
    NOVEMBER TERM, 1844.
    Payne, Green & Wood v. Baldwin, Vail & Hufty.
    A bank’charter is a contract within the meaning of that term as used in the Constitution.
    The right to transfer notes by indorsement is not expressly conferred by the charter of the Planters Bank ; nor is that right essentially important to enable the bank to carry on its business, and necessarily implied by the charter.
    The act of 1840, which prohibits the banks in this State from transferring by in-dorsement or otherwise, any note, bill of exchange, or other evidence of debt, does not deprive them of any granted franchise, and is not unconstitutional.
    The assignee of a note, transferred by any bank within this State since the act of 1840, cannot maintain an action thereon in his own name.
    This was an action of assumpsit brought in the Circuit Court of Jefferson county, by Mathias W. Baldwin, George Vail, and George W. Hufty, against James Payne, Abner E. Green, and Robert Y. Wood, on two promissory notes,-dated on the 4th day of December, 1839, and payable at the Merchants Bank, in the city of New Orleans, one at sixty and the other at ninety days after date, and each for the sum of $6283.95. The declaration was in the usual form. The defendants pleaded the general issue, and a special plea that the notes in the declaration mentioned were executed and made by the defendants, and by them delivered to, and discounted by the Mississippi Railroad Company, and remained the property of the Company until after the 26th day of April, 1840, and were transferred by said Company to the plaintiffs, by indorsement, on the 1st day of April, 1841. To the special plea the plaintiffs filed a demurrer, in which the defendants joined. The Court sustained the demurrer, and.the defendants refusing to answer over, gave judgment on the second plea for the plaintiffs. The case was then tried on the plea of non assumpsit, and the jury found a special verdict in the following words, to wit: “ We, the jury, find that the defendants, James Payne, Abner E. Green, and Robert Y. Wood, executed the two several promissory notes described in plaintiffs’ declaration, on the 4th day of December, 1839, and on the same day delivered the said notes to the said Mississippi Railroad Company, to be discounted for and on account of the said James Payne ; oue of which said notes is for the sum of $6283.95, payable sixty days after the said 4th day of December, 1839, to the order of said Mississippi Railroad Company, at the Merchants Bank, in the city of New Orleans ; and the other of said notes is for the sum of $6283.95, also payable ninety days after the said 4th day of December, 1839, to the order of^said Mississippi Railroad Company, at the Merchants Bank, in the city of New Orleans. That said two notes were discounted by said Mississippi Railroad Company, under their banking powers, on the' said 4th of December, 1839, at the instance of the first drawer, said James Payne, and the proceeds thereupon were received by him, and said Company thereby became the holders of said notes ;' that said notes, or either of them, were not paid at maturity, and were presented for payment at maturity, and protested for non-payment; and that no part of them nor any interest has been paid by said defendants, or either of them ; that the Mississippi Railroad Company on the 1st day of April, 1841, being indebted to the plaintiffs, Baldwin, Vail, and Hufty, transferred and delivered said two promissory notes to said plaintiffs, for a valuable consideration, in payment of said debts. If, upon these facts, the Court is of opinion that the law is in favor of the plaintiffs, we find for the plaintiffs, and assess their damages at $15,300.90. But if, upon these facts, the Court is of opinion that the law is in favor of the defendants, Payne, Green, and Wood, then we find in their favor.” Upon this verdict the Court gave judgment for the plaintiffs ; from which the defendants brought the case to this Court by writ of error.
    
      Montgomery & Boyd, and 8. S. 'Prentiss, for plaintiffs in error, relied on the following points : 
    
    1st. The law of 1840, page 15, sec. 7, does not conflict with any of the rights given or reserved to the .Railroad Company by their charter.
    
      
      2d. It does not impair any of the rights of said Company which grow out of the contract set forth in the special verdict.
    3d. The right of transferring the paper in question by indorsement, is a right wholly independent of contract, and dependent entirely upon the law, and not the acts of the parties.
    4th. The right in question is not essential to the exercise of any of the banking powers of the Company.
    5th. The right in question is not given by the charter, and the section which gives the power to buy and sell exchange, is wholly silent as to the selling of notes which were evidently intended to be mere securities for debts due to the Company.
    The following argument of J. B. C°leman, Esq., on the demurrer filed in the Circuit Court, was submitted on the argument of the case in this Court.
    I. It is supposed one ground of demurrer is, that the act of 1840 should have been pleaded in abatement.
    1. Such was not the intention of the legislature. The act says, u It shall not be lawful.” This is a positive prohibition; a declaration by the legislature that the tranfer, &c., by a bank is unlawful, &c.
    The rule is well settled, that every contract made in contravention of the State, or Common Law, or of public policy, is absolutely void, and cannot be enforced at law or in equity. Owens, et al. v. Bank of U. S. 2 Pet. 539, 540 ; 1 Leigh’s Nisi Prius, p. 7; Craig, et al. v. State of Mo. 4 Pet. 410 ; Green v. Robinson, 5 How. R. 80 ; Glidewell v. Hite, et al. ib. 110.
    Here the plaintiffs base their right to recover on a contract which is void, for an assignment or transfer of a note is a contract, consequently they can never recover.
    “ When the defence is, that the plaintiff cannot maintain any action, at any time, in respect to the supposed cause of action, it should be pleaded in bar.” 2 Saund. P. E. 719 ; 1 Chitty’s Plead. 434.
    “ Matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should be pleaded in abatement.” 1 Chitty’s Plead. 434.
    
      In this case the plaintiffs are forever concluded; because the contract by which they obtained the note is void. Void, as being in violation of the State law; and void; as being in contravention the policy of the State, as evidenced by said law.
    
      2. Though the term “abate” is used in the statute, it is evident the legislature did not intend to use it in its technical sense.
    II. Another ground of demurrer may be, that the act of 1840 is unconstitutional.
    1. It is no infringement of the charter of the bank. Under her charter she has no authority to assign her bills, &c. Laws of Miss. 703, sec. 7.
    Nor is the right to assign necessary for the exercise of any of the powers conferred upon her.
    
      2. It divests no vested rights. If it did, see Charles River Bridge v. Warren Bridge, 11 Pet. 540.
    3. Object of legislature is a good one, &c.; but whether good or not, it is the law, and the Courts must obey it.
    The remedy is no part of contract. McMillan v. Sprague, 4 How. 649.
    “ It is well settled by the decisions of the Court, that a State law may be retrospective in its character, and may divest vested rights, and yet not violate the Constitution of the United States, unless it also impairs the obligation of a contract.” Ib. p. 539.
    “ It is clear that this Cour.thas no right to pronounce an act of the State legislature void, as contrary to the Constitution of the United States, from the mere fact that it divests antecedent vested rights of property. The Constitution of the United States does not prohibit the States from passing retrospective laws generally, but only ex post facto laws.” Charles River Bridge v. Warren Bridge, 11 Pet. 539, 611 ; also, Satterlee v. Matthewson, 2 Pet. 413 ; Watson v. Mercer, 8 Pet. 110.
    
      Quitman and McMurran, for defendants in error.
    The questions we propose to examine in this case, arise upon the. 7th section of an Act of the Legislature of this State, dated - 1840, to be found on pages-of the pamphlet laws of the session of that year. The 7th section substantially enacts, “ That it shall not be lawful for any bank in this State to transfer, by indorsement or otherwise, any note, bill of exchange, or other evidence of debt; and if it shall appear in evidence upon the trial of any action upon any such note, bill receivable, or other evidence of debt, that the same was transferred, the same shall abate on the plea of the defendant.”
    - The Mississippi Railroad Company was incorporated by an act of the legislature of this State in 1836, as will appear by reference to page 173 of the statutes of that year, for the purpose of constructing a railroad. On the 12th of May, 1837, the legislature, by a supplemental act, conferred banking powers and privileges upon this Company, to the extent permitted to other banking institutions in this State. This supplemental charter will be found on page 702 of the Revised Statutes from 1824 to 1838.
    It appears by the special verdict in the record in this case, that the notes sued on in the Court below were made and delivered by the plaintiffs in error to the Mississippi Railroad Company, in December, 1839 ; that they were discounted by the Company, under her banking powers, at the same time, and .the proceeds received by the first maker, James Payne ; so that the Company were the holders of the notes for value received by the makers before the passage of the law of 1840. It moreover appears that the notes were transferred bona fide, for a valuable consideration, to the defendants in. error (the plaintiffs below), in April, 1841, subsequent to the passage of the law just referred to.
    There are some minor questions growing out of the pleadings in this case, in connection with the section of the act which we have quoted, which we may notice briefly hereafter. But we will first take up the leading questions in the case : whether the 7th section of the law of 1840 be constitutional or not, as applied to this case, or whether, notwithstanding the provision of that law, the Company had a right to transfer the notes sued on, under their charter and the Constitution, and the plaintiffs helow, the indorsees, are the legal holders of the notes, and entitled to maintain a suit on them. We admit it to be a serious business for judges or lawyers to test the constitutionality of a law, but whenever it shall become necessary, we will do so with freedom. We look upon the consequences growing out of this law as much more grave and serious than the abstract question of determining its constitutionality or unconstitutionality.
    The supplemental act conferring banking powers on the Company is very comprehensive ; empowering them “ to exercise all the usual rights, powers and privileges of banking, which are permitted to banking institutions within this State, subject-to the restrictions thereinafter mentioned.” The 8th section of this supplemental charter, declares the Company capable of contracting by agreement with or without seal, and of purchasing and selling real and personal estate, and enjoying the same to an extent not exceeding $500,000; and they are permitted the full enjoyment of their rights, privileges and powers, granted them in this act, over and in addition to those granted by the original charter to the Company. The original charter grants to them power to hold and sell lands to the extent of 5000 acres, and personal and mixed estate as far as necessary for the purposes of the charter, and to exercise all the rights and privileges which other corporate powers may do, for the purposes mentioned in the act of incorporation. The first section, then, of the supplemental act, confers upon the Railroad Company all the usual rights, powers, and privileges of banking, which are permitted to banking institutions in this State. Review the whole of these bank charters, and the usual rights, powers, and-privileges granted to each, will be found to be the same. We have had occasion at this term of this Court to discuss this question in reference to the Planters Bank charter, and being moré familiar, we will barely refer to it. The 6th section of the charter of that bank enacts that it shall be capable to have, possess, enjoy to themselves, lands, rents, goods, chattels, and effects of every kind, to the amount of six millions of dollars, and the same to alien and dispose of at pleasure and the 17th section gives her full power to discount notes, bills of exchange, &c., to make loans on a pledge of stock, and to citizens on mortgages of real estate, &c. ■
    Taking, then, the charter of this Railroad Company, contained in the two acts referred to, we presume the opposite counsel will not deny that the Company had a right to discount the notes sued on, to loan to the makers of the note, or any one of them, the amount of the notes, less the interest or discount, and that the Company thereby became the legal holder of the notes, — the primary object of a bank being to loan money by a discount of promissory notes or a purchase of exchange. Had the Company, then, the right to negotiate their notes and bills, to transfer them in payment of their debts, or for any other purposes of the Company ? To our mind this question must be answered in the affirmative. ■ If the Company, under their charter, had a right to discount the note, if they could legally hold a promissory note, they could legally transfer it, so as to entitle their indorsee to sue on it and recover on it, to the same extent they could previous to such transfer. Their charter authorizes them to have, hold, and dispose of real, personal, and mixed estate, in which is included every thing capable of being enjoyed, from lands down to the most insignificant chose in action, and to exercise all the rights and powers incident to banking institutions "in this State.
    But independently of this grant of rights and powers to this corporation, it is incident to it at Common Law, to have a capacity to purchase and alien lands and chattels, except restrained by the charter. 2 Kent’s Com. 277, 281 ; Angelí & Ames on Cor. 59, 78, et seg. ; 1 Ves. & Bea. 226, 237, 240, 244.
    “Independent of positive law, all corporations have the jus dis-ponendij’ absolutely. Angelí & Ames on Corporations, 104, sec. 9.
    So, a corporation may take a mortgage to secure a debt, though not specially authorized by its charter. 2 Kent’s Com. 283 ; 4 Johns. Ch. R. 370 ; 11 Serg. & R. 411. And as incident to the corporation, it may enter into contracts, and sue and be sued, just as individuals may ; and nothing büt a restriction in the charter will limit it. Opinion of High Court, in case of Commercial Bank of Manchester v. Jfolan, page 2 and 3 of pamphlet copy, — recognizing fully the doctrine laid down by Kent, Angel! & Ames, and all other writers treating of this subject. These remarks apply particularly to the acquisition and disposition of property ; in other respects corporate powers are construed more strictly. Same opinion of High Court.
    So, “ every corporation, unless expressly forbidden, has by implication of law, the power to do such acts as are essential to its existence, or necessary to enable it to perform its functions. Same Opinion of High Court, citing 2 Ala. Rep. 472 ; 14 Peters, 129 ; Angelí & Ames on Cor. 182.
    Now what a more ordinary or usual act of a bank, than to negotiate or assign its bills receivable in the ordinary course of its business. Without the exercise of this function, it strikes us a hank would be shorn of half its power and ability when in successful operation. It might as well be said, that although a bank was authorized to loan money, yet it could not take a note as evidence of the loan, unless the charter expressly authorized it to receive notes, or that she could not receive payment of a debt unless her charter expressly authorized her, as to contend that a bank, holding a note or bill, could not transfer that note or bill to a third person who paid it for the maker, or that she could not transfer it to such third person in payment of an honest debt due by her to such third person. Surely, in these times, banks will be encouraged in paying their debts with any of their effects satisfactory to their creditors, instead of being denied the right to do so.
    But what does the right of a bank to receive notes and effects in the course of her business amount to, if she has not the right to dispose of them ? The right to acquire is idle and imperfect, if not useless, without the right of disposing of the acquisitions. The right of disposition is incident to the right of acquisition. The one implicitly exists coextensively with the other, whether derived from a grant to an individual or in the grant of a charter to a corporation.
    It is one of the first duties of a bank to pay its debts, by cash, or by an assignment of effects. Slate of Maryland v. Bank of Maryland, 6 Gill and Johns. 219, 220, 230 ; Chancellor Buckner’s Opinion in case of Robins, et al., Assignees, v. Embry, et al., 1 Sme. & Marsh. Ch. R. 255 ; 6 Conn. Rep. 233, Gatlin v. Eagle. Bank.
    
    But if the sense of our legislature be of any moment in this subject, they have settled it, by the enactment of the 7th section of the law of 1840, cited to the Court in the opening of our argument. For unless the banks by their charters, and the laws existing prior to 1840, had the right to transfer their notes and evidences of debt, why pass a law prohibiting from making such transfers ? Wherefore legislate to prevent them from a transfer of any of their bills receivable, if they had not the right and power to do so ? If they did not possess the power, then the legislature have been guilty of the folly of enacting a most unnecessary and idle inhibition against the banks. But the legislature, and every lawyer and citizen as far as I have heard in this State, believed the banks had this right of disposing of 'their assets when done in good faith, as in this case, in payment of a debt, and have it still, unless the enactment referred to deprives them of this right.
    We submit, then, that inasmuch as there tvas no law in this ,State when the banking powers, rights and privileges were conferred on the Mississippi Railroad Company, in 1837, and there being no prohibition or restriction in their charter, their right to dispose of their assets is unquestionable, unless the law of 1840 interferes ; and we maintain that that law 'does not, that the 7th section, attempting the prohibition, is unconstitutional and void. A stronger case than the present could not be presented, to show this unconstitutionality. The notes sued on in this case were discounted by the bank, and she was the legal holder of them at the time of the passage of the law of 1840. The first clause of the 7th section provides that it shall be unlawful for the bank to transfer such notes or evidences of debt.
    This provision, then, we assert, violates a power or function incident to this corporation, the Railroad Company, and is therefore unconstitutional. It violates that clause of the 10th section of the first article of the Constitution of the United States, which prohibits a State from passing a law impairing the obligation of contracts. It violates the last clause of the 18th section of the 1st article, called the Declaration of Rights, in the Constitution of this State, which declares, “ The legislature shall pass no bill of attainder, ex post facto law, nor law impairing the obligation of contracts.”
    The charter of the Mississippi Railroad Company is,a contract. The act of incorporation is an executed grant, of whatever rights, powers and privileges are contained in it, and usually incident thereto, to the company, to this body corporate. 2 Kent’s Com. 305 ; 6 Cranch, R. 88 ; 9 Cranch, 43; 4 Wheat. R. 518, 697-700, Dartmouth College v. Woodward.
    
    Besides, this company is a private corporation. “ A bank, whose stock is owned by private individuals, is a private corporation, though its objects and operations partake of a public nature, and though government may have become a partner in the association by sharing in the stock.”. 2 Kent’s Com. 274, 276, 276. See also U. 8. Bank v. Planters Bank, 9 Wheat. 907; 4 Wheat. 518; 2 Angelí & Ames on Corp. 21.
    Now, although we may hear in political speeches and in our legislative halls, that the legislature can repeal bank charters, or any other acts of incorporation, yet before this elevated tribunal, organized under our constitution to decide on the laws and the constitution itself, in the administration of justice, regardless of all consequences, we know such a doctrine cannot prevail, nor will it be broadly urged by any counsel. The members of this .Court are sworn to support the constitutions of this State and of the United States. These organic laws are paramount to all laws, and when any provision of a law violates any province of the constitution, the former provision is declared a nullity. 2 Kent’s Com. 305; 6 Cranch, R. 88 ; 7 Cranch, 164 ; 9 Cranch, 43, 2,92 ; Dartmouth College v. Woodward, 4 Wheat. R. 518, 697-700. The clause too in our State constitution was deliberately adopted long after the doctrine had been settled that charters were contracts, as fully within the protection of the clause as any other contracts. Again, if the law impairs or alters any of the powers or rights of the corporation, however slight in extent, it is equally void, as if it attempted a repeal of the whole charter. Green v. Biddle, 8 Wheat. R. 1, 74, 75, 84; 2 Kent’s Com. 305.
    And whether the power of the corporation be an implied one or an express one, in the grant, the same principle applies. 9 Wend» Rep. 351, 383, 392, 393.
    Again. If a bank exercises a power not expressly or impliedly conferred upon it, but not expressly prohibited, the exercise of such power is no defence collaterally in an action at law. It can only avail in a direct proceeding for a forfeiture of charter, and that forfeiture must be judicially determined before it will avail in any other proceeding.. Angelí & Ames, 141, 146, 510 ; 16 Mass. R. 102 ; 9 Mass. R. 423,
    We have then shown, we trust satisfactorily, that the Railroad Company, by its charter, and the powers incident to it as a corporation, had a right to transfer the notes sued on to the defendants in error ; that the seventh section of the act of 1840, if enforced and sanctioned by this Court, would destroy this right; "but that said section is unconstitutional and void, inasmuch as it impairs or attempts to take away the right of transfer, and thereby impair the obligation of the charter or the legislature; thereby destroy one of the corporate franchises vested in this company, by the grant of banking rights, powers and privileges to them.
    And it might be further urged, that this seventh section, while it strikes at the rights of the bank, strikes equally at the rights of the creditor. The same provision, that the bank shall not transfer its assets, necessarily prohibits also an individual from receiving the assets ; and by force of the prohibition prevents him, at the same time, from taking any effects of the bank in payment of an honest debt.
    But again. Is the latter clause of the seventh section of this law of 1840 valid ? Does it qualify the prohibitory part, so as to leave the whole section taken together constitutional ? or is not the last part equally unconstitutional with the first ? We have no doubt of it. The latter clause of the section is, “that if it shall appear in evidence upon the trial of any action upon any such note, or other evidence of debt, that the same was transferred, the same shall abate on the plea of the defendant.” By this legislation, all remedy, by suit, in the transferred note or bill receivable, is taken away. Whenever upon the trial of any action, it shall appear that a transfer has taken place, the action shall abate, no recovery can be had. It is, to us, a serious question, whether under this law, if a note were transferred and then re-transferred to the bank, it could rec.over, if it; were shown that the note had been once transferred to a third person. Be this as it may, the clause of the section we are commenting on, unquestionably intended that any action on a transferred note, whether in the name of the bank or assignee, should abate in proof of the transfer, upon the plea of the defendant.
    How far the legislature may vary remedies, or protect or delay them, we know are nice-and difficult questions in many cases. But where the remedy is altogether taken away, we believe there can be no difference of opinion as to the unconstitutionality of such legislation. A right, without a legal remedy to enforce it or to protect it, is no legal right at all. No legal obligation of a contract can exist when there is no legal remedy, and the law which takes away the remedy thereby impairs or destroys the obligation of the contract. A moral obligation may still remain, but it was a legal obligation which the framers of our constitution intended to protect, when they inserted the clause that no law should be passed impairing the obligation of contracts. And if in legislation, the effect of impairing the obligation of the contract is produced, “ it is immaterial whether it is done by acting on the remedy, or directly on the contract itself. In either case it is prohibited by the constitution” of this State, as well as of the United States.
    Thus the Supreme Court of the United States, in the case of Green v. Biddle, 8 Wheat. 1, say, “ It is no answer that the acts of Nentucky, now in question, are regulations of the remedy and not of the rights to the lands. If those acts so change the nature -and extent of existing remedies, as materially to impair the interests and rights of the owner, they are just as much a violation of the compact as if they directly overturned his rights and interests.” 8 Wheat. 76, 77, 84.
    This doctrine is' reiterated by the same Court, in the case of Bronson v. Kinzie, et al., decided at the January term, 1843, of that Court. 1 How. Sup. Ct. U. S. Rep.
    We rely so confidently on the grounds already discussed, that we deem it scarcely necessary to advert to another, arising upon the pleádings in the Court below, which we believe decisive of this case. The plaintiffs, in the Court below, filed their declaration on the notes in the usual form; and to this the defendants below pleaded the general issue of non assumpsit, the action being assumpsit, and a special plea in bar, setting forth the transfer by the Railroad Company to the plaintiffs below, since the passage of the act of 1840, and alleging the transfer to be unlawful under that law. This special plea was demurred to, and demurrer sustained; and then a special verdict on the general issue.
    Now, if the seventh section of the act of 1840 were even constitutional, we insist that the provision could not avail in this case under the pleadings. Surely, the legislature did not intend that if upon a trial on the merits under the general issue, or any other plea in bar, if it should appear that the note sued had been transferred by a bank, the defendant should then avail himself of a plea in abatement, and have the suit abated, that a trial on the merits might progress to the very close upon the merits of the case ; and then, upon producing evidence of a transfer of the claim sued on, proceedings should there suspend, a plea in abatement be put jp, that disposed of in law and fact, before the Court and jury could dispose of the issues before them, upon the merits, upon which they had progressed with the trial. The language ought to be susceptible of no other construction, before the Court can or will determine that the legislature meant to invert the order of proceedings in Courts which have existed from time immemorial, by the defendant commencing with pleas in bar, and ending with a plea in abatement. If that body had intended that this matter of defence could have been available upon a trial on the merits, they would have provided for a nonsuit on such proof, and nothing else.
    But the law, we conceive, means, and is to be so construed as meaning, that if upon the trial of the plea in abatement, it shall appear that a bank has transferred the debt, the action shall abate ; that where such a defence is to be made, it shall be made in due form, according to the practice of all courts, prior to the filing of pleas in bar. The very filing of the general issue and the special plea in bar, was a waiver of any and all matter in abatement. But upon any construction of the statute, the plea in abatement must be pleaded before the final disposition of the cause by the verdict of a jury in the Court below.
    This law which we have been discussing, we believe has never been settled by the construction of this Court ; and we have deemed it due to ourselves in the discharge of our duty in this case, to submit these remarks, regarding the mode and time of bringing the fact of transfer before the Court below, in connection with the great question on the merits of this case, upon which we rely so confidently for an affirmance of the judgment of the Court below.
    
      
       The briefs of the counsel for plaintiffs in error, were, by some accident, lost before the papers in the case were placed in the hands of the Reporters.
    
   Mr. Chief Justice Sharkey

delivered the opinion of the Court.

Baldwin, Vail, and Hufty instituted this suit against the plaintiffs in error on two promissory notes, each for the sum of ¡$¡6283.95, payable at the Merchants Bank in New Orleans, one at sixty, and the other at ninety days from the 4th cf December, 1839.

The jury returned a special verdict, by which it appears that the two notes were made on the 4th of December, 1839, by James Payne, Abner E. Greenland Robert Y. Wood, and on the same day delivered to the Mississippi Railroad Company for and on account of Payne ; and that the notes were discounted by the company, under their banking powers, on the same day at the instance of Payne, who received the proceeds ; and the company became thereby the holders of the notes, which were presented for payment at maturity ; and on payment being refused, were protested, and remain unpaid. The Mississippi Railroad Company being indebted to Baldwin, Vail and Hufty, on the first day of April, 1841, transferred to them the notes in payment of the debt. If upon these facts the law was for the plaintiffs, then they found for them ; but if the law was for the defendants, they found for them. ■ The Court gave judgment for the plaintiffs, and the. defendants brought up the case by writ of error ; and the sole question is, had the bank, at the time, mentioned, a right to transfer its negotiable securities, in the face of an act of the legislature, previously passed, prohibiting such transfer ?

The language of the prohibition is as follows : “ That it shall not be lawful for any bank in this State to transfer by indorsement or otherwise, any note, bill receivable, or other evidence of debt; and if it shall appear in evidence upon the trial of any action upon any such note, bill receivable, or other evidence of debt, that the same was so transferred, the same shall abate upon the plea of the defendant.” This, it is insisted, is in violation of that provision in •the Constitution of the United States, which declares that no State shall pass any law impairing the' obligation of contracts, and therefore void, inasmuch as it impairs a right conferred upon the bank by its charter to transfer promissory notes.

We are referred to the adjudged cases on this subject, beginning with the great case of Dartmouth College v. Woodward, 4 Wheat. 518, which has been followed by others of high authority, all holding that a charter to a private corporation is a contract within the meaning of the) Constitution, and that any act of a State legislature, which abridges, alters or materially changes, any corporate right secured by the charter, without the consent of the corporation, is void, as being repugnant to the Constitution. By some of these authorities, a hank is held to be a corporation of this description. If the correctness of this doctrine rested alone on positive authority, it would be rashness at this day to question it, but it commands the entire approba-bation of judicial reason, and deserves to be-venerated for its purity. Legislation which impairs chartered rights is not only at war with the Constitution of the United States, but it is repugnant to a similar provision in our State constitution, and on that account would be inoperative. But if both these instruments were silent as to the power to impair the obligation of contracts, such legislation is essentially repugnant to the protective spirit of a well organized government. In a government like ours, such power is totally out of the range of legislative authority. We are'governed by a written Constitution, which is a limit to the exercise of power, and by which certain-great principles are expressly excepted out of the general powers of legislation. No one can be deprived of his life, liberty, or property, but by due course of law, and the spirit of this provision extends undoubtedly to franchises granted' to a body corporate. Government is designed for the happiness and safety of the people, for their security in the enjoyment of whatever right- they may have acquired, and it is immaterial whether the right has been acquired by grant from the State or from an individual. The State must observe good faith as well as individuals, and she can no more withdraw what she has granted than can an individual, unless she has reserved the power to do so. She may grant upon condition, express or implied, and the right may be forfeited, but it cannot be withdrawn at pleasure. The Parliament of Great Britain claims to be omnipotent, and may possess the right to annul coporate rights, but it does not exercise it. Our constitutional provisions were designed as checks against the exercise of any power which is destructive of private vested rights.

A bank charter is as good an example of a contract within the meaning of the Constitution, as any that could be given. The State either voluntarily tenders, or grants, on the application of individuals, it is immaterial which, individuality and immortality to an artificial or legal person, and confers upon it certain powers, on the condition of acceptance and investment for the purposes of carrying out the objects of the charter. When it is accepted and acted under, the privileges secured or granted are irrevocable, as much so as if the grant had been made to a private individual; and it is immaterial whether the benefit to the State or the public is actual or ideal ; it may even prove injurious, but this will not alter the invio-liability of the contract. The State must keep its proffered faith.

This being the law, then, there is but one point left to determine ; and that is, has there been an infraction of chartered rights ? bias the obligation of the contract with the" Mississippi Railroad Company been impaired ? If so, the act is void. But if, on the contrary, the rights granted have not been impaired, the act is valid. We cannot declare an act void, unless there has been a palpable infraction of a constitutional provision. It will not do that by possible construction it may conflict with the Constitution, because a construction which produces confliction is to be avoided, if any other can be fairly given.

It is said the powers of the bank are coextensive with those of any bank in the State, under a general provision in the supplement which authorized the company to “ exercise all the usual rights, powers, and privileges of banking, which are permitted to banking institutions in this State.” As it possesses all the powers of any other bank, the charter of the Planters Bank is resorted to as best showing what those powers are, by the 6th section of which it is declared, that the bank shall be able and capable inlaw to have, possess, receive, retain, and enjoy to themselves and their successors, lands, rents, tenements, hereditaments, goods, chattels and effects, of what kind soever, nature and quality, not exceeding in the whole six million of dollars, including the capital stock; and the same to grant, demise, alien, or dispose of for the good of said bank.” It is under this section that express power is claimed to transfer notes. The 17th section confers power to receive money on deposite, to discount bills, of exchange and notes, to make loans, &c., but is silent as to the power to transfer notes, and we are to determine whether counsel are right in supposing that the power was conferred by the 6th section.

The first thing which strikes us as rather remarkable, is, that the power to transfer notes is claimed under a section which does not even authorize the bank to take notes, unless it be by a very remote implication. The 6th section never was designed to perform such an office. This becomes manifest when we follow up the charter, and find in a subsequent section- an express provision authorizing them to- discount notes and bills. But, say the counsel, notes are “effects,” and the power to dispose of effects is equivalent to a power to assign notes. The word “ effects” is very comprehensive in its signification, it is true, but when we come to construe the words of a law, we must look at the context to arrive at their true meaning. When we come to do.this, it seems more than probable that the legislature, in using the word effects,” had no idea that they were regulating the transfer and ownership of promissory notes. To discount notes and bills, is the principal business of a bank, and being so, the legislature was specific in granting authority to do so-Would it not seem like very awkward legislation in creating a bank, to leave it with only a general power to take “ effects,” and to dispose of them for the good of the bank ? It would, and hence we fairly conclude, that in this instance the 6th section had. reference only to the property of the bank, and not to its cboses in action, or more properly, its notes.

But there are other considerations which are entitled to more weight. We are informed that a corporation possesses only those powers or properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. Dartmouth College v. Woodward, 4 Wheat. 518. The incidental or implied powers must not be construed to embrace everything. They are at rnqst only such powers as are essentially necessary to enable the corporation to fulfil its destiny, — to do those things which it may do by express permission. Such powers, it may be presumed, were intended to be conferred.; they are implied from those which are granted. In order to ascertain, then, what has been granted, we must look only to the grant solely, and it will be well to keep out of view the general provisions of the law, and consider of the grant as though no such provisions existed. The right to transfer notes is claimed under the charter. In England, notes received their negotiable character from the 4lh and 5th of Anne ; before that time, they were not assignable, it being a general principle in the Common Law, that choses in action were not assignable. With us they derive the character of negotiability from a statute, which declares, that all bonds, notes, &c., may be assigned by in-dorsement, and the indorsee may maintain an action in his own name, and recover, subject however to offsets acquired before notice of transfer. H. & H. Dig. 373. Now let us sweep this statute from the statute book, and suppose that no such law had ever existed, could any one imagine in such a case, that this bank charter made notes negotiable by indorsement, and enabled the holder to sue in his own name and recover ? Does it perform the office of the statute of Anne and of our own statute, and enable the bank, in the legal and mercantile sense of the term, to .assign its notes by indorsement ? To these questions there can be but one answer, and that in the negative. If notes are negotiable under this charter, they may be negotiated so as to deprive the maker of his offsets, for it contains no provision for him. This right is secured to him alone by the general law providing for the negotiation of paper. Yet I suppose no one would contend that offset's acquired against the bank, before notice of assignment, would not be available against the note in the hands of any holder. Then, I apprehend, that counsel are mistaken in supposing that the charter gives express authority to assign notes. If the, bank has such power, it must, in some shape or other, derive it from the general law regulating -this subject, for we cannot say that the right to dispose of effects confers any right to indorse a note so as to enable the indorsee to maintain an action in his own name. The ought to dispose of effects is a right which was always enjoyed by every individual, and yet statutes, specially framed for the purpose, have been thought necessary, both in England and America, to enable the payee of a note to transfer it.

But it is also insisted, that independently of the grant to this corporation, it is incident to it at Common Law to have a capacity to purchase and alien lands and chattels. That is true, if by the law the property may he sold or disposed of. The jus disponendi is an incident to property, it is not an incident to the corporate rights in that broad and unqualified sense contended for. The authority given to this bank to dispose of the property which it was authorized to acquire, was mere supererogation ; it had that power without the grant, to the same extent that it has with it, for the charter gives nothing but a general authority. But the power to hold and dispose of property, only enables the corporation to take it with all its incidents, and so to dispose of it. ThejMs disponencli is regulated by the general laws of the State, as well in reference to corporations as to individuals, unless by an express grant their property is exempted from the operation of those laws, or unless, by providing another ample mode, the legislature should so plainly indicate an intention to make an exemption, as to leave the matter beyond doubt. This charter grants no independent or distinct power to dispose' of property. It gives the power to hold property and dispose of it, but it is silent as to the mode of disposition ; the consequence is, that it must be disposed of according to the general law. All that was meant, by the grant of power to dispose of property, was, to give that power, if by law the property was in its character alienable or vendible, and this, too, is the extent of the Common Law power. In this respect the corporation stands precisely on a footing with natural persons. They cannot sell that which it is illegal to sell, or which is not transferable from one to another. And in selling that which may by law be disposed of, the general law must be followed. The right to dispose of it must depend upon the law of the property. As these laws are alterable at the pleasure of the legislature, the corporation cannot claim exemption from the effect of these alterations, unless by express stipulation the legislature has consented to grant such exemption. These changes cannot affect vested rights of course, but they are binding on the corporation in all subsequent transactions. Suppose this corporation were selling its real estate, would it not follow the law of conveyances as it existed at the time of making the conveyance ? Surely it would', because the charter gives' it no power to convey in any other w.ay. Could it convey in fee tail ? It could not, because it has no grant of exemption from the general law.’ Private property may be appropriated to public uses, on just compensation made. Could it be said that the corporation, because its charter authorized it to hold property, was exempt from this provision ? The bank then holds its property subject 'to such exactions, restrictions, or incidents, as are imposed by law on the property of individuals, unless they are removed by the charter. This corporation has power to take promissory notes. Negotiability is an incident or quality attached to notes by law, not by the charter. It does not constitute an essential ingredient in a note. It does not strengthen the contract between the maker and payee, npr does it constitute any part of that contract ; and as it was a privilege enjoyed by the corporation solely under the general law; it is one which was taken from them by the repeal of the law. The charter gives them no guaranty that the law should not be repealed. It was a subject over which the legislature had entire control when the charter was granted, and this, like all other subjects, is still subject to that ■control, unless a clear and positive restriction has been imposed. The power of the legislature is not to be taken away by construction. If the charter had granted power to assign these notes so as to enable the assignee to maintain an action in bis own name, then the right would have been beyond the control of the legislature. Or if this were a power essentially important; to enable the bank to carry on its business, apd' necessarily implied by the charter, then the question would be different; but it is not. It may be very convenient for a bank to transfer its securities, but certainly such power is not essential to its existence, or to its capacity to do banking business. A contract is not impaired in its obligation, unless some right or privilege which has been granted, has been defeated or abridged. The legislature did nothing but take from promissory notes an incident which they had previously given them. The substance of the note itself was not changed, and the charter does not guarantee to the corporation that such notes should remain negotiable. As well might it be insisted that the whole code of laws, with regard to property, was unchangeable as to the property of this corporation ; that taxes should not be increased, or imposed on any article that was not then taxable.

These views accord with the decision of the Supreme Court of the United States, in the case of the Providence Bank v. Billings & Pittman, 4 Peters, 514. The bank insisted, that it was exempt from the operation of a law subsequently passed, imposing a tax on bank stock. It was held, that the taxing power was important to the government, and that nothing but an express exemption would exonerate property of the bank from the general power of the legislature to impose taxes on it. This may be said with truth of all the legitimate subjects ofdegislation ; they are important to the government ; some, it is true, more so than others ; and we cannot assume that .any branch of it has been abandoned, without an express' declaration to that effect. “ The power of legislation (said the Supreme Court), and consequently of taxation, operates on all persons and property belonging to the body politic. This is an original principle, which has its foundation in society itself. It is granted by all, for the benefit of all. It resides in government as a part of itself, and need not be reserved when property of any description, or the right to use it in any manner, is granted to individuals or .corporate bodies.” Another portion of the opinion in the case referred to, which was delivered by Chief Justice Marshall, will apply in the present case, with still greater force. “ The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men. This capacity is always given to such a body. Any privileges which may exempt it from the burthens common to individuals, do not flow necessarily from the charter, but must be expressed in it, or they do not exist.” For this corporation is claimed a privilege, — the privilege of exemption, from legislative action on one of the legitimate subjects of legislation. Such a privilege is not expressed in the charter, and therefore does not exist. They claim that the law regulating the negotiability of promissory notes, shall remain as it stood when the charter was given. The alteration in the law does not deprive the corporation of any granted franchise, — it does not take away from it any of its property or effects, —it does not impair the obligation of any contract that had been made. The assignment of a note is a new contract, the power to make which was derived from the law, and the new law simply takes this power from the corporation. It amounts at most to a mere modification of the use that may be made of a promissory note, leaving the corporation the full power to use their notes according to their legal effect. The obligation of the contract in this instance, is the duty the State is under to secure to the corporation the full enjoyment of all that was granted ; but it is no part of the obligation that the State should withdraw its power of legislating on proper subjects for legislative action, because by such legislation a particular kind of property, which the corporation may hold, may be rendered less useful to it. For these reasons we think the law on the special verdict was for the defendants, and there is nothing in the pleadings which can change the judgment.

Judgment reversed, and judgment for defendants.  