
    Citizens’ Bank of Steubenville v. Francis M. Wright, Auditor of the State of Ohio.
    Where a bank, organized under the act of March 21,1851, “ to regulate free banking,” has done and continues to do all the acts necessary to perfect and maintain its organization, in pursuance of said act, and has complied with the provisions thereof to entitle it to receive from the auditor of state notes of circulation, which the auditor of state refuses to furnish, and no cause for such refusal being shown, except that he has doubts as to the constitutionality of said act, the writ of mandamus is the proper remedy.
    ‘The second, third, and seventh sections of the thirteenth article of the constitution of 1851, are prospective, and not retrospective, in their intent and application.
    '3iThe act of March 21, 1851, “ to regulate free banking,” is not inconsist- [319 ent with' the constitution of 1851, and is not, therefore, by implication, repealed by it.
    Cass v. Dillon, 2 Ohio St. 607, followed and approved.
    This is an application for a peremptory mandamus upon the auditor of state, to compel him to issue notes of circulation to the plaintiff, under the act to regulate free banking, passed March 21, 1851. The facts are concisely stated in the relation, a copy of which is here set out:
    “Your relator, the Citizens’ Bank of Steubenville, shows that James Collier, Edwin D. Collier, E. Collier, John A. Collier, A. H. Dohrman, John S. Patterson, James O’Neal, Robert Hears, Joseph Means, William Stanton, Mary W. Andrews, William Elliott, Thos. Johnson, James Turnbull, BE. G-. Comingo, Charles C. Beatty, Wm. Nash, William Inglebright, T. S. Henning, P. A. Johnson, Elizabeth Garrett, D. W. Sticr, William McDonald, David McGowan, Wm. Waggoner, Bernard Scullion, Ann Ward, John T. Leslie, Onias Clark, and George McGuire, a number of natural persons exceeding three, on the 20th day of October, a. d. 1851, by virtue of the provisions of an act of the general assembly of the State of Ohio, entitled ‘an act to authorize free banking,’ passed March 21, 1851,. by certificate made under their hands and seals, associated themselves to form a banking company, specifying as the name thereof ‘ Citizens’ Bank of Steubenville,’ Steubenville, in Jefferson county, Ohio, as the place at which it would keep an office to transact its banking business, at which its circulating notes shall be redeemed; that its capital stock is fifty thousand dollars, divided into shares of fifty dollars each. The names and residence, and the amount of stock held by each member thereof, and that said company was-formed on the 20th day of October, 185.1.
    “ That said certificate was regularly acknowledged by *oach member of the company before a notary public of said county, between the above date and the 28th day of October, 1851, and was recorded by the recorder of that county, in a book kept by him for-that purpose, on the 22d day of November, 1851; a copy of said record, certified and forwarded by him, was recorded by the secretary of state, in his office, on the 29th day of said month; all of which appears by the certified copies hereto attached.
    “ That said banking company regularly and properly organized itself under the provisions of the act aforesaid, and the member'stheroof did pay in to the officers elected, sixty per cent, of its capital stock; all which was made to apirear to the governor, auditor, and secretary of state, who, on the 29th day of November, 1851, under their hands and the great seal of the state, issued to the relator a certificate that it hacl complied with the several provisions-of the first, second, third, and fourth sections of said act, which certificate was also recorded by the secretary of state, in his office, as will appear from the certified copy aforesaid.
    “ The relator further shows, that after the issuing of the certificate aforesaid, it presented to William D. Morgan, then auditor of the State of Ohio, lawfully transferred to him, twenty thousand dollars of the public stock issued by the State of Ohio, which was-undiminished by losses, and demanded of him a like amount of. notes, of the denominations and kind, as in and by said act he was bound and it became his duty to cause to be struck and countersigned, for circulation by said banking company.
    “ That ever since the date of said certificate, and its organization, it has paid the taxes regularly assessed upon its capital stock, has maintained, and still continues to maintain, its organization, and fully to comply with all'the provisions of the said act of March 21,. 1851, necessary ^thereunto. In consideration of which the [321 auditor of state, in his official reports, and otherwise in the discharge of his duty as such officer, has treated and recognized it as a bank of circulation, and caused to be struck $19,019 of notes as .and for its circulation, to which the aforesaid- stocks entitled it. Yet he refused to deliver the same to it, as in and by said act he was bound to do, which this relator avers Was in violation of his duty •as such auditor of state, and its rights in the premises.
    “ The relator further shows, that on the 22d day of April, 1856, -still maintaining its organization as aforesaid, and having paid in to the officers of the bank more than sixty per cent, of its capital ■stock, which remains undiminished by losses, it again caused to be tendered to Francis M. Wright, now auditor of this state, lawfully transferred to him, twenty thousand dollars of the public stocks of the State of Ohio, which remained undiminished by losses, and demanded of him that he cause to be struck, numbered, countersigned, and delivered to it, an amount of notés equivalent thereto, •of the denominations and kind which by the aforesaid act he is bound and required to do. All of which he refuses to do (which .appears by his letter, hereto attached, of that date), which is in violation of his duty as such auditor of state, and the rights of this relator in the premises.”
    “ It is agreed that the facts stated in the foregoing relation are true, and an affidavit thereunto is expressly waived.
    “ F. M. Wright, Auditor of State.”
    
    
      \_Gopy of letter referred to.]
    “Auditor of State’s Office, ]
    “ Columbus, Ohio, April 26, 1856. j
    “Messrs. McCook and Andrews — Gentlemen: I have had under consideration your application for notes for circulation for the Citizens’ Bank of Steubenville, accompanied by a ^tender of [322 state stocks. From, an examination of the records of this office, .and also of the secretary of state’s office, I am fully satisfied that the bank you represent has performed all necessary acts to entitle it to notes of circulation, according to the letter of the statute to which you refer. And I also find from the records of this office, that a similar demand was made of my predecessor, who wont so far as to cause a quantity of notes to be engraved for said bank, but before delivering them, the question being in his estimation of such doubtful character, he submitted it to the attorney-general, Hon. George E. Pugh, who gave as his opinion that the law was .abrogated by the adoption of the new constitution. Whereupon the notes which had been prepared were destroyed. Now, whatever may be my own opinion as to the constitutionality of said law, I am ^constrained, from the fact that it has been declared and treated as void by such high authority, to refuse to issue notes as demanded.
    “ Yery respectfully yours,
    “F. M. Wright, Auditor of State.”
    
    
      
      McCook & Andrews, for plaintiff.
    The Attorney-General, for defendant,
    submmitted the case without argument.
   Brinkerhorr, J.

It being admitted that the Citizens’ Bank-of Steubenville has done, and continues to do, all the acts necessary to perfect and maintain its organization under the act of March 21, 1851, and has also complied with the provisions thereof to entitle it to notes of circulation, which the auditor of state refuses to give, is a proceeding upon madamus the proper remedy to procure its circulation ? We think it is.

Section 5G9 of the code: “ The writ of mandamus.may be issued to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty> resulting from an office, trust, or station. But though it may compel an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it can not control judicial discretion.

“Sec. 570. This writ may not be issued in any case*where there is a plain and adequate remedy in the ordinary course of the law. It may issue on the information of the parties beneficially interested.”

Sections 6 and 7 of the act of March 21,1851, prescribe the duties of the auditor of state in regard to issuing circulation to banking companies organized under it.

“ Seo. 6. The auditor is hereby authorized and required to cause to be engraved and printed, in the best manner to guard against counterfeiting, such quantity of circulating notes, in the, similitude of bank-notes, in blank, of the different denominations herein authorized as he may, from time to time, deem necessary to carry into effect the provisions of this act, and of such form as ho may prescribe. .Such blank circulating notes shall be countersigned, numbered, and registered in proper books, to be provided and kept for that purpose in the office of said auditor, under his direction, by such person or persons as said auditor shall appoint for that purpose, so that each denomination of such circulating notes shall be-of the same similitude, and bear the uniform signature of such register, or one of such registers.

“ Sec. 7. Whenever any company, formed for the purpose of banking under the provisions of this act, shall lawfully transfer to the auditor of state any portion of the public stock issued or to be issued by the State of Ohio, or by the United States, such company shall be entitled to receive from the auditor an equal amount of such circulating notes of the different denominations, registered and countersigned as aforesaid; but said public stock shall in all cases be, or be made to be, equal to stock of this state, producing at least five per centum interest per annum; and it shall not be lawful for the-auditor to take such stock at a rate above its par value, nor above its current market value; provided, that the auditor shall not furnish to said ^company circulating notes to an amount more [324 than three times the amount of the capital stock of such company, actually paid in and remaining in said bank undiminished by losses.” Swan’s Stat. 117.

It is complained that the auditor of state, in violation of his official duties as prescribed in these sections of this law, refuses to-accept the state stocks tendered him, and issue to said bank its notes of circulation equivalent in amount thereto. The sixth section not only authorizes, but requires the auditor “ to cause to be engraved and printed such quantity of such circulating notes, which shall be countersigned, registered and numbered, as may be necessary to carry out the provisions of the act."

The seventh section provides : “ Whenever any company, formed for the purpose of banking under the provisions of this act, shall lawfully transfer to the auditor of state any portion of the public stocks,” etc., “such company shall be entitled to receive from the auditor an equal amount of such circulating notes.”

This company having organized and tendered .to the auditor, lawfully transferred to him, twenty thousand dollars of public stocks of the State of Ohio, the whole tenor of the act, as well as the seventh section above given, requires as much that the auditor shall receive said stock as that “ said company shall be entitled to receive from the auditor an equivalent amount of circulating notes.” This section is susceptible of but one construction, which is, that the auditor shall, when lawfully transferred to him, accept said stock, and give said company an equal amount of circulating notes.

These sections unquestionably “ specially enjoin as a duty ” upon the auditor of state, “ resulting from that office,” that he cause said notes to 'be printed, countersigned, numbered, and registered, and 325] receive said stocks '-^lawfully transferred to him, and give said, company its notes for circulation.

With these observations, and it being too apparent to require argument that there is “ no other specific, adequate remedy at law ” for the wrong complained of in this proceeding, we can not be mistaken in the remedy selected. This we might with safety have assumed since the. code and the case of the C., W. & Z. R. R. Co. v. The Commissioners of Clinton County, 1 Ohio St. 105.

Assuming, therefore, that the right of this banking company is clear, to have performed, by the auditor of state, the acts he refuses to perform, there being no apparent valid excuse for their nonperformance ; by section 532 of the code a peremptoty mandamus is the proper writ. The only excuse given for non-performance by the auditor is contained in his letter of April 25, 1856.

The act of March 21,1851, was passed by the last legislature assembled under the constitution of 1802, and it is not denied that the act was legally passed under that constitution. But it is said by the auditor that it is of doubtful constitutionality under the constitution of 1851, which took effect on the 1st of September of that year ; that his predecessor had treated it as abrogated by that instrument, and therefore he declines to receive the stocks and issue notes of circulation under said law.

The first section of the schedule annexed to the constitution of 1851, and for all purposes embraced within its provisions, a part of that instrument provides that “ all laws of this state in force on the 1st clay of September, one thousand eight hundred and fifty-one, not inconsistent with this constitution, shall continue in force until amended or repealed.” Now it is admitted on all hands that the act to regulate free banking was in full force before and up to 326] *the time mentioned in this section of the schedule, and it ©nly remains to inquire whether it then ceased to be so by reason of its being “inconsistent with the constitution,” which then took effect; or, in other words, whether the act “to regulate free banking ” is, in its provisions, so incompatible with those of the new constitution as to be by implication repealed by it ?

In the consideration of -this question, we must bear in mind that repeals, by implication, are not favored; and this rule “ is applicable to the inquiry whether any particular enactment has ceased to be' in force on account of repugnancy to the new constitution; and that repugnancy which must cause the law to fall must be necessary and obvious; for, if by any fair course of reasoning the-law ánd the constitution can be reconciled, the law must stand Cass v. Dillon, 2 Ohio St. 607. What then are the provisions of the new constitution with which the “ act to regulate free banking” is supposed to be inconsistent? We are aware of none but the following sections of the thirteenth article:

" Sec. 1. The general assembly shall pass no special act conferring corporate powers.
“ Sec. 2. Corporations may be formed under general laws; but all such laws may, from time to time, be altered or repealed.
“ Sec. 3. Dues from corporations shall be secured by such individual- liability of the stockholders, and other means, as may be prescribed by law; but in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock.”
“ Sec. 7. No act of the general assembly, authorizing associations with banking powers, shall take effect until it *shall be sub- [327 mitted to the people at -the general election next succeeding the passage thereof, and be approved by a majority of all the electors voting at such election.”

That the “ act to regulate free banking ” is not inconsistent with the second section above quoted, is very obvious; for they both look to the same end and contemplate the same policy, to be effected by t-ho same moans, to wit, the formation of corporations “ under general laws.” And that general laws are always subject to alteration and repeal, without any special provision on the subject, has, so far as wo are aware, never boon denied.

Let us now look at the seventh section :

“ No act of the general assembly authorizing associations with banking powers, shall take effect until it shall be submitted to the people at the general election next succeeding the passage thereof, and be approved by a majority of all the electors voting at such election.”

Is this section prospective or retrospective in its intent and application ? Does it refer to past or future legislation ? It prescribes a condition precedent to the taking effect of an “ act of the general assembly, authorizing associations with banking powers.” This is the sole office of the section; and from the nature of the case it can not apply to the “ act to regulate free banking,” because that act had taken effect and existed in full force months preceding the taking effect of the new constitution. And so far from its being necessary and obviously clear that this section should be construed to embrace within its provisions acts of past legislation, authorizing associations with banking powers,” the language of the section leads us necessarily and clearly to the opposite conclusion.

Let us return now to the second and third sections:

“ Sec. 2. Corporations may be formed under general *laws ; but all such laws may, from time to time, be altered or repealed.
“ Sec. 3. Lues from corporations shall be secured by such individual liability of the stockholders; and other means, as may be prescribed by law; but in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock.”

The second section is a grant of powers to the general assembly; the power, first, to authorize the formation of corporations under general laws; and second, to alter or repeal those laws. What general assembly is referred to in this and in the- seventh section? Obviously to the general assembly which should be called into being by and under the new constitution. All preceding general assemblies existed under and in virtue of the preceding constitution. The now constitution could confer no authority on them, for the last of them would expire at the moment of the birth of the new constitution. Following immediately on this grant of powers, contained in the second section, to the general assembly which was to come into being in the future, and under and by virtue of the provisions of the new constitution, and in immediate juxtaposition with it, comes the third section limiting the powers granted in the preceding section, and mandatory on the general assembly as to the mode of their exercise. This, we think, is the solo office of this section, and, like the grant of powers which it was designed to limit and regulate, it is prospective only, in its intent and application.

And this conclusion is, in my mind, greatly strengthened by the fact, that in the next-succeeding- section of this same thirteenth article, where the framers of the new constitution unquestionably do-329] intend to include corporations ^created by past as well as those to be created by future legislation, they say so in express terms: “Sec. 4. The property of corporations, now existing, or-hereafter created, shall forever be subject to taxation, the same as the property of individuals.” And here, it seems to me, the maxim, “ eccpressio unius est exclusio alterius,” applies fairly and with conclusive weight. If the framers of the new constitution intended the-first three sections of this article to apply to past as well as future-legislation, and to corporations then existing, as well as those which might,thereafter be created, especially where those sections might readily, and without doing violence to their language, admit of a contrary construction, why did they not say so ? And why do they take such special and particular care, expressly to declare this intention-in the next succeeding section, if they were willing to leave the same intention to be wrought out by doubtful inference from the three preceding sections? To these questions, I apprehend there can be but one answer. They declared such to be their intention, where such intention existed; and they forebore to declare it where it had no existence.

Section 3 of article 13 of the constitution, which prescribes the minimum degree of individual liability of corporators, is the only-part of the.constitution with which the act we are considering can with any degree of plausibility be claimed to be inconsistent.

Certainly, the existence of banks is not inconsistent with the constitution, for the constitution expressly authorizes their formation in the future, and under general laws.

This act is silent as to the taxation of banks to be formed under its provisions, and therefore leaves them subject to such taxation as-the legislature may see proper, under the constitution, to prescribe.

This act, being a general law, and certainly, in so far as rights *had not vested under it prior to the taking effect of the new [330-constitution, is open to alteration or repeal.

Now, suppose we are mistaken in the conclusions to which we have arrived in respect to the construction and application of section 3 of article 13, and that, instead of being applicable to future-legislation only, it is to be regarded as a fundamental rule, applicable to, governing, and overriding, past and present as well as future legislation; what then? Does it follow that the entire “act to regulate free banking” is therefore repealed? We think not. The only effect of this construction of the section referred to, would, be to repeal, by implication, so much of the act as is inconsistent with that section; that the degree of individual liability prescribed? by the act would be displaced, and substituted by the minimum measure of individual liability fixed by the constitution; or, in other words, that the rule of individual liability prescribed by the act would be displaced, and the minimum rule fixed by the constitution would be carried over and incorporated into tlio act, and become operative, instead of the rule prescribed by the act. In short, such .a construction of the section referred to would not at all affect the •existence of the act under consideration, the right of the relators to their corporate organization, or to the relief which they seek.

If we are correct in these views, it follows that the act of March 21, 1851, “to regulate free banking,” is not inconsistent with any of the provisions of the existing constitution, is not repealed by it, .and that the auditor of state ought to accede to the demands of the plaintiff. The general principles governing the questions presented in this case were elaborately and ably discussed in the case of Cass v. Dillon, before referred to; and concurring, as we do, in the opiniou 331] of a majority of the court, as there announced, *we'are happily relieved from much of the labor which otherwise might perhaps .be deemed appropriate in a case of this importance.

Peremptory mandamus ordered.

Swan, Bowen, and Scott, J J., concurred.

Bartley, C. J.,

dissenting. After the formation of the present ■ constitution of this state, by the convention, but before the time when it was to be ratified and to take effect, the general assembly under the former constitution, on the 21st day of March, 1851, being then in session, passed the act entitled “ an act to authorize free banking.” This statute provides for a general system of banking ■ corporations, adopted'ire a manner differing from, and with terms at ■ at variance with, the new constitution, without limitation upon the number of corporations to be formed, or any restriction as to their locality or aggregate capital, and authorized to continue until the 'year 1872 and forever thereafter, unless the law should be repealed. And the question presented in this case is, whether the provisions ■ of the constitution, in relation to banking corporations, have been thus superseded by a legislative enactment, passed after the formation of the constitution, but before it went into operation.

I may premise, that the rule, and the reason of the rule, that repeals by implication, are not favored, have no application in case of the abrogation of laws in the reconstruction of the government, by the formation of a new constitution. The effect of the new constitution was to abrogate the former constitution, and all laws resting on its authority. Hence, the necessity of the express saving-provision as to prior laws, by the first section of the schedule* Prior laws, “not inconsistent with this constitution,” *are ex- 332 pressly saved and upheld by the constitution itself. And this saving of prior laws carries with it, of course, all the necessary incidental power for the due execution of the laws saved. And whether-a law has been abrogated or not, can not present the question of a. repeal by implication, for it is a question of a saving by express provision.

The following sections of the thirteenth article are the provisions of the constitution, bearing directly on the question under consideration :

Sec. 1. The general assembly shall pass no special act conferring-corporate powers.

Sec. 2. Corporations may be formed under general laws; but all such laws may, from time to time, be altered or repealed.

Sec. 3. Dues from corporations shall bo secured by such individual liability of the stockholders, and other means, as may be prescribed by law; but in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to. a further sum, at least equal in amount to such stock.

Sec. 4. 'The property of corporations, now existing, or hereafter-created, shall forever be subject to taxation, the same as the property of individuals.

Sec. 7. No act of the general assembly, authorizing associations-with banking powers, shall take effect until it shall be submitted to the people, at the general election next succeeding the passage thereof, and be approved by a majority of all the electors voting at-such election.”

It is said, that these several provisions are prospective in their operation. In one sense this is correct; and the same may.be said of almost every other provision of the constitution. But to say that those provisions are all limited prospectively to the exercise of the legislative power, is not only imposing a material qualification upon the language of the second and third sections, but contradicting the express terms of the fourth section. The subject-matter of the thirteenth article of the constitution is that of corporations — not-simply corporations hereafter authorized, but also corporations here-333] sitos formed, as well as corporations *already existing. Each •of these sections contains a distinct and independent proposition, • complete within itself.

The object of the 13th article of the constitution is shown by reference to circumstances existing prior to, and at the time of, the formation of the constitution. Unequal and unjust advantages had been given by special legislation in favor of corporations for a series of years, until it had become a subject of very general complaint throughout the state. With a view to provide against this •evil in future, the first section of the 13th article inhibited all future special legislation conferring corporate powers. This provision was of course operative only as a restraint on the future •exercise of legislative power. But this was not sufficient of itself to prevent the future growth of the evil. Special legislation had already authorized the formation of corporations, not yet organized in all parts of the state, to an incalculable extent. So that without •some provision on the subject of the formation of corporations, the evils of special legislation conferring corporate powers would be continued by the future formation of corporations under prior special legislation, for a series of years to come. To meet this contingency the second section .was inserted, prescribing certain requisites in the mode of forming corporations in future; the third section fixing the individual liability of corporators, and the fourth section subjecting corporate property to equal taxation. The constitution having thus prescribed certain terms for the formation or organization of future corporations, and fixed the liability of the • corporators to some extent, it followed, after the constitution took effect, that new corporations could not be formed or organized in any other mode, or upon any other terms than those prescribed in the constitution. Authorizing corporations to be formed by the 334] ^enactment of a law conferring corporate powers, and the formation of corporations after the corporate powers have been authorized, are different and distinct matters. This distinction is highly important; indeed essential to a correct interpretation of the constitution. While it is manifest, from the whole tenor of the instrument, that it was not the intention of the constitution to abrogate existing corporations already formed under prior laws, it is equally plain, that it was not the intention, that after the constitution ■■■should take effect, new corporations should be formed, or brought into existence under prior laws, in a mode and on terms at variance ■with, those prescribed by the constitution. By the period fixed for Tfcbe termination of the .corporate powers of the banking corporations, existing .prior to the formation of the constitution, the old •system would, by its own terms, gradually expire. But if the provision saving prior laws, in order to continue for a time corporations •previously formed,' could have the effect to allow new corporations 'to be formed, and to grow up under such prior laws, after the constitution took effect, the important and salutary regulations for future corporations, contained in the constitution, would have been, rendered almost, if not wholly nugatory. For, if the formation of new corporations under prior laws, at variance with the constitution had been permitted, new banking corporations, brought into existence after the constitution took effect, could have been continued for many years, and perhaps for an indefinite period of time, in a mode and on terms in conflict with, and in defiance of, the provisions of the constitution; and it would have left the power in the general assembly under the old constitution, which 'was in session at the time of the adjournment of the constitutional convention to have enacted and brought into existence after the formation of the new constitution, but before *it took effect, an extensive general system of corpora- [335 tions, which might have virtually superseded, and wholly defeated, for all time to come, the provisions of the new constitution. It is not fair nor reasonable to presume, that the framers of the constitution lost sight of this difficulty; on the contrary, they appear to have had it especially in view. Hence the provisions of the second and third sections of the thirteenth article of the constitution, by which they prescribed terms and conditions in the formation of corporations and the liabilities of corporators, applicable to all corporations which might be organized or brought into existence, after the constitution took effect. These sections are not limited in their operations to the exercise of the legislative power, but apply to the status and organized existence of the artificial persons themselves. The term “formed," used in the second section, is synonymous with organized, and signifies the act of erecting, and giving form and substance to the legal body itself. The subject-matter of the second section is the formation or organization of corporations, and the predicate the mode or conditions prescribed. And the subject-matter of the third section is the individual liability of the corporators, and the predicate the liability prescribed. To construe these two sections as creating conditions or terms applicable simply to the future exercise' of the legislative power, would bo a limitation or-. qualification upon their operation wholly unwarranted by the language used. Each of these sections contains a distinct proposition complete within itself, and neither has any necessary dependence-upon or connection with the first or seventh sections of the article qualifying its language. The first and seventh sections, in direct and express language, fix limitations and conditions in the exercise of the legislative power, and can operate only prospectively 336] upon the legislative power conferred by the *now constitution. And the limitation of these provisions, to the future exercise of the legislative power, was necessary to prevent conflict with prior laws, under which corporations already formed, were existing. The manifest .intention of the constitution not to abrogate existing corporations, but leave them to stand, is shown by the fourth section of this article of the constitution, which expressly recognizes the continuance of already existing. corporations, by providing for a mode of taxing them. And inasmuch as the first- and seventh sections operate only prospectively, on the exercise of the legislative power, and the second and third sections operate prospectively only on the organization of corporations formed after the constitution took effect, existing corporations already formed, and the prior laws under which they wore upheld, were left to stand undisturbed by the operation of the constitution. And the provision of the schedule saving all prior laws, not inconsistent with the new constitution, carried with it, by necessary implication, all the incidental powers of the former constitution essential to the due-execution of such prior law. As the second and third sections operate only on the act of organizing or forming new corporations,, they could present no conflict with prior laws, under which corporations previously formed were existing, except whore it might be vitally essential to the existence of a law itself, that now corporations, at variance with these provisions of the constitution, should be formed. For example, take the “ act to incorporate the State Bank of Ohio, and other banking companies.” Under this law, a, system of banking corporations was in existence when the 'constitution took effect; and although, but for the constitution, additional corporations might have been formed under the law, yet it was not. essential to the operation of the law for the purposes .of the cxist337] ing corporations *that such new or additional corporations should be formed. Had the provisions of the law imperatively required the formation of new and additional corporations, or had no corporations been already formed under its authority, it would have presented an unavoidable inconsistency with the constitution in its necessary and essential provisions, and therefore fell by the operation of the constitution. But, inasmuch as the second and third sections of the thirteenth article of the constitution do not affect the imperative and essential provisions of the law itself, but only operate prospectively on the formation or organization of corporations, the law is left in force and not abrogated, although no new corporations can be formed under it, after the constitution took effect. This construction effectuates the manifest intention of the constitution. Any other construction would lead necessarily to one or the other of two absurdities, to wit, either that the provisions of the constitution could bo defeated by the continuing formation of corporations under prior laws, after the constitution took effect, or that the prior laws containing the franchises of previously formed and existing corporations were abrogated, and such prior corporations abolished by the operation of the constitution.

It is said, however, that the import of the second section of this article is a grant of power to the general assembly. To this there are two unanswerable replies. In the first place, all the legislative power of the state is conferred by the first section of the second article of the constitution; and it can not be denied that this general grant of the legislative powerfully included a general authority to grant corporate powers. And the limitation imposed upon the legislative power by the first section of the thirteenth article, as to passing of special acts conferring corporate powers, still left, the general assembly clothed with *full power to confer corporate [338 powers by general laws. So that, as a grant of power, the second section would have been wholly unnecessary and mere surplusage. In the next place, it is preposterous to suppose that the framers of the constitution would have inserted a separate and independent section in the constitution in order to express, indirectly, what could have been expressed by direct language and in fewer words, by a simple addition to the preceding section, thus :

“ Sec. 1. The general assembly shall pass no special act conferring corporate powers, hut corporate powers may be conferred by general laws, which may, from time to time, be altered or repealed.” This would have given the provision direct and exclusive application to tho legislative power, and not required a stretch of the judicial power to change or limit the plain and natural import of the language of the constitution by construction. By putting the provision in the form of a separate and independent section, and ■clothing it in language having direct and plain application to the formation or organization of new corporations, instead of the oxcr■cise of the legislative power in conferring 'corporate privileges, an organic principle was expressed perfectly consistent with the spirit and manifest general intent of the constitution, and which can not, by a fair and warranted interpretation, be limited in its application ■to the mere exercise of the legislative power in future.

The following propositions express the effect'of the most plain and well-settled rules of legal interpretation :

1. Where the language of an instrument is plain, clear, and determinate, it is to bo taken in its usual and known meaning, giving full scope to the signification of the Words with reference to the subject-matter in relation to which they are employed.

2. Where the provision of an instrument is clothed in language 339] ^requiring interpretation or construction, in order to ascertain its true legal import in the connection in which it is used, that interpretation or construction is to be favored which is consistent with the fair and reasonable intent of the instrument, and that to be avoided which involves manifest absurdity, or tends to defeat the full and fair operation of nhe instrument.

Apply these rules to the question before us. The language of the second and third sections of the thirteenth article of the constitution is plain, clear, and determinate, and has direct application to th e formation of corporations; and to limit its operation to the mere exercise of legislative power in future, would be changing the direct and plain import of the words by unwarranted interpretation ; and'thus to restrict the operation of these provisions would lead to the absurd conclusion that prior laws could perpetuate the existence of corporations formed after the constitution took effect, in a manner, and upon terms, at variance with the constitution, and thus virtually defeat' the operation of -important organic principles prescribed by the constitution for corporations in future.

The case of Cass v. Dillon, 2 Ohio St. 608 has been referred to as an authority to sustain the opinion of the majority of the court in the case before us. With all proper deference, I must be permitted to say that, in my judgment, the decision in Cass v. Dillon has “no application whatever to the real question now before us. That ease depended on the construction to be given to an entirely different provision of the constitution, to wit, the sixth section of the eighth article, which is a simple limitation on the future exercise of the legislative powei-in express and direct words. I concurred in that '■decision, although I did not then, and do not now, approve of all the reasoning *of the learned judge who delivered the opinion [340 of the majority of the court.

Taking the foregoing views as expressing the true interpretation ■of the constitution, and which, with all proper deference for the opinion of the majority of the court, I most respectfully insist is the •correct one, it follows that, after the constitution took effect, corporations could not be legally formed, or brought into existence, without a conformity with each one of the following organic principles.

1. The authority for the corporate powers must be conferred by ¿a general law.

2. Such general laws must be subject to alteration or repeal.

•3. The laws must provide for and require the individual liability of the stockholders, for the dues of the corporations, to an amount as great, at least, as that imperatively required by the constitution.

4. The property of the corporations must forever be subject to taxation, the same as the property of individuals.

After the constitution took effect, therefore, no new corporations could be formed under the authority of the “ act to authorize free •banking,” passed March 21,1851, because:

1. That law did not provide for or require the individual liability of the stockholders", imperatively required by the constitution in all corporations formed after the constitution took effect. This organic principle of the constitution affects the fundamental -structure of corporations’, and could therefore in no manner be avoided or dispensed with.

2. Under the doctrine established by the majority of this court at the present term, that the franchise of a corporation is a contract, this law would not be subject to alteration or repeal until the year 1872. See infra, Ross Co. *Bank v. Lewis. It is true- [341 I dissented from this doctrine, that the franchise of a corporation is a contract, and by means thereof withdrawn from legislative control by alteration or repeal, and 1 have placed my reasons for my dissent fully upon record. See infra, dissenting opinion in Matheny v. Golden. But the doctrine established by the majority of this court will be taken as the law of this state until overruled.

The tenth section of this law contains the following provision: “Every company formed under this act, after having procured the certificate required in the fifth section of this act, shall be, and hereby is, created a body politic and corporate, with succession, until the year eighteen hundred and seventy-two, and thereafter, until the repeal of this act, and by its name shall have power f etc.

Now, according to the doctrine laid down by the’Supreme Court of the United States, and unfortunately still adhered to by a majority of that court, and still more unfortunately recognized as law in Ohio, by a majority of this court, at the present term, this law embodies the terms of an express contract between the state and each corporation existing under it, and that therefore it can not be altered or repealed until the year 1872, without a violation of the provision of the constitution of the United States prohibiting the enactment of a law by any state impairing the obligations of a contract. And I must be permitted to say, with all due deference, that I consider this doctrine, that the charter of a corporation is a contract, grossly preposterous, and most unjust and opjmessive in its-tendency. In the inherent nature and essence of the things themselves, a law can not be a contract, and therefore, by a constructive fiction, protected from legislative control by amendment or repeal. The constitution, however, has, out of abundant caution, and to guard 342] against the *unjust and oppressive consequences of this doctrine promulgated by the federal judiciary, provided that authority for forming corporations shall only exist under general laws subject to be altered or repealed.

For the foregoing reasons, thus briefly stated, I dissent from the opinion of the majority of the court in this case, holding that the motion for the allowance of the writ of mandamus ought to be overruled.  