People ex rel. Attorney General v. Utica Insurance

Thompson, Ch. J. delivered the opinion of the court. The information filed in this case, charges the defendants with engaging in banking operations, without any authority under the act incorporating them, and in violation of the prohibition in the act to restrain unincorporated banking associations. Upon the argument, two questions were raised and discussed; one, involving the general inquiry into the right of the defendants to carry on banking business ; and the oilier, touching the remedy that has been pursued, if no Such right exists. I think it unnecessary to enter at large into an examination of the latter question. Upon this point there is no difference of opinion on the bench, and I shall content myself with leaving it to Mr. Justice Spencer, while delivering his opinion on this branch .of the case. I must be permitted, however, barely to remark, that this is rather an ungracious objection made here, considering the discussion that this case has undergone in the court of chancery, — 379 — where it was dismissed for want of jurisdiction in that court to restrain the defendants, because there was a complete and adequate remedy at law, by an information in the nature of a quo warranta, and that too conceded by the defendants counsel, as appears from the opinion pronounced in the court of chancery. (2 Johns. Ch. Rep. 376.) I do not mean, however, to conclude the party by that admission. The objection is properly and rightfully made here, and if well founded, we are bound to yield to it. But that it is not well founded is, I think, very clear; and the chancellor considered it a question not admitting of any doubt. With respect to the other branch of the case, as there is some difference of opinion on the bench, it becomes proper and necessary, that I should examine it a little more at large. It may safely be admitted, that formerly the right of bank-1 ing was a common law right belonging to individuals, and to be exercised at their pleasure. It cannot, however, admit of a doubt, that the legislature had authority to regulate, modify, or restrain this right. This they have done by the restraining act of 1804, (sess. 27. ch. 117.) and which has since been re-enacted and continued in full force. (2 N. R. L. 234.) The construction which has been given by this court to the act is, that it extends only to associations or companies formed for banking purposes, and not to an individual who carries on banking operations alone, and on his own credit and account. (14 Johns. Rep. 205.) The right of banking, therefore, by any company or association, has, since the restraining act, become a franchise or privilege, derived from the grant of the legislature, and subsisting only in such companies or associations as can show such grant. The defendants have, accordingly, set up as their authority, or charter, for the exercise of this privilege, an act passed 29th of April, 1816, entitled “ an act to incorporate the Utica Insurance Company.” The real inquiry is, whether this act contains any such grant of banking privileges. It must certainly strike every person on reading this act, as a little extraordinary, that if banking privileges were intended to be granted, that the usual phraseology of such charters was not adopted. It certainly could not have — 380 — arisen from the legislature being unaccustomed to make. , ° ° . such grants, rhe numerous charters contained in our statute book precludes any such explanation. We do not find the word bank, or any expression that would naturally suggest to tfie mind any such object, used throughout the whole act. None of the usual, and what may be considered the appropriate and technical, language of such charters is adopted. If any such power is contained in this act, it is certainly not embraced in the general scope and avowed object of the grant; but must be collected from separate .and detached parts of the act; and it requires the hand of a skilful workman so to put them together as to frame any thing like the plausible appearance of a banking statute. If this was one of the hidden objects in procuring the incorporation of an insurance company, it is not going too far to say, the legislature must have been deceived and imposed upon; otherwise, no possible reason can be assigned why such privilege should be so concealed and obscurely granted. I do not, however, in construing the grant, mean to travel out of the act itself. But when a right is claimed under it, so manifestly repugnant to the general scope and object of the grant, we ought to keep this in view, when we are looking for the intention of the legislature. And if all parts of the act, and all the terms made use of can be made to apply to the avowed objects of the incorporation, the sound rules of .construction will so limit and apply them. That in construing a statute, the intention of the legislature is a fit and proper subject of inquiry, is too well settled to" admit of dispute. That intention, however, is to be collected from the act itself, and other acts, in pari materia. It may not, however, be amiss to state and keep in view some of the established and well-settled rules on this subject. Such construction ought to be put upon a statute as may best answer the intention which the makers had in view. And this intention is sometimes to be collected from the cause or necessity of making the statute, and sometimes from other circumstances; and whenever such intention can be discovered, it ought to be followed with reason and discretion, in the construction of the statute, although such — 381 — construction seem contrary to the letter of the statute, Where any words are obscure or doubtful, the intention of the legislature is to be resorted to in order to find the meaning of the words. A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute, is not within the statute, unless it be within the intention of the makers. And such construction ought to be put upon it as does not suffer it to be eluded. (Bac. Abr. Stat. I. 5. 10. and authorities there cited.) The two latter rules are deserving of particular notice in the consideration of the case before us. When we are endeavouring to find out the intention of the legislature, in the act incorporating the Utica Insurance Company, we must keep in view the restraining act, which makes it unlawful for them to carry on banking business, unless authorized by their charter so to do. It was contended, however, upon the argument, that the restraining act has no application to this company. If that be so, I do not know but that their charter contains all the power necessary to carry on banking business. But I am unable to discover any possible grounds on which they can claim an exemption from the prohibitions contained in that act. It declares that no person unauthorized by law, shall subscribe to, or become a member of, any association, institution, or company, or proprietor of any bank or fund, for the purpose of issuing notes, receiving deposits, making discounts, or transacting any other business, which incorporated banks may, or do transact, by virtue of their respective acts of incorporation. If the act incorporating the Utica Insurance Company gives them the right of banking, then, to be sure, they are not within the prohibition of the restraining act, for they are not unauthorized by law. But if their insurance charter does not give them banking powers, so far as they travel out of their grant they act as a company of private persons, and become a mere association, doing business without any express authority by law. But' although the restraining act does not, in terms, include incorporated companies, by expressly declaring that no corporation unauthorized by law, shall become a member of, connected with, any banking company, &c. yet the term — 382 — persons, there used, will embrace incorporated companies jn prohibition. It was decided by this court in the case of The Clinton Woollen and Cotton Manufacturing Company v. Morse and Bennet, (October term, 1817,) that under the act for the assessment and collection of taxes, corporations are ■ liable to be taxed for property owned by them ; yet the act speaks only of persons liable to be assessed, and the term corporation is not used at all. So, also, in England, a corporation seised of land in fee, for their ovm profit, are considered inhabitants or occupiers, within the meaning of the statute, 42 Eliz. ch. 2., and liable in their corporate capacity to be rated for the poor tax. (Cowp. 73.) And Lord Coke, in his exposition of the statute 22 Hen. VIII. ch. 5., for the repair of bridges, commenting on the word inhabitants, with respect to what persons are included under that description, says, every corporation and body politic, having lands, &c. are inhabitants within the purview of that statute. (2 Inst. 703.) If corporations can, under the term inhabitants, or persons, be subjected to the same burthens to which individuals are subject in the same character, they may, also, very properly, under the same term, be included within the prohibitions in the restraining act. And here one of the rules of construction I have alluded to applies with peculiar force; that such construction ought to be put upon a statute as does not suffer it to be eluded. Various prohibitory statutes might be referred to, where corporations must necessarily be included under the term person. I shall only refer to one. The act for the encouragement of steam boats, (sess. 31. ch. 225.) declares, that no person or persons, without the license of those who are entitled to the exclusive right, &c. shall set in motion, or naVigate upon the waters of this state, any boat moved by steam or fire. Would the construction be endured, that this prohibition extended only to individuals, and not to cor-' porations ? If so, the act is but a flimsy protection to those claiming the exclusive right. But there is no colour for such a construction. Keeping in view, then, the restraining act, and applying the rules of Construction I have mentioned, I am persuaded that we look in vain for banking powers in the act incorporating the Utica Insurance Company. — 383 — It becomes my duty, however, to notice, a little more particularly, the several parts of the act which have been relied upon as conferring such powers. The preamble is said to contain some such intimation, because it declares, that this company ought to be liberally encouraged. This is certainly a pretty forced extension of that expression, and not warranted by any thing contained in the recital, which states, that incorporating an insurance company which had been formed in Utica, would tend to mitigate the calamities of fire, give security to manufacturers, and confidence to those who adventure their property on our vast navigable waters; that those are laudable objects, and that a company promoting them ought to be liberally encourged. But it is far fetched indeed, to suppose that the right of carrying on banking operations was intended or intimated by this liberal encouragement. The second section which professes to enumerate and define the powers of the company, does not contain an intimation that the right of banking is among such powers, and it cannot grow out of the general clause which authorizes them to transact all the business generally performed by insurance companies, excepting certain specified kinds of business therein particularly mentioned. It was, however, contended on the argument, that the right of carrying on banking operations was necessarily incident to the corporation, because not expressly prohibited, if they had surplus funds which they could spare for that purpose. But I cannot assent to this rule of construing a charter of incorporation for a specific object. Such an incorporated company have no rights except such as are specially granted, and those that are necessary to carry into effect the powers so granted. Many powers and capacities are tacitly annexed to a corporation duly created; but they are such only as are necessary to carry into effect the purposes for which it was established. The specification of certain powers operates as a restraint to such objects only, and is an implied prohibition of the exercise of other and distinct powers. A contrary doctrine would be productive of mischievous consequences, especially with us, where charter privileges have been so alarmingly multiplied. But it is said, that the 9th section of the act contains — 384 — a direct grant of banking powers, not, indeed, eo nomine f but by necessary implication, because, it gives to the directors power to make such by-laws, rules, and regulations as they shall deprn proper, touching the management of the stock, property, estate, effects, and concerns of the' corporation, &c. and the investment of the funds of the corporation, which the business of insurance may not actively employ. Admitting that here is a power granted to invest their surplus funds in banking operations, were it not for the restraining act; yet, when we see that such a use of their surplus funds would be directly in the face of that act, we ought not to give such a construction to these words, unless no other sense or meaning can be attached to them, and their funds would be obliged to lie dead and unemployed. Besides, the proviso to this clause, which seems to have been overlooked, may very fairly admit of a construction amounting almost to an express prohibition, to employ such funds in banking business. It declares, that such investment shall not be repugnant to the laws of this state, nor forbidden by that act in the restrictions and prohibitions on this corporation, thereinafter mentioned. But an investment or employment of these surplus funds in banking business,, if not authorized by law, would be against the restraining act, and so repugnant to a law of this state, and, therefore, coming directly within the prohibition contained within the proviso. But these surplus funds may be invested in many ways, besides in banking business, consistently with the provisions of this act, and not prohibited by any other law; and it is rather a forced use of the term invest, to apply it to an active capital employed in banking. It is usually applied to a more inactive and permanent disposition of funds. And although it might extend to banking, yet it ought not to receive that interpretation here, when another sense, more obvious, and consistent with the general object of the incorporation, may be given to it. One of the rules of construction alluded to may properly be applied here. That although a thing be within the letter of the statute, it is not within the statute, unless it be within the intention of the makers. The surplus funds may, no doubt, be loaned at interest. The second section of the act prohibits the loan — 385 — ing for certain specified purposes, but the loaning for any other purpose, and in any other way not prohibited by law, is authorized and included in the general power to invest the surplus capital; and under the 12th section, they have a right to take and hold mortgages to secure such loans ; for this section expressly declares, they shall have the right so to do, to secure the payment of any debt which may become due to the corporation, by any means howsoever. A bond or note given to the corporation on a loan of money, creates a debt due to them, and the payment maybe secured by mortgage, by the express authority here conferred. There is, then, we see, granted the right to invest the surplus funds in a manner much more consistent with the ordinary understanding of the term investment, than to employ them in banking business. It would, therefore, be against every just rule of construction, to give to this term the latter interpretation. It is under the 15 th and 16th sections, that the right to make promissory negotiable notes is claimed ; and admitting such authority to be there given, it does not follow that banking powers are also granted. Any company or association may enter into an arrangement to transact their business in a particular manner, and agree to be bound by any engagement, made and signed by certain designated agents. This would be binding on the company. It is not, however, the mere power of making such notes, or the particular manner in which they are made, that will confer banking powers, under the restraining act. But it is a very strained construction of the term engagement, to suppose it means a hank note. This is not the usual and ordinary acceptation of the term. If any such thing had been intended by the legislature, the more appropriate term would, doubtless, have been employed. The word engagement, as used in the act, may very fairly be considered as synonimous with policy. Yet a more enlarged sense might be given it, and still limit it to contracts in and about the business of insurance, and the transactions expressly authorized by the charter. The 5(h section has been supposed to contain, in some degree, words that help out the construction contended for by the defendants. By this section, the stockholders owning two thirds of the stock — 386 — may vote to discontinue the business of the corporation; and in such case, the directors are required to call in all parts of the funds, or capital stock of the corporation which may have been loaned, and all debts of any nature which may be due to the corporation. But nothing more is implied, or to be inferred from this authority or direction, than that the corporation may make loans and have debts due to them. It does not follow that such loans were made, or such debts created, in the course of banking operations. They may have debts owing to them as premiums, and otherwise; and it has been shown that they may also loan money. It would be a gross violation of the rules of construction, which I have noticed, to consider this as necessarily implying the right of entering at large iiito the business of banking. I have, I believe, noticed all those parts of the act on which any reliance has been placed, to make out the authority claimed under it by the defendants, j:And I think I have shown, that there is no power or privilege conferred by this act, which may not be enjoyed, nor any one term or expression used, that may not be explained, and receive an appropriate meaning and application, without assuming that the right of carrying on banking operations is granted. I am accordingly of opinion that the defendants are unauthorized, by law, to enter into such business, and that judgment of ouster ought to be rendered against them. Spencer, J. Two questions have been brought forward, in the argument: 1st. Whether an information in the nature of quo warranto will lie in this case ? 2d. Whether the defendants have authority, under the act incorporating the Utica Insurance Company, to carry on banking operations in the manner set forth in their plea ? The statute (1 N. R. L. 108.) gives this writ against any person who shall usurp, intrude into, or unlawfully hold and execute any office, or franchise within this state ; and if the right'set up by the defendants is a franchise, and the act un — 387 — sler which they claim to exercise it, does not confer it, then the defendants are subject to this prosecution. A franchise is a species of incorporeal hereditament; it is defined by Finch (164.) to be a royal privilege, or a branch of the king’s prerogative subsisting in the hands of a subject ; and he says, that franchises being derived from the crown, they must arise from the king’s grant, or, in some cases, may be held by prescription, which presupposes a grant; that the kinds are various, and almost infinite, and they may be vested in natural persons, or in bodies politic. All the elementary writers agree in adopting Finches definition of a franchise, that it is a royal privilege, or branch of the king’s prerogative, subsisting in the hands of a subject. • An information, in the nature of a writ of quo warranto, is a substitute for that ancient writ which has fallen into disuse; and the information which has superseded the old wnh is defined to be a criminal method of prosecution, as well to punish the usurper, by a fine for the usurpation of the franchise, as to oust him and seize it for the crown. . It has, for a long time, been applied to the mere purpose of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only. (2 Inst. 281. pl. 12. 3 Burr. 1817. 4 Term. Rep. 381. 1 Bulst. 55.) If there are certain immunities and privileges in which the public have an interest, as contradistinguished from private rights, and which cannot be exercised without authority derived from the sovereign power, it would seem to me that such immunities and privileges must be franchises ; and the act for rendering the proceedings upon writs of mandamus, and informations in the nature of quo warranta, more speedy and effectual, presupposes that there are franchises, other than offices, which may be usurped and intruded into. If, in England, a privilege in the hands of a subject which the king alone can grant, would be a franchise, with us a privilege, or immunity of a public nature, which cannot legally be exercised without legislative grant, would be a franchise. The act, commonly called the restraining law, (sess. 27. ch. 114.,) enacts, that no person unauthorized by law, — 388 — fehall subscribe to, or become a member of any association, or proprietor of any bank or fund, for the purpose of issuing notes, receiving deposits, making discounts, or transacting any business which incorporated banks do, or may transact, by virtue of their respective acts of incorporation. • Taking it for granted, at present, for the purpose of considering whether the remedy adopted is appropriate, that the defendants have exercised the right of banking, without authority, and against the provisions of the restraining act, they have usurped a right which, the legislature have enacted should only be enjoyed and exercised by authority derived from them. The right of banking, since the restraining act, is a privilege or immunity subsisting in the hands of citizens, by grant of the legislature. The exercise of the right of banking, then, with us, is the assertion of a grant from the legislature to exercise that privilege, and, consequently, it is the usurpation of a franchise, unless it can be shown that the privilege has been granted by the legislature. An information, in the nature of a writ of quo warranto, need not show a title in the people to have the particular franchise exercised, but calls on the intruder to show by what authority he claims it; and if the title set up be incompíete, the people are entitled to judgment. (2 Kyd on Corp. 399. 4 Burr. 2146, 7.) This position is illustrated by the nature and form of the information ; the title of the king is never set forth ; but after stating the franchise usurped, the defendant is called upon to show his warrant for exercising it. This consideration answers the argument urged by the defendant's council, that banking was not a royal franchise in 'England, and that it is not a franchise here which the people, in their political capacity, can enjoy; for if their title to enjoy it need not be set out in the information, it is not necessary thad it should exist in them at all. In the case.of The King v. Nicholson and others, (1 Str. 303.) it appeared that by a private act of parliament for enlarging and regulating the port of Whitehaven, several persons were appointed trustees, and a power was given to them to elect others upon vacancies by death or otherwise. The defendants took upon them to act as trustees without such an election ; and — 389 — upon motion for an information in the nature of a quo warranto against them, it was objected, by the counsel for the defendants, that the court never grants these informations but in cases where there is a usurpation upon some franchise of the crown; whereas in that case the king alone could not grant such powers as are exercised by the trustees, the consequence of which was, that this authority was no prior franchise of the crown. To this it was answered, and resolved by the court, that the rule was laid down too general, for that informations had been constantly granted when any new jurisdiction or public trust was exercised without autho’rity; and leave to file an information was, accordingly, granted. This case is a strong authority in favour of this proceeding. Many cases might be cited in which informations, in the nature of quo warranta, have been refused where the right exercised was one of a private nature, to the injury only of some individual. In the present case, the right claimed by the defendants is in the nature of a public trust; they claim, as a corporation, the right of issuing notes, discounting notes, and receiving deposits. The notes they issue, if their claim be well founded, are not obligatory on the individuals who compose the direction, or are proprietors of the stock of the corporation. These notes pass currently, on the ground that the corporation have authority to issue them, and that they are obligatory on all their funds; the right claimed is one, therefore, of a public nature, and, as I conceive, deeply interesting to the community ; and if the defendants cannot exercise these rights without a grant from the legislature; if they do exercise them as though they had a grant, they are, in my judgment, usurping an authority and privilege of a public kind ; and, we perceive, that it is not necessary that the right assumed should be a a prior franchise of the crown, or of the people of the state* Had the defendants claimed and exercised the right of banking as private individuals. I agree that an information would not lie against them ; they would have been subject only to the penalties inflicted by the act; but they claim the privilege as a corporation, and under a grant from the legislature. If they have not that grant, they have exercised — 390 — and usurped a franchise, and the remedy persued is well adapted to the case. This brings me to the second question. "The Utica Insurance Company was incorporated on the 29th of March, 1816 ; and it is contended on the one hand, and strenuously denied on the other, that the act gives to the corporation the power of banking. - The preamble to the act has been resorted to, to show the object of the incorporation and the intention of the legislature, and both parties draw conclusions favourable to their positions from it. The true rule on this subject undoubtedly is, that the preamble of an act cannot control the clear and positive words of the enacting part, but may explain them, if ambiguous. The preamble in question, it seems to me, cannot be called in to aid the construction of the enacting clauses; for, although it shows that the object of the incorporation was to insure against losses by fire, and the navigation on the waters of the interior, and declares these objects to be laudable, yet it adds, “ that a company promoting them in the interior of our country where the profits must necessarily be small, ought to be liberally encouraged.” What that encouragement' was to be, whether in matters of insurance, strictly, or whether in the grant of additional powers and rights, must be matter of mere conjecture. I must, therefore, read the act as if it were without a preamble, in reference to the points now in question. The principal attributes of a bank are the right to issue negotiable notes, discount notes, and receive deposits. Have the defendants a right to issue negotiable notes without reference to their right to insure ? The second section of the act forbids their issuing any notes which grant, or stipulate to pay, annuities upon any life or lives; the fifteenth section provides, that any policy or engagement, signed by the president, and attested by the secretary, when done conformably to any by-laws of the directors, shall be valid against, and effectually bind the said corporation, without the presence of a board of directors, and as effectually as if under the seal of the corporation. The 16th section enacts, that no policies or ■ engagements whatever, which shall be entered into by the corporation — 391 — with any individual, body politic, or corporate, shall be transferable, negotiable, or assignable, so as to give such second holder or assignee, a claim on the corporation, either in his own name, or in the name of the person originally concerned, unless the consent of the corporation shall have been previously obtained, and endorsed in writing on such instrument, or unless such a privilege form a part of the original agreement, and be expressly granted by the corporation. The 18th section prohibits the issuing of any notes, as therein before prohibited. I cannot bring myself to doubt, for a moment, that the i right of issuing negotiable notes, except in the prohibited case, of notes stipulating' to pay annuities upon lives, is given with entire latitude, depending on the discretion and will of the corporation. The grant of the power is unlimited and unrestricted. The prohibition not to issue any notes stipulating to pay annuities upon any life or lives, taken in connection with the general grant of. power to issue 1 negociable engagements without restraint, shows that the legislature intended that there should be no restraint or prohibition but in the specified case. And upon the settled principle of construction, an exception to a power otherwise un-l limited, shows that it was intended to be limited no farther! than is expressed in the exception. It is contended, that the power to issue engagements, contained in the 15th and 16th sections of the act, must be confined to such as may become necessary in the principal business and objects of the incorporation, that is, upon subjects of insurance, and where losses happen, which it is not. convenient for the corporation to pay immediately. This argument supposes that all the powers conferred by the act-embrace the business of insurance ; and that idea is only to be collected from a part of the preamble, rejecting or overlooking that part of it which declares, that a company promoting the objects before enumerated, where the profits must necessarily be small, should be liberally encouraged. The liberal encouragement, it would seem to me, meant some benefits beyond the small profits arising from insurance against fire and of the navigation on our interior waters. I have already said, that I lay no stress on the preamble, and — 392 — all I contend for is, that if it be called in to aid the constructian of the act, it must be taken altogether. Have the corporation a right to discount notes ? The discounting of notes is one mode only of lending money, and that they possess this power, appears to me indisputable. By the ninth' section of the act, the directors have express power to call and demand from the stockholders the remainder of all sums by them subscribed, and adequate power is given to enforce the payment; in the same section, the. directors are authorized to make and pursue such by-laws, rules, and regulations, as they shall deem proper, and "among other things, for the investment of the funds of the corporation which the business of insurance may not actively employ. I know of no technical legal definition of the term investment, as applied to money. In common parlance, it means the putting out of money on interest, and, beyond all doubt, the legislature meant that the corporation might put out, or use and employ such part of their funds as the business of insurance did not actively employ ; and the plea put in by the defendants alleges that their discounting of notes consists in investing the funds of the corporation, which the business of insurance in the act mentioned did not actively employ, and no otherwise. If the mode of investment, by discounting notes, which is nothing else than lending mopey on personal security, is not prohibited by the act of incorporation, then it appears to me to be authorized under the general and unqualified power of investing the funds not actively employed in the business of insurance. This idea derives confirmation from the fifth section of the act, which, after authorizing the stockholders owning two-thirds of the stock to discontinue the business of the corporation, makes it the duty of the directors to call in all parts of the funds or capital stock of the corporation which may have been loaned by the corporation. The second section of the act forbids their loaning upon bottomry and respondentia ; and, as I read the 12th section of the act, the power conferred on the corporation to take and hold mortgages extends only to the taking them when given to secure the payment of the shares subscribed, or to secure the pay* ment of money which, in the course of business, actually be — 393 — comes due to the corporation. The 18th section of the act forbids the employment of any part of their funds in buying or selling goods and merchandize, or any funded or other stock, created by act of congress, or of any particular state ; or in buying or selling the stock of any bank, or in loaning any money, or issuing any notes, as therein before prohibited. It would seem to follow, as a necessary consequence from | the general provision, that the corporation might invest such of their funds as the business of insurance might not i actively employ, and the denial of the means of investment,! unless by lending money on personal security, that such! lending is authorized. But the prohibition in the 18th sec-’ tian to the loaning any money, as therein before prohibited, by necessary inference authorizes the loaning in any case j not within the prohibition; and, consequently, the discount- | ing of notes not being prohibited before, is authorized. j It has been argued, that the proviso to the 9th section of the act operates to prohibit the discounting of notes by the Corporation, in as much as discounting notes by the defendants is prohibited by' the restraining act. The proviso is, “ that such investment, by-laws, rules, and regulations, shall not be repugnant to the constitution and laws of this state, or of the United States, nor forbidden by this act in the restrictions and prohibitions on this corporation hereinafter contained.” The restraining act provides that no person unauthorized by law shall subscribe to, or become a member of any association, or proprietor of any bank or fund, for the purpose of issuing notes, receiving deposits, making discounts, or transacting any other business, which incorporated banks do, or may transact, by virtue of their respective acts of incorporation. The offence prohibited by this act, consists in subscribing to, or becoming a member of any association, or proprietor with others of any bank or fund unauthorized by law for banking purposes. But if the subscribing to, or becoming a member, or a co-proprietor of any fund, is authorized by law, then the issuing notes, receiving deposits, and making discounts, is no violation of the act. The act guards against two things; the unauthorized institution — 394 — of a fund or bank by an association of individuals, and the making use of that fund for hanking purposes. To subjc'ct a corporation or individuals to the operation of the acb and to convict them of an offence against if, both circumstances must concur. The fund must be unauthorized, and it must be for the purposes of banking. The statute considers the association by individuals to create, and actually creating, a fund or bank, the principal offence ; the purpose for which it is done, if it be in contravention of the act, completes the offence. How, then, can it be said, that this corporation have violated the restraining act, by investing that part of their capital which the business of insurance may not actively employ, when the act of incorporation expressly authorizes a subscription to the stock of the corporation, limits the number of shares to two thousand, and fixes them at two hundred and fifty dollars each, and empowers the directors to call it in ? If the simple act of loaning money by a corporation legally possessed of a fund, by way of investing their surplus capital, is not an offence against the restraining act, (and I say, with entire confidence, that it is not) there is an end of the question, for there is no other law which it is pretended has been violated. The same answer is applicable to the objection against this corporation receiving deposits ; there is no express authority in the act of incorporation to receive deposits, as there is to issue negotiable notes, and to loan money; but the act of receiving money as a bailee or trustee for another, is an innocent and harmless act, forbidden by no law, and injurious to no person. I have, then, examined the act incorporating the defendants, and the restraining act, and if I have taken a correct view of the powers conferred by the former, and have given a just construction to the latter, the defendants stand unaffected by it. I have totally disregarded all insinuations or suggestions that the legislature, in point of fact, did not intend to grant banking powers. I know of no other rule by which to construe a statute, than to examine it by the words it contains# to give to its expressions a fair and just interpretation, upon the established rules, of construction. Courts of law can395 Slot consider the motives which may have influenced the legislature, or their intentions, any further than they are" manifested by the statute itself. It is' true, that this act of incorporation grants no express power of banking, eo nomine ; nor is it necessary to authorize banking operations, that any particular form of expression should he used; it is sufficient if the attributes of banking are conferred. In considering this case, my opinion does not rest on any implied powers which the corporation possess, merely as a corporation; but is founded on the powers expressly given, and on such as are necessarily implied from the language of the act of incorporation. And, in my judgment, the defendants have a very clear title to enjoy the franchise set forth in their plea. Platt, J. being related to some of the defendants, declined giving any opinion. Judgment of Ouster.