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nal, however, it is impossible to learn the precise views of the majority of the court on the subject. The strongest argument was probably the argumentum ad inconvenienti growing out of the capital already invested in the free banks. See the result of the decision stated in Gillet vs. Moody, 3 Comst., 485.

In Purdy vs. The People, 4 Hill, 384, the case was whether a law altering the charter of the city of New York was constitutionally passed, it not having received a vote of two thirds of the members of both houses. The court decided that the law was void; and language was used which has been often relied on as going to show that all corporations being within the constitutional prohibition, it necessarily followed that the banking associations were not corporations; but the only point really decided was, that municipal corporations came within the constitutional restrictions upon the creation of corporations. See The People vs. Purdy commented on in The Supervisors of Niagara vs. The People, 7 Hill, 510.

In The Supervisors of Niagara vs. The People, 7 Hill, 504, it was, however, finally decided that the associations under the act of 1838 were "monied or stock corporations" within the meaning of statutes passed long anterior to the act of 1838, subjecting such corporations to taxation on their capital. Senator Porter, in delivering the prevailing opinion of the court, said it was obvious that Warner vs. Beers, and Purdy vs. The People, decided only that the banking associations were not corporations within the spirit and meaning of the State constitution, and that municipal corporations were embraced in the State constitution; for the purposes of the principal case, he was of opinion that the banking associations were corporations within the tax laws. For that purpose, however, he went into an elaborate investigation of the principal points of difference between corporations and partnerships, and insisted that the free banks were evidently endowed with a corporate character.

The decision of this involved question may be stated to be, that the free banking associations are corporations to all intents and purposes; but that the intent of the State Constitution being to impose restraints on special grants of privilege, and these associations being, on the contrary, a modified form of free banking, they did not come within the spirit of the constitution as if the constitutional clause had stood, "Corporations shall not be created unless, &c., provided the charters contain any exclusive grants of privilege." See Gillet vs. Moody, 3 Com, 485, for C. J. Bronson's statement of the result of the controversy.

The question, however, still remains, assuming these institutions to be corporations, how far they are subject to the details of the old system devised to regulate chartered banks. In The matter of the Bank of Dansville 6 Hill, 370, it was endeavored to apply to the free banks the provisions of the Revised Statutes (I. 598) which gave the Supreme Court power, by summary proceeding, to review the elections of the specially-chartered institutions. It was insisted that the free bank in question was a corporation; but the summary jurisdiction was denied on the ground, among others, that "the only monied corporations in existence at the time those powers

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were conferred, were such as had an organization prescribed by law." A board of directors or trustees was provided by the old charters, elected at stated periods, and for a stated time, and in a specified manner; whereas the general banking law provided in terms for no other officers than a treasurer and cashier; and it was said that it could not be supposed that the legislature intended the court should have a summary jurisdiction over the contracts upon which the banking associations were organized under the free banking law.

In Gillet vs. Campbell, 1 Den., 320, it was held that an assignment by the president and cashier of part of the effects of a free bank exceeding $1,000 in value, did not come within the 8th section of the statute to prevent the insolvency of moneyed corporations, and that the assignment was valid although not authorized by a previous resolution of the board of directors. But the decision has been questioned by the same learned judge who delivered it. See Gillet vs. Moody, 3 Coms., 486.

Gillet vs. Moody, 3 Comst., 479, was a bill filed by a receiver of a banking association against a stockholder and director to set aside a transfer of certain state bonds made in exchange of his stock, and which came within tit. ii. art. 1, § 1) declaring it unlawful for the directors of any monied the terms of the provisions of the Revised Statutes (part i. ch. xviii. corporation to divide, withdraw, or in any manner pay to the stockholders or any of them any part of the capital stock, &c., or to reduce the capital stock, without the consent of the legislature, and; it was held by the Court of Appeals that the banking associations were not corporations in any qualified sense, as within the intent and meaning of some particular statute, but corporations to all intents and purposes; and that the transaction was illegal and void, although a doubt was intimated whether the provisions of the 10th section applied to the directors, personally. It may be noticed that in this case it was also held that stopping payment by a bank is prima facie evidence of insolvency; and also that the title of the Revised Statutes in regard to moneyed corporations was a beneficial statute, not to be defeated by a narrow construction.

Talmadge vs. Pell, 3 Seld., 328, was a bill filed to set aside an operation in stock, on the ground that traffic in stock did not come within banking power. The transaction was held illegal on that ground, and it was further held that the free banking associations were moneyed corporations, and as such liable to all general laws relating to that class of corporations, except in so far as those laws or some of their particular provisions have been modified or superseded by, or are inconsistent with, the free banking act of 1838.

In Tracy vs. Talmadge, 18 Barbour, 456, Mr. Justice Roosevelt, who was in the legislature in 1838, and who is very familiar with the whole matter, said, speaking of this subject, "The only question is, Did the legislature in forming these associations, or rather in authorizing their self-formation, intend that certain penal provisions of law previously enacted to govern the action of chartered banks, undisputed corporations,

should apply to these new forms of limited partnership; and is that intention, if entertained by the law-making power, expressed in a manner so clear as to require no implication or interpretation to discover it?-the rule being inflexible, and as just as it is inflexible, that penal enactments when not perfectly clear admit of no extension by judicial interference."

I have no room for a discussion of the question; but considering the differences between the organization of the old safety-fund banks, as they were called, and the free banks, it must be admitted that the precise extent to which the provisions of the revised statutes are to be applied to the new institutions, and especially to their officers, is still unsettled.

Since writing the above note, and while this sheet is passing through the press, I have received a work specially devoted to "The Banking System of New York," for which I am indebted to the kindness of the learned author, John Cleaveland, Esq. The volume contains a vast quantity of information, both of a legal and historical character, which is nowhere else to be found collected, and must undoubtedly prove of great value to all persons, whether in or out of this State, who occupy themselves in any way with matters relating to this most important branch of finance. Mr. Cleaveland's long familiarity with this particular subject, his devotion to his profession, and his reputation as an accurate jurist, are sufficient guarantees in regard to the execution of the work.

CHAPTER IX.

OF THE INTERPRETATION AND APPLICATION OF TREATIES, OF PATENTS OR GRANTS OF LAND, AND OF MUNICIPAL ORDINANCES.

Treaties-Part of the Supreme Law of the Union-How far they affect State Legislation-How far they may have a retrospective effect-Patents or Grants of Land-Resumptions of, in early times-Rules of construction applicable to Municipal Ordinances-Centralization and Local Sovereignty -Instance of the former in Rome and France. Development and application of the latter in America. Towns and Cities. Delegation of Legislative Sovereignty. Mode of the exercise of the delegated authority. Cases-General authority of the Courts-Contracts in violation of Ordinances void-Passage of Ordinances.

IN treating of the interpretation and application of written law, we have thus far considered the exercise of legislative power in regard to the enactment of statutes, in cases in which that power is unrestrained by any paramount or fundamental law. Before passing to the subject of constitutional limitations upon legislative action, we have to examine some topics which are so intimately connected with our general subject, that they cannot with propriety be omitted. Treaties, Patents or Grants of Land, and Municipal Ordinances, form a part of our written law, and are all in some respects governed by considerations and rules of the same kind as those which apply to statutes.

Treaties.-The Constitution of the United States* declares that all treaties made or to be made under the authority of the United States, shall form a part of "the supreme law of the land;" and the construction of these instruments thus necessarily enters into the scope of this work. The subject has been so fully discussed by writers on international law, that any elaborate examination of it here would be out of place. Some brief observations must, however, be made.

The effect produced by the grant of the treatymaking power to the Federal Government and by the recognition of treaties as a part of the supreme law, is very important in regard to questions affecting State sovereignty, and vested rights of property. Thus, it has even been intimated that the stipulations in the treaty of Peace between the United States and England, of 1783, were, in regard to the confiscation laws, paramount to the constitution of Pennsylvania.†

It has been insisted that the Federal Government had no power to make a treaty that could operate to annul a legislative act of any of the States, or to destroy vested rights; but the contrary has been expressly decided. So, it has been held that the treaty of peace of 1783 with England repealed an act of the legisla ture of Virginia, of 1777, concerning sequestrations and forfeitures, and that a suit might be brought for the recovery of a debt, though it was barred by the State law. So again in New York, a State statute inconsistent with a treaty has been held to be repealed by it.§

* Art. 6, § 2.

Lessee of Henry Gordon vs. Kerr, 1 Wash. C. C. R. 323.
Ware vs. Hylton, 3 Dall. 236.

§ Denn ex dem. Fisher vs. Harnden, 1 Paine C. C. R., 54.

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