State of Ohio v. Granville Alexandrian Society.

Supreme Court of said county, in 1839, was a commencement of proceedings within the time prescribed by the act.

2. The passage of the resolution by the general assembly on which this information is filed, operates as an extension of the time within which this information may be filed, so far as this corporation is concerned.

3. The use of a privilege occasionally, or "from time to time," during a period of twenty years, is not such a user as can give a prescriptive right to the franchise, or bar a prosecution by order of the legislature. 4 Burrows, 2120; 3 Cruise's Dig. 310, 312. The defendants must show a continued and uninterrupted use and exercise of the franchise of banking, in order to claim it under the limitation of the law, and not an occasional and "from time to time" use.

The fourth plea is bad for generality. It specifies no act of the legislature upon which it predicates the claim of recognition. The matters claimed as a legislative recognition, in the fifth plea, are not sufficient. Such recognition should be direct *and positive. 2 New Hamp. 121; 10 Mass. 155; 3 Burrows, [6 1870; 3 Term, 232; 2 Johns. Ch. 320; 2 Mass. 133; 9 Ib. 352; 4 Pet. 502.

EWING & STANBERY, for defendants:

The information in this case is defective. The provisions of quo warranto law extend as well to natural persons as to corporations; and as this information is against the Granville Alexandrian Society, it should have been stated that this is a body corporate.

Again, the information is defective, because it is not averred that the principal office, or place of business of the corporation, is in the county of Licking, which is the venue of the action. The proceedings under the quo warranto act, whether against individuals or corporations, are local.

If the information is held to be sufficient, then it will be necessary to look into the further pleadings.

The question presented under the first plea is, simply, whether the defendants can found the right of banking upon their charter. Section 2 provides, "That the corporation be and hereby 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 interests of

State of Ohio v. Granville Alexandrian Society.

the corporation, provided that the express purpose of any gift or grant be answered.'

In considering the question of powers granted by this charter, in reference to what is called the banking franchise, it must be considered as of the time when the charter was granted.

This charter was granted on January 26, 1807. At that time the business of banking was not a franchise. Every person capable of contracting might become a banker. So, too, every corporation made capable of contracting, and not limited in the exercise of this power to any particular form or purpose, might do the same. It has never been held, either in England or the United States, that the business of banking was a franchise of 7] government, necessary to be granted to the subject *before it. could be lawfully exercised. 2 Johns. Ch. 377. All the legisla tion in both countries is restrictive of the pre-existing right to contract in that form.

At the time of granting this charter, there was no restraining law of the kind in Ohio. The first law of this kind was enacted not be so construed as to restrict the

in 1815. But that law can rights of this corporation. Those rights, having been vested in it by the act of its creation, could not be taken away by subsequent legislation.

This corporation was created, with unlimited power to contract, with a power equally unlimited of acquiring property, real or personal, and of disposing of such property in such manner as it shall deem most proper for its best interests. Under the power thus granted, it might engage in the business of banking. To sustain these positions, the case of this Corporation v. John Van Buskirk, decided by the Supreme Court of Licking county, in the year 1817, is referred to, and also the written opinion of Chancellor Kent; also the following cases: Taylor v. Miami Exporting Company, 6 Ohio, 176, and The People of New York v. The Manhattan Company, 9 Wend. 351.

The facts set forth in the third plea are sufficient to operate as a bar to this information, and those facts are well pleaded.

It is not double. The facts stated all conduce to one point, and to establish one proposition, the user of banking powers. Stephen's Pl. 262; 3 Chit. Pl. 1110; 4 East, 337; 6 Cowen, 216.

Reference was made, also, by the counsel to several acts of the

State of Ohio v. Granville Alexandrian Society.

legislature, and of the officers of the government, recognizing the Granville Alexandrian Society as a banking institution.

PARKER, Prosecuting Attorney, in reply, resisted the several positions assumed by defendants' counsel, and, at great length, argued to sustain the propositions by himself advanced in his opening argument. He cited the following authorities: 15 Johns. 384; 8 Cowen, 709; 1 Chit. 310, 311; 14 *Pet. 129; 2 Kent's [8 Com. 239, 240; 8 Ohio, 286; 9 Wend. 351, 383; 6 Cowen, 316.

Judge HITCHCOCK delivered the opinion of the court:

This case has been very fully and ably argued by the counsel, as well for the state as for the defendants. It is a case of importance, and presents several questions requiring the grave consideration of the court. These questions have been fully considered, and will now be noted, so far as is necessary for the disposition of the case.

Several objections are made to the information, the first of which is, that it is filed against the defendants by the name of the Granville Alexandrian Society, without averring that said society is a corporate body.

The law under which this information is filed, authorizes proceedings of this kind against natural persons and against corpo

rations.

Against natural persons:

"1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in any corporation, created by the authority of this state.

"2. When any public officer, civil or military, shall have done or suffered any act, which, by the provisions of this act, shall work a forfeiture of his office.

"3. When any association of persons shall act as a corporation, within this state, without being legally incorporated."

Against any corporate body, when any such corporation shall have:

"1. Offended against any of the provisions of the acts creating, altering, amending, or renewing such corporation.

"2. Whenever it shall have forfeited its privileges and franchises by non-user.

"3. Whenever it shall have done or committed any acts which

State of Ohio v. Granville Alexandrian Society.

amount to a surrender of its corporate rights, privileges, and franchises.

9] *4. Whenever it shall have misused any franchise or privilege conferred, or exercise any franchise or privilege not conferred upon it by law." Swan's Stat. 770, 771.

The complaint in this case being, in fact, against a corporate body, for exercising a franchise not conferred upon it by law, it would have seemed to be more consistent with correct pleadings to have averred that the Granville Alexandrian Society was a body corporate, in law. There is not, perhaps, the same necessity of so doing in this state, where the private as well as the public acts of the legislature are printed in the statute book, and sent forth to the people, and where the court takes notice of them without pleading, as there would be in those states where a different course of practice prevails. But still, had there been no precedent to the contrary, we might have been inclined to the opinion, that, for this omission, this information was defective. tion is framed after the precedent in the case of the People of But this informaNew York v. Utica Insurance Company, 15 Johns. 384. It is like the information in the case of the State of Ohio v. Commercial Bank of Cincinnati, decided at the present term, and which was held to be sufficient.

Another objection made to the information is, that, although the venue, in the margin of the information, is laid in Licking county, yet it is nowhere stated that the principal office, or place of business, of the defendants, was in that county.

We all concur in the opinion that it should appear that the .violation of the law complained of must have taken place in the county where the information is filed, and that it is equally necessary that it should so appear upon the face of the information, as it would be that it should appear in an indictment, that the offense complained of had been committed in the county where the indictment is found. The jurisdiction of this court, upon quo warranto, is confined to the county where the defendants have their office, or place of business. It is so expressly declared with respect to natural persons, and the same reason applies with respect to corporations. As to the question, whether this place of busi10] ness is sufficiently *alleged in the information, we do not entirely concur. The information, after stating (without any venue) that the society had used the franchises of becoming pro

8

State of Ohio v. Granville Alexandrian Society.

prietor of a bank, and of issuing notes, etc., concludes as follows: "And so the said prosecuting attorney, for the said State of Ohio, avers that the said Granville Alexandrian Society, during all of the time aforesaid, at Licking county aforesaid, hath, and still doth exercise, a franchise and privilege not conferred upon it by law, contrary to the form of the statute," etc. Some of the members of the court believe that this is sufficient, and that, although the venue is not technically, it is substantially, laid. And, as this is rather a technical objection, we should be unwilling to dispose of the case, upon this point, without further consideration.

Holding, for present purposes, that the information is sufficient, we will proceed to the examination of the further pleadings.

The defense relied upon in the first plea is, that by the act of incorporation, banking powers were conferred upon the Granville Alexandrian Society. If such be a fact, there is an end to the case. This act of incorporation was passed on January 26, 1807.

It must be admitted, that the purposes for which this act was passed, do not appear in the act itself. It is very short, and expressed in general terms. But the title is, "an act for incorporating a library society in the town of Granville, in the county of Fairfield." 5 Ohio Stat. 72. True, the title to an act does not constitute any part of the act, but it may be referred to, in order to explain what is doubtful in the act itself. And well may it be referred to in this case, where, without the titlo, it would be impossible to conjecture what object the legislature could have had in view. By reference to the title, we find the object to have been to incorporate a library association; and, in giving a construction to the act, this must be borne in mind. The powers granted were intended to be such as were necessary to effect this object. It is not reasonable to suppose that it was intended to grant any [11 other. If, however, others have been granted, it is not in the power of this court to restrain them, although it is in the power of the legislature to do it, for reasons which will be hereafter stated.

In section 1 of this act, it is enacted that certain individuals therein named, together with such others as shall be hereafter associated with them, shall be a body corporate, by the name of the "Granville Alexandrian Society," with the usual powers of contracting and being contracted with, of suing and being sued, of making by-laws, ordinances, etc.; "provided, said by-laws, ordi