provisions of this section, either individually or as an interested party, in any association or corporation, shall be guilty of a misdemeanor, and, on conviction thereof, be fined not less than, five hundred (500) dollars, nor more than $1,000, or imprisonment in the county jail not less than ninety days, or either, or both, at the discretion of the court.” The other provisions of the statute need not be quoted. For the purposes of this case, it will suffice to state that the statute contains thirty sections, which, taken together, provide fully and minutely for the organization and government of banking corporations in this state. By its terms, the business of con
"While not assailing the whole act as unconstitutional, the relator contends that § 27, above quoted, so far as it concerns individuals or firms doing business without incorporation, contravenes both the federal and state constitutions. Counsel for relator cite §1 of article 1 of the state constitution, and also §.l of the fourteenth amendment of the constitution of the United States, and claim that the relator’s constitutional rights and personal liberty, as secured by these organic acts, have been ruthlessly violated and taken away by § 27 of the statute, for the reason that the section, among other things, prohibits individuals from carrying on the business of banking in a private capacity, and punishes all who violate the prohibition. This contention of the relator was urged .with great learning and ability by the eminent counsel representing the prisoner, but we find no support in the authorities cited for the relator for the contention. It is true that it has been held that the provision relative to personal liberty found in our constitution might be 'violated by the enactment of a statute which operated to deprive a citizen of the right to pursue a lawful trade o'r avocation. In re Jacobs, 98 N.Y. 98" court="NY" date_filed="1885-01-20" href="https://app.midpage.ai/document/matter-of-application-of-jacobs-3598821?utm_source=webapp" opinion_id="3598821">98 N.Y. 98; People v. Marx, 99 N.Y. 377" court="NY" date_filed="1885-06-16" href="https://app.midpage.ai/document/the-people-v--marx-3599831?utm_source=webapp" opinion_id="3599831">99 N. Y. 377, 2 N. E. Rep. 29. Put, on the other hand, it is conceded that the business of banking, by reason of its very intimate relations to the fiscal affairs of the people, and the revenues of the state, is and has ever been considered a proper subject of legislative control, and strictly within the domain of .the internal police power of every state. As a matter of fact, we have been unable to find an authority, and we have searched diligently, which has ever
Morse, in his treatise on Banking, (2d Ed. p. 1), uses the following-language: “At common law the right of banking pertains equally to every member of the community. Its free exercise can be restricted only by legislative enactment; but that it legally can be thus restricted has never been questioned. After laws upon the subject have been passed, the business must be undertaken and conducted in strict accordance with all the provisions contained in them. It is not in its nature a corporate franchise, though it may be made such by legislation, and individuals may be prohibited from transacting it, either altogether in all its departments or partially in any specified ones. A law wliich forbids the carrying on of ‘any kind of banking business’ is a total prohibition against each particular department of the business, though conducted singly, and may be infringed equally
The relator further contends that said § 27 is unconstitutional for the reason that it violates the provisions of § 61 of the state constitution, which reads as follows: “No bill shall embrace more than one subject, which shall be expressed in its title; but a bill which violates this provision shall be invalidated thereby only as to so much thereof as shall not be so expressed.” Belator’s contention is that § 27, in prohibiting and punishing private banking, does not relate to the subject-matter of the act as expressed in its title. There is absolutely nothing in this point. The subject of.the law, as expressed in the title, is “State Banks;” but that subject includes and comprehends not only state banks, but all other banking in the state which is related to state banking. In creating state banks, and providing for their government, the law makes the business of banking a-corporate franchise; and to prohibit and punish all other banking is, in our opinion, strictly auxiliary to that subject-matter. Similar constitutional provisions may be found in most, if not all, of the states, some of the states using the word “object” instead of “subject,” as it appears in our constitution. This provision is intended to forestall what Judge Cooley denominates “log-rolling” legislation, and prevent legislation not fully understood by members of the legislature, as well as to prevent all surprises or misapprehensions on the part of the public. But it has been uniformly held that such provisions should receive a reasonable and not a technical construction, and that no matter should be held to invalidate a