People ex rel. Attorney-General v. River Raisin & Lake Erie Railroad Company

• Decision Date: 24 May 1864
• Citation: 12 Mich. 389
• Parties: The People on the relation of the Attorney-General v. The River Raisin & Lake Erie Railroad Company
• Court: Michigan Supreme Court

12 Mich. 389

The People on the relation of the Attorney-General v. The River Raisin & Lake Erie Railroad Company

Supreme Court of Michigan

May 24, 1864

Heard April 15, 1864; April 16, 1864 [Syllabus Material] [Syllabus Material]

Information in the nature of a quo warranto. The case was brought to a hearing on demurrer to the replication, and the pleadings are sufficiently stated in the opinion.

Order entered setting aside the plea for insufficiency.

Backus & Harbaugh and T. Romeyn, for defendants:

1. The plea is bad as being a departure in pleading.

The information charges solely the usurpation by the defendants of the franchise of banking, and on that ground alone asks judgment against them. This charge is distinctly traversed and put in issue by the plea; all the other matters set forth in the plea are mere inducement, and immaterial to the issue made by the traverse of banking, or no banking, charged in the information. This issue by the replication is abandoned, and a new charge set up therein; that of an admitted corporation violating a criminal law of the State by issuing bills in the similitude of bank-bills.

2. The replication sets up three distinct and independent facts: 1st. That the evidence of debt granted to J. Q. Adams, are in the similitude of bank-bills; 2d. That said J. Q. Adams was, at the time of granting said evidences of debt to him, president of said corporation, and said evidences of indebtedness were signed by him; and, 3d. That said evidences of debt were granted and issued to him with an intent that they should be put in circulation as money. Which of these three distinct propositions is issue to be taken upon? Which, if either, is material to the question of banking, or no banking? The replication is manifestly bad, not only as tendering an immaterial issue, but as double and uncertain.

3. The replication is bad in substance, even were the matters therein pleaded sufficient; for want of an averment of an intent, on the part of the defendants, that the evidences of debt should be put in circulation as money.

4. The only charge in the information, and traversed by the plea, is the usurpation of banking powers.

Banking powers have been defined to consist of issuing negotiable notes, discounting notes, and receiving deposits: People v. Utica Insurance Co., 15 Johns. 390; People v. Manhattan Co., 9 Wend. 383; 2 Cow. 710; Bouv. L. Dic., tit. "Banks and Banking."

All this is fully met and denied by the plea, distinctly putting in issue the charge alleged in the information.

This plea is wholly unanswered by the replication, which charges (insufficiently either for an information or plea)a new and distinct offense, created by section 5, chapter 50 of the R. S. of 1846, as amended by the S. L. of 1853, that of issuing evidences of debt in the form and having the appearance of bank-bills. The law under which this charge is made is in these words: "No person, association, or body corporate, whether public or private, except such bodies corporate as are or shall be expressly authorized by law to do a regular banking business, and to issue bank-bills, shall issue any bills, notes, due-bills, drafts or other evidences of debt, in the similitude of bank-bills, or to be loaned, or put in circulation as money, etc." The replication nowhere avers either that the defendants' corporation is not expressly authorized to do a regular banking business, and issue bank-bills, or that the defendants issued the bills, or evidence of debt, to be loaned or put in circulation as money. Such a charge would be bad in an indictment or information, and is equally bad in a plea: Koster v. The People, 8 Mich. 431.

In proceedings by information of quo warranto, facts necessary to be alleged to show a neglect of duty, must be set out with all the exactness of pleading required in an action for a penalty: 23 Wend. 198; 23 Wend. 223.

Where an offense is created by statute, and there is an exception in the enacting clause, the indictment must negative the exception: 11 Shep. 232.

Upon every principle, therefore, the replication is bad.

A. Williams, Attorney-General, and T. M. Cooley, for the people:

1. The plea is bad. The denial that defendants have used the franchise of a banking corporation, is coupled with an admission that, so far as issuing these certificates of indebtedness is concerned, they have done so. Issuing bills to circulate as money is the exercise of banking powers: 2 Cow. 710. But such powers never having been conferred, this corporation does not possess them: 2 Cow. 709; 11 Ohio 1; 11 Ohio 96; 15 Johns. 358. For the restraining act then in force see Laws of 1833, p. 530, copied from N. Y. Laws, 1804, p. 615. If the plea does not assert the right of banking, to the extent of issuing these bills, the facts it sets forth are immaterial.

2. There is enough on the face of the certificates to show that they were designed to circulate as money. They are in the form of bank-bills, signed by a cashier, payable to the bearer: 4 Edw. Ch., 138, 170; 9 Paige 471; 4 Barr 328.

3. The replication is not double. It presents the single point that the notes are issued with intent to be put in circulation as money. All the facts recited bear directly upon that point. The form they bear is not important as characterizing the intent: 15 Wend. 357; 1 Burr. 317.

4. The intent of defendants is charged in the same manner in which the intent is always charged in criminal cases. See forms, 2 Arch. Or. Pr. by Wat., 1, 5, 20, 25, 28, 33, 35, 180.

Campbell, J. Martin, Ch. J. and Christiancy, J. concurred. Manning, J. was absent when the case was decided.

OPINION

Campbell J.:

The attorney-general filed an information, charging defendants with usurping the following liberties, privileges and franchises, viz.: "That of becoming proprietors of a bank or fund, for the purpose of issuing notes, and transacting other business which incorporated banks may and do transact, by virtue of their respective acts of incorporation, and also that of actually issuing notes and carrying on banking operations, and other moneyed transactions which are usually performed by incorporated banks, and which they alone have a right to do;" and inquiring by what warrant they claim to use those franchises, etc.

The plea sets up the charter, and avers that under it the corporation was authorized, among other things, to "grant such evidences of debt which might be incurred by said company, as may be by the by-laws thereof directed, to such an amount as should be deemed necessary for the transacting of the business of the same:" "Provided such by-laws should not be contrary to the constitution or laws of the United States, nor of the State of Michigan." The plea proceeds to set forth certain by-laws requiring the president to sign, and the treasurer, as cashier, to countersign, all evidences of debt, which, by the same by-laws, were required to be in the form of a promissory note, payable to bearer on demand, at the office of the company in the city of Monroe; that from time to time large liabilities were adjusted by such evidences of debt, to the amount of $ 200,000; that one James Q. Adams became the owner of a large amount of these, and presented them for adjustment, and they were adjusted by issuing similar evidences for the principal and interest due him; and the plea then denies that the defendants have exercised any of the liberties, privileges or franchises charged by the information, "except as aforesaid;" and this they claim a right to do.

To this plea the attorney-general replied that the evidences of debt granted to Adams were granted and issued to him "in the form, and having the appearance of bank-bills, in sums of one dollar, two dollars, and three dollars, the same being printed from engraved plates of the size in which bank-bills are commonly issued, and with vignettes and other devices thereon which are usually found upon bank-bills;" that Adams was president, and signed the certificates of indebtedness as such, "and that the same were so granted and issued to him, with intent that they should be put in circulation as money," etc.

To this the defendants demur. 1st. Because they say the replication is a departure, the offense set up not being the same set forth in the information. 2d. For duplicity, as charging, (1) that the evidences of debt were in the similitude of bank-bills; and, (2) that they were intended to circulate as money. 3d. That it does not aver an intent in the defendants tha...