Dupee v. Swigert

Citation127 Ill. 494,21 N.E. 622
PartiesDUPEE et al. v. SWIGERT, Auditor.
Decision Date05 April 1889
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Oririnal petition for mandamus.

CRAIG, C. J., and SHOPE, J., dissenting.

Chas. A. Dupee, for petitioners.

George Hunt, Atty. Gen., for respondent.

MAGRUDER, J.

This is a petition for a mandamus by Charles A. Dupee and others against the state auditor, to compel him to issue to the petitioners ‘a permit to organize’ a bank in the city of Chicago, which has a population of more than 10,000 persons, under. ‘An act concerning corporations with banking powers,’ passed by the legislature of Illinois, and approved June 16, 1887, (Laws Ill. 1887, p. 89.) The auditor refused to grant permission to organize under the act upon two grounds, as set up in his answer to the petition. The first ground is that the act in question does not apply to cities having a greater population than 10,000; the second is that the provision of the act in regard to the liability of the stockholders is unconstitutional. We think that both the reasons assigned for the refusal are insufficient, and that the permission applied for should have been granted.

The contention that no bank can be organized in any city whose population exceeds 10,000 is based upon the first clause of section 11 of the act, which reads as follows: ‘Associations may be organized under this act in incorporated towns, villages, or cities of not to exceed five thousand population, with a capital stock of not less than $25,000, and in all cities, villages, or incorporated towns of not to exceed ten thousand population, with a capital stock of not less than $50,000.’ Evidently the design of this clause was to fix a minimum of capital for towns, cities, and villages having a certain designated amount of population, but, when considered in connection with the rest of the act, it does not restrict the organization of banks to towns, cities, and villages whose population does not exceed 10,000. The first 10 sections of the act are general in their nature, and express a general intention on the part of the legislature to provide for the formation of banks and banking associations anywhere in the state, in cities having a population greater than 10,000, as well as in those having a less population. The first section says: ‘It shall be lawful to form banks and banking associations for the purpose of discount and deposit,’ etc. Here is no designation of particular cities to which the formation of banks is to be confined. If the construction contended for be correct, the first section would have said: ‘It shall be lawful to form banks and banking associations for the purpose of discount and deposit, etc., in the towns, cities, and villages having the amount of population hereinafter designated.’ Again, section 1 provides ‘that, on a ratification of this act by a vote of the people in accordance with the constitution of this state, it shall be lawful to form banks and banking associations,’ etc. The provision of the constitution here referred to is section 5, art. 11, which directs that no act of the general assembly, authorizing or creating associations with banking powers, shall go into effect, ‘unless the same sahll be submitted to a vote of the people at the general election next succeeding the passage of the same, and be approved by a majority of all the votes cast at such election for or against such law.’ There can be no doubt that the ‘vote of the people contemplated by this provision of the constitution is the vote of the people of the whole state, and not of particular localities in the state. In other words, any statute which authorizes the formation of banking corporations must be approved by the votes of the people of the state at large. It follows that the intention of the legislature to submit the act of June 16, 1887, to the votes of the people to the whole state, is manifested by the language used in the first section of the act. The petition in this case avers, and the answer admits, that the act in question has been ratified by the votes of the people of the whole state.

But why ask all the people of the state to vote upon a measure which could only interest a part of the people? If the law under consideration was only to be in force in cities whose population should not exceed 10,000, why submit the question of its adoption to the large doby of people living in cities having a greater population than 10,000? The latter could have no special interest in the organization of banks of discount and deposit in cities having a population of only 10,000 or less. It might be otherwise if the banks to be formed were to be banks of issue, but the act in question confers no power to issue bills to circulate as money.

Section 5, art. 11, of the constitution, unquestionably contemplated that the banking acts, which were thereby required to be submitted to the votes of the people of the state, should be acts sufficiently general in their character to be of interest to all the people of the state, and to be applicable in all parts of the state. That the intention of the legislature in the passage of the act of June 16, 1887, was to make its provisions general enough to apply to cities having a greater population than 10,000, as well as to those having a less population, is apparent from the provision made in section 1 of the act for its ratification by a vote of the people in accordance with section 5, art. 11, of the constitution. Section 2 of the act provides that, ‘when any associations of persons desire to avail themselves of the provisions of this act, they may apply to the auditor for permission to organize, stating their place of business,’ etc. What language could be more general than this? Those desiring to organize are not required to state in what city, town, or village, having a population of 10,000 or less, their place of business may be located. They are required to state their place of business, whether it be in a city containing a greater or a less population than 10,000. The ‘association of persons' which is authorized to apply for permission to organize is ‘any association of persons,’ whether living in a city of 100,000 inhabitants or in a city of only 10,000 inhabitants. The third section provides for subscriptions to the capital stock, and for the election of directors; the fourth, for the organization of the board of directors, the appointment of officers, fixing salaries, making by-laws, taking by the directors of an oath prescribed by the auditor, keeping books of record, and furnishingcopies of the same and lists of the stockholders to the auditor, etc.; the fifth section provides for an examination by the auditor into the affairs of the bank after the directors have organized, and the capital stock has all been paid in, for the issuance of the auditor's certificate under seal authorizing the association to commence business, for the recording of said certificate, which is made evidence in all courts of the existence and authority of the corporation to do business, which said fifth section closes with the following words: ‘Upon the recording of said certificate and permit said bank shall be deemed fully organized, and may proceed to business;’ the sixth section provides for the liability of the shareholders; the seventh, for the making under oath and publication of quarterly reports to the auditor as to the resources and liabilities of the bank; the eighth section provides for examinations by the auditor into the affairs of the bank at least once in each year, or oftener, together with power to examine the officers, agents, etc., under oath; the ninth section provides that associations under the act may be bodies corporate and politic, with power to sue and be sued, to have a common seal, to own real estate necessary to be used in carrying on business, etc.; the tenth section fixes the limit to which the association shall be confined in lending its funds, etc. It will thus be seen that, before the eleventh section is reached, the first 10 sections provide in general terms for the organization of banks, and prescribe all the machinery for such organization. ‘Where a general intention is expressed, and the act also expresses a particular intention incompatible with the general intention, the particular intention is to be construed in the nature of an exception.’ Potter's Dwar. St. 117. A general intention to permit the organization of banks in all the cities of the state is expressed in the first 10 sections, and, if any particular intention is expressed in the first clause of section 11 which is incompatible with such general intention, it is to be construed as an exception thereto. The words of section 11, as above quoted, are words of limitation and restriction, and not words of grant. But the limitation has reference to the capital stock, and not to the location of the bank. The clause in which the words of limitation...

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17 cases
  • Chicago, B.&Q.R. Co. v. Jones
    • United States
    • Illinois Supreme Court
    • April 2, 1894
    ...be entirely valid as to some classes of cases, and clearly void as to others.’ Cooley, Const. Lim. (6th Ed.) pp. 211, 213; Dupee v. Swigert, 127 Ill. 494, 21 N. E. 622. An examination of the act of 1873 in the light of these principles of construction will show that parts of the act relate ......
  • Simpkin v. City of Rock Springs
    • United States
    • Wyoming Supreme Court
    • June 18, 1925
    ... ... electors; Koehler v. Hill, (Iowa) 15 N.W. 609; ... People v. Draper, 15 N.Y.S. 532; Dupee v ... Swigert, (Ill.) 21 N.E. 622; Dred Scott v ... Sanford, 60 U.S. 393; Boyd vs. Nebraska, 143 ... U.S. 135; Walnut v. Wade, 103 U.S ... ...
  • People v. City of Chicago
    • United States
    • Illinois Supreme Court
    • July 26, 1932
    ...such provisions are engrafted upon every law relating to the organization of corporations of the kind therein referred to. Dupee v. Swigert, 127 Ill. 494, 21 N. E. 622. In any event, it was unnecessary for the Legislature to include in the act of 1929 any of the provisions of sections 9 to ......
  • Golden v. Golden
    • United States
    • Illinois Supreme Court
    • June 8, 1917
    ...which seems at first blush clearly not to impose such liability, so much as upon the expression of the court in the case of Dupee v. Swigert, 127 Ill. 494, on page 505, 21 N. E. 622, on page 625, that: ‘Under the section of the Constitution thus quoted, every stockholder is liable for the d......
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