State of Ohio v. Granville Alexandrian Society. nances, and regulations are not incompatible with the constitution and laws of the state; subject, however, to such rules and regulations, as the legislature, from time to time, may think proper to make." That part of the law relied upon as conferring the banking power is section 2. It provides, "that the corporation be, and they are hereby, made capable in law to hold any estate, real or personal, and the same to grant, sell, or dispose of; or to bind, by mortgage, or in such other manner as they shall deem most proper for the best interests of the corporation; provided, that the express purpose of any gift or grant be answered." Before proceeding to a careful examination of the powers here granted, it may be well to recur to the argument of defendants' counsel. It is not pretended, that, at this day, a grant of powers like these would confer the franchise of banking; but it is contended that, at the time this act of incorporation was passed, banking was not a franchise-there was no restraining law; and any individual, or any corporation, authorized to contract and be *contracted with; to hold, sell, and dispose of property, without restriction, might engage in this business. The case of Attorney General v. Utica Ins. Co., 2 Johns. Ch. 377, is referred to as an authority. The remark of the chancellor, in that case, is: "The right of banking was formerly a common law right, belonging to individuals, and to be exercised at their pleasure; but the legisla12] ture thought proper, by the restraining act, to take away that right from all persons not specially authorized. Banking has now become a franchise." He says nothing about corporations. It belongs to "individuals; " but it does not follow that it belongs to corporations. Individuals have natural rights; corporations have not. Although there was no restraining law in this state, at the time this act of incorporation was passed; and, although an individual might have engaged in this business, still, a corporation could not, unless the power was expressly granted; or, unless it was necessary, to carry into effect powers which were granted. The rule for construing acts of incorporation was the same then as now; and that rule is, " to consider corporations as having such powers as are specifically granted by the act of incorporation; or as are necessary for carrying into effect the powers expressly granted, and as not having any other." 2 Kent's Com. 298; 2 Cranch, 127; 4 Wheat. 636; 4 Pet 152; 8 Ohio, 286. State of Ohio v. Granville Alexandrian Society. Applying this rule of construction to the charter of the Granville Alexandrian Society, and it seems to us clear that the privilege of banking is not granted. The corporation has power to contract and be contracted with; and this power it must have, for its accommodation as a library association. It is made "capable in law to hold any estate, real or personal, and the same to sell, grant, or dispose of, or bind by mortgage, or in such other manner as they shall deem most proper for the best interest of the corporation; provided, that the express purpose of any gift or grant be answered." Here is no power of banking expressly granted. Is it necessary to carry into effect any of those powers which are granted? Beyond the power of contracting and being contracted with, it has power to hold property, real and personal; and it may "grant, dispose of, or sell the same." It is not necessary to exer. cise the power of banking in order to make contracts; or, in orde to "grant, dispose of, or sell" property. Or it may bind such property by mortgage; or it may bind it "in such other manner" as it shall deem most proper for the best interests of the corporation. *If, at the time of the passage of this law, there was a [13 mode of binding property, by exercising banking powers, as distinguished from binding by mortgage, well known and understood, then, possibly, by the grant of the power to bind property in such other manner, as the corporation might think proper, might be construed as granting, by implication, the power of banking. I can see nothing else in the law that would excite the least doubt whatever upon the subject. But it is said by counsel, that in 1817, this court was called upon to give a construction upon this act of incorporation; and that it was then holden, that it did confer banking powers; and we are referred to the case of the Granville Alexandrian Society v. John Van Buskirk. If our predecessors have, after full consideration, in fact determined the identical question now presented to us, we ought not lightly to overrule their decision. We have a manuscript report of that case, showing the pleadings, the facts, and the judgment of the court. The reasons for that judgment are not assigned. It appears that the action was upon a promissory note, given by the defendant to one Samuel Davis, and by him indorsed to the plaintiffs, for $250. The defense relied upon was, that the plaintiffs were a banking company, or association, that loaned money, and issued notes payable to bearer, contrary State of Ohio v. Granville Alexandrian Society. to the act of 1816, prohibiting the issuing and circulation of unauthorized bank paper, which act declares all notes discounted by such companies void. It was admitted by the plaintiffs, that they did loan money, and issue, by their officers, notes or bills payable to bearer, and had done so from 1815 to the time of trial; and that the note was discounted by them for the defendant; and that he received, for the note, the bills of the plaintiffs. It is said in the manuscript, that the only question made and argued, was, whether the charter of the plaintiffs authorized them to do a banking business. The case was submitted to the court at the August term, 1817. Judges Brown and Couch being present, it was taken under advisement, and finally decided in Belmont county, Judges Pease and Couch holding the court. Judgment was rendered for the plaintiffs. 14] *The case seems to have been considered by three of the then judges of the court; whether they all concurred in the judg ment finally rendered, we do not know. It was a decision made upon the circuit; for at that day there was no court in bank. Since the establishment of the court in bank, we have considered our own decisions, made upon the circuit, as of less authority than those made by a full court. In this decision, we have no evidence that more than two of the four judges concurred. The presumption is, that there was a difference of opinion; otherwise, why was the case taken under advisement? Taking all these circumstances into consideration, although the judgment of the court, in this case, would seem to have been predicated upon the supposition that the charter of the Granville Alexandrian Society conferred upon that corporation banking powers, we can not look upon it as an authority to justify us in so holding, when we do not, in our consciences, believe that any such powers were intended to be, or were, in fact, granted. It may not be improper to say, that the defense set up in that case, although it might have been a legal, was a most unconscionable, one. It was one which the court could not but have looked upon with disgust. The defendant had received that from the plaintiffs which had been as good and valuable to him as so much money, and he now undertook to shelter himself from payment, under a highly penal statute. Whether this consideration had any influence with the court pronouncing the judgment, I can not say. From my knowledge of the men, I am sure they would strive against any such influence. But that State of Ohio v. Granville Alexandrian Society. a strong desire to do strict justice between parties does sometimes lead courts away from strict law, there can be no doubt. It is a very common, and a very just remark, that hard cases frequently make bad precedents. We are also referred to the opinion of Chancellor Kent, upon the extent of the powers granted by his charter. That opinion, however, is based, not upon the charter itself, but upon the decision of the court above referred to. The chancellor, if adjudicating this case, would probably hold that decision obligatory. We do not, for the reasons already stated. *But even if we are wrong in supposing that the charter [15 of this corporation did not confer upon it banking powers, we think it is within the laws restraining banking. The first law of this kind was passed on February 8, 1815, and provides "that from and after the taking effect of this act it shall not be lawful for any individual, or company of individuals, to issue and put in circulation any note or order for the payment of money, struck or printed upon an engraved plate, and calculated to circulate as a bank bill or note, unless such individual shall be, by law, specially authorized so to do; or unless such company shall be incorporated by law for that purpose." 2 Chase's Stat. 868. There is no pretense that express power is conferred upon this society to do banking business; it is only by implication that it is claimed for it. This law, then, would be sufficient to restrict it in the exercise of this implied power; and it was passed before this power was exercised by this society. The next restraining act is the act of January 27, 1816, “to prohibit the issuing and circulating unauthorized bank paper. Swan's Stat. 136. This act prohibits the exercise of banking powers, except by "banks incorporated by a law of this state." It can hardly be pretended that the Granville Alexandrian Society is, within the meaning of this statute, "a bank incorporated by a law of this state." It is a society incorporated as a library society, claiming the implied powers of banking, which it is prohibited from exercising by this law. But it is said that if these restraining acts are construed to include this corporation, then so far they are unconstitutional, as taking away vested rights. That the legislature, having granted powers to a private corporation can not, consistently with the constitution, take away State of Ohio v. Granville Alexandrian Society. those powers, without any default on the part of the corporation, is too well settled by any who regard the stability of the law, the authority of judicial decisions, or the safety of our institutions And even where a corporation has violated its charter, it is rather a judicial than a legislative question whether such violation is a 16] cause of forfeiture. *But the legislature may, and in most, it not in all cases, it is well that they should, in the acts of incorporation which they pass, retain the power of modifying, changing, and altering, as occasion may require. They have done it in the charter of the Granville Alexandrian Society. The corporation is created, and the powers granted, "subject, however, to such rules and regulations as the legislature, from time to time, may think proper to make." Can there be any doubt that, under this saving clause, the legislature would have had the power, on the day on which they passed these restraining laws, by a private act, to have said that this corporation should not exercise banking powers and privileges? We think not. And if the coporation would have been bound to obey a private law of this character, it certainly should be bound to obey a general law intended to effect the same object. It has been argued by defendant's counsel that there has been, so far, a recognition, by the supreme power of the state, of the power of this corporation to exercise the banking franchise, as, in fact, to confirm to it the right. There is force in the argument, and it would seem difficult to escape the conclusion that the authorities of the state have considered this as a banking institu tion. It has been so treated by the auditor of state and by the banking commissioners. It has paid a tax like the other banks, since this tax has been appropriated by the legislature. The state, by its agents, have borrowed money of it to carry on its public works, and although, by the reservation in the charter, the legislature might, at any time, have passed a law prohibiting it from issuing paper or exercising banking powers, it has done nothing of the kind, except what is contained in the general restraining law. The only act ever done by the general assembly, so far as we know, manifesting dissatisfaction at the course pursued by this corporation, was the adoption of the joint resolution directing the information in this case to be filed. Still, it seems to the court that these things can not properly be taken into consideration in deciding upon the validity of the first plea of the |