State v. Williams

• Decision Date: 01 January 1852
• Citation: 8 Tex. 255
• Parties: THE STATE v. SAMUEL M. WILLIAMS AND OTHERS
• Court: Texas Supreme Court

8 Tex. 255

THE STATE

v.SAMUEL M. WILLIAMS AND OTHERS

Supreme Court of Texas.

1852.

Where an answer contains several distinct pleas, one of which presents a valid defense, and the plaintiff demurs to the answer without distinguishing between the pleas, it is not error to overrule the demurrer generally.

Where the plaintiff demurs to the answer it is not understood that he also joins issue upon the facts stated in it, as is the practice where no demurrer is filed; and in such a case, if the demurrer be overruled, the judgment goes for the defendant on the merits, unless the plaintiff should ask leave to amend or to join issue upon the facts stated in the answer.

A general demurrer by the plaintiff to the answer of the defendant brings the sufficiency of the petition before the court for adjudication; that is, the demurrer goes back to the first error in matter of substance, that would not be cured by verdict, committed by either party.

Where an offense unknown to the common law has been created by statute, whether the proceeding be by bill, information, or the common-law declaration, the same certainty is required in the specification of the fact or facts constituting the offense as in a bill of indictment. (Note 59.)

Exercising banking or discounting privileges is a statutory offense unknown to the common law.

The court disclaims any right or authority to give to the language of a penal statute any more lenient construction than would be its import in ordinary use.

Where the statute imposed a penalty on the exercise of “banking or discounting privileges” the court said: The charge contained in the petition is “kept their office and exercised banking privileges,” adding to the words of the statute “““kept their office,” and omitting “or discounting” between the words “banking” and “privileges” in the statute, thus materially departing from the language of the statute, more objectionable for the words omitted than for those added, as they formed a component part of the offense defined.

Where the statute imposed a penalty on the exercise of banking or discounting privileges, and in a subsequent section declared that each and every month during which the same should be exercised should be a separate offense, the court said: But the charge in the petition is still more defective, because, after setting out the offense as defined by the statute, it should have alleged with great particularity the specific fact or facts constituting the offense charged, the person or persons who had obtained the discount or discounts, and thus to have raised the foundation for proof that it had been so continued for the space of one month.

Appeal from Galveston. The petition in this case, after the introductory part, continued:

“The petition and complaint of the State of Texas, by John W. Harris, attorney general, would respectfully represent unto your honor that an association and a company of individuals, hereinafter to be called defendants, consisting of Samuel M. Williams, J. A. Reynolds, Jesse J. Davis, Jacob L. Briggs, Michael B. Menard, George Ball, Henry Hubbell, all of whom are residents of the said county of Galveston, (and consisting of others also, to petitioner yet unknown,) have, from and after the first day of May, eighteen hundred and forty-eight, until the second day of June, in the said year, that is to say, for the space of one month next from and after the said first day of May, 1848, kept their office and exercised banking privileges in said county and State without the authority of law, and have been thereby guilty of a misdemeanor, and are liable to a fine of five thousand dollars. Petitioner further represents that the said Samuel M. Williams is and was the president and a director of the said association and company; that the said J. W. McMillen is and was the cashier and a director thereof, and that the residue of the above-named defendants are and were the directors thereof, and that they, the said Williams, McMillen, and other named defendants, continued to be and to act in their capacities aforesaid from and after the said first day of May to the second day of June aforesaid: wherefore, in consideration of the premises, your petitioner prays that the above-named defendants and the other individuals who composed the residue of the said association and company from the said first day of May to the said second day of June, when discovered, may be made parties to this suit, and may be cited to appear at the next regular term of the District Court to be holden,” &c. Then followed a prayer for judgment.

The defendants answered:

“And the said defendants come and defend the wrong and injury when, &c., and as to so much of the petition of the plaintiff in the above-entitled cause as charges or alleges that these defendants, for the space of one month next from and after the first day of May, A. D. 1848, or at any other time, in the county of Galveston aforesaid, or elsewhere in this State, have exercised banking privileges without the authority of law, and have thereby been guilty of a misdemeanor, and are liable to a fine of five thousand dollars, these defendants deny the truth of the same, and say they are in nowise guilty in manner and form as is thereof in and by the said petition charged against them, and of this they put themselves upon the country.

By ALLEN and HALE, their attorneys.

And for further answer in this behalf, these defendants say that the State of Texas ought not to have and maintain its action aforesaid, thereof, against them, because they say that heretofore, to wit, on the thirtieth day of April, A. D. 1835, the territory belonging to the present county of Galveston aforesaid was embraced and included in the department of Brazos, then so called, in the State of Coahuila and Texas, then one of the United Mexican States, and that by an act or decree of the Congress of the said State of Coahuila and Texas, made and passed on the thirtieth day of April aforesaid, known as decree No. 308, a copy whereof, marked “Exhibit A,” is herewith filed as a part hereof, a bank was granted and authorized to be established in the said department of Brazos, to be called the “Commercial and Agricultural Bank,” which is the same as the “Bank of Agriculture and Commerce,” mentioned in the joint resolution hereinafter referred to, and the same as the “Banco de Commercio y Agricultura,” mentioned in the said decree, whereof the said Samuel M. Williams, as empresario, was authorized and required to take the proper measures in pursuance of the said decree and of the law of the land, which decree further provided, among other things, that a commissioner should be appointed by the executive previously intervening, who should furthermore examine every year the state of the concerns of the association or bank aforesaid.

And these defendants further say that afterwards, to wit, on the tenth day of December, A. D. 1836, by a certain act of the Congress of the Republic of Texas, entitled a “Joint resolution for the relief of Messrs. McKinney and Williams,” approved the 10th day of December aforesaid, it was, among other things, provided that the President of the said Republic should be authorized and required to appoint a commissioner for the purpose contemplated in the 10th article of the charter of the Bank of Agriculture and Commerce, granted to Samuel M. Williams by the Legislature of the State of Coahuila and Texas in April, 1835, in order that the parties might exercise and enjoy their privileges under the said act; and these defendants aver that the charter so named in the said joint resolution as aforesaid was and is the aforesaid decree No. 308; also that the said commissioner mentioned in said joint resolution was a like commissioner, and to be appointed for like purposes as the commissioner mentioned in the said decree, and that the Congress of the Republic of Texas, by their said joint resolution, recognized and adopted the said decree as a good and valid law, with all the immunities, franchises, privileges, and provisions therein or thereby conceded, granted, or contained.

And these defendants further say that, in conformity to the requirements of the said joint resolution, the president of the Republic of Texas did, on the _____ day of _______, A. D. 18--, subsequently to the passage of the same, appoint one Niles F. Smith as commissioner, for the purposes contemplated in the same; and that afterwards, to wit, on the 30th day of December, A. D. 1847, the subscribers to the capital stock of the said bank having joined for more than three thousand shares thereof, and the said shares being taken and paid for to the amount of one hundred thousand dollars, the said empresario, in pursuance of the requirements of said decree, called a meeting of the said subscribers on the said last-named day at the city of Galveston, in said county, which meeting was then and there duly held and attended as well by the subscribers as by the said commissioner, who then and there, in pursuance of his duties as such commissioner, examined the affairs and concerns of the said association, and counted the money then in the vaults of the said bank, amounting to the sum of one hundred thousand dollars as aforesaid, and certified the same in due form; and that at the said meeting on the day last aforesaid these defendants were duly elected directors of the said association, and that they then and there chose the said Samuel M. Williams as the president thereof, each and all of whom accepted the said office to which they were respectively elected and chosen as aforesaid.

And these defendants further say that, by reason of the premises and in manner aforesaid, the said Commercial and Agricultural Bank was then and there duly organized and established in accordance with the provisions of its aforesaid charter and of the law of the land, ever since which time the said bank has been and continued in lawful operation,...