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Watkins v. Collins........... 31 Wolcott, Crawford V............ 145 Wells, Ohio V.........

261 Woodward y. Suydam and BlyWilliamsburg Township

denburg.............

360 Jackson ....

37 Woods et al. v. Dille et al......... 455 Williams v. Bosson............... 62 Wilcoz and Welch v. Kellogg

Z. and others

394 Wishart, Carlisle V.................. 172 Zanesville and Maysville TurnWise and others, Betts V.......... 219 pike Co., Talmadge V............ 197

CASES

ABGUED AND DETERMINED IN THE

Supreme Court of Ohio,

IN BANK,

DECEMBER TERM, 1841.

PRESENT:

EBENEZER LANE, CHIEF JUSTICE.
REUBEN WOOD,
PETER HITCHCOCK, JUSTICES.
FREDERICK GRIMKE,

THE STATE OF OH10 v. THE GRANVILLE ALEXANDRIAN SOCIETY.

A grant of power, in an act of incorporation, “to hold any estate, real or per

sonal, 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," does not confer upon such corporation banking

privileges. Under the clause, in an act of incorporation, that the action of the corpora

tion shall be “subject to such rules and regulations as the legislature, from time to time, may think proper to make,” the general assembly may restrict such company from exercising the franchise of banking. VOL. XI-1

1

State of Ohio v. Granville Alexandrian Society.

This is an information in the nature of a quo warranto, to ascer. tain by what authority the defendants exercise banking powers.

The information was filed in August, 1810, and charges, “ that the Granville Alexandrian Society, for twelve months previous to 2] filing the information, and more, havo and still do *use, with out any warrant, charter, or grant, the following liberties, privi. leges and franchises, not conferred upon it by law, to wit: that of becoming the proprietors of a bank or fund, for the purpose of issuing notes, receiving deposits, making discounts, and trang. cating other business, which incorporated banks may and do transact, by virtue of their respective acts of incorporation, and also that of actually issuing notes, receiving deposits, making discounts, and carrying on operations and other moneyed transactions, which are usually perlormed by incorporated banks, and which they have a right to do; of all which libertios, privileges, and franchises aforesaid, the said Granville Alexandrian Society, during all the time aforesaid, usurped, and still do usurp, upon the State of Ohio, to its great damage and prejudice; and so the said prosecuting attorney of the said State of Ohio avers, that the said Granville Alexandrian Society during all the time aforesaid, at Licking county aforesaid, hath and still does exercise a franchise and privilege not conferred upon it by law, against the peace and dignity of the State of Ohio, and contrary to the forms of the statute," etc.

To this information the defendant has filed several pleas:

1. The first plea sets forth that the defendants were, on January 26, 1807, created, by the legislature of Ohio, a body corporate and politic, with perpetual succession, by the name and title of " The Granville Alexandrian Society," capable, in their corporate capacity, of suing and being sued, etc.; to have a common seal, etc.; and power to ordain, establish, and put in execution such by-laws, ordinances, and regulations as they should deem most proper for the good government of the corporation ; provided such by-laws, ordinances, and regulations are not incompatible with the constitution and laws of this state. The plea then sets out the second section of the act of incorporation, and claims to exercise banking privileges, hy virtue of said charter.

To the first plea there is a demurrer, assigning for cause: That the act of the general assembly, passed January 26, 1807, entitled S] "an act for incorporating a library society in *the town of

State of Obio v. Granville Alexandrian Society.

Granville, in the county of Fairfield,” confers no banking privileges on said society, as is falsely claimed.

2. The second plea sets out that the society, under their act of incorporation, commerced banking on August 1, 1815, and continued to issue notes, receive deposits, etc., for a period excoeding twenty successive years prior to March 17, 1838.

To this plea there is a replication, a rejoinder to the replication, and issue joined to the country.

3. The third plea, after setting forth the incorporation of the “Granville Alexandrian Society," states, “ That defendants, in virtue of said act of incorporation, and acting thereunder, beretofore, to wit, on August 1, 1815, at the town of Granville aforesaid, established a bank, in the name and by the authority of the corporation, and became the proprietors of a fund for the purpose of issuing notes, receiving deposits, and making discounts, and transacting all other banking business, and did then and there, in their corporate name and authority, issue notes, receive deposits and make discounts, and use and transact all other banking business; and that from the 1st day of August aforesaid hitherto, and for more than twenty years sucoessively next preceding March 17, 1838, have, from time to time, issued notes, received deposits and made discounts, and transacted other banking business; and, during all said time have, without intermission, kept up by election and swearing into office of their directors and other officers, their organization as a bank; and upon all dividends by them declared in their banking business have paid the lawful tax to the State of Ohio, as a banking corporation, to wit, at Granville aforesaid,” etc.

To this plea there is a demurrer, assigning for causes :

1. That the election and swearing in officers“ during a period of twenty years," etc., is not such a user of a franchiso as con fers the right.

2. The payment of a tax on dividends confers no privileges on the society.

*3. Having" from time to time," during a period of twenty [4 years, issued notes, etc., is not such a user as confers the right tɔ bank.

4. Said plea is double in this, that it assigns three distinct causes of defense.

5. Said plea is otherwise defective, etc. 4. The fourth plea refers to the charter; states the commence

State of Ohio o. Granville Alexandrian Society.

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ment of banking, as in the third plea, and avers that after said commencement and before the commencement of this prosecution, to wit, on March 18, 1839, the legislature did recognize and fully acknowledge the right of defendants to bank.

To this plea there is a general demurrer.

5. The fifth plea sets out the charter, etc.; states the commencement of banking, as before, and specifies the recognition by the legis. lature to be by the appropriation of the sum of $156.20 (which bave been drawn for by the auditor of the state, and paid by the bank as a tax upon a dividend), to the common school fund, in the gen. eral appropriation, and passed March 18, 1839,“ together with other money in said act named."

To this plea there is a special demurrer, and the causes of demurrer are :

1. That the draft of the auditor of state for tax on dividends is is not a recognition of the assumed power of the society.

2. Payment of said tax to the treasurer is not a recognition.

3. The appropriation by the legislature, in the act referred to, does not amount to a legislative recognition.

PARKER, Prosecuting Attorney, for the state:

In support of the demurrer to the first plea, it is denied that the intention of the legislature, in incorporating the Granvillo Alexandrian Society, was to confer banking privileges; neither does the 5] charter confer such privileges. This will be apparent *if tho ordinary rules for the construction of statutes are adhered to. 6 Bac. Ab. 384,391; 15 Johns. 380, 383, 387; 4 Term, 793; 1 Atk. 174.

Corporations are artificial beings, existing only in contemplation of law, and possessing only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its existence. 14 Pet. 129; 2 Kent's Com. 298, 240; 2 Cranch, 127; 4 Wheat. 636; 4 Put. 152; 15 Johns. 358, 384; 3 Pet. 232; 8 Ohio, 257, 287; 2 Kent's Com. 240.

In support of the demurrer to the third plea, it is contended that the Granville Alexandrian Society can not avail itself of the limitation in the act “relating to information in the nature of a quo warranto, and regulating the mode of proceeding therein," for the following reasons:

1. The application for leave to file an information, by the prosecuting attorney of Licking county, at the September term of tho

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