
    The Commercial Bank of Rodney vs. The State of Mississippi. The Commerical Bank of Manchester vs. The State of Miss. The State of Mississippi vs. The Bank of Port Gibson. The State of Mississippi vs. The Grand Gulf Bank.
    An information in the nature of a quo warranto, filed by a district attorney of this state in one of the circuit courts thereof, under the provisions of the act • of 1843, (Sheet act, p. 52,) which makes it the duty of any district attorney who shall have reason to believe that any bank in this state has been guilty of a violation of its charter, or upon affidavit of one or more credible persons to that effect, forthwith to file such information, is a civil and not a criminal proceeding.
    The provision in the act prescribing the mode of proceeding against incorporated banks for a violation of their charter, which authorizes upon the filing of an information against any bank, an injunction to issue restraining all persons from the collection of any demands claimed by such bank or their agents or assignees or other persons, does not impair the obligation of any contract between such bank and the state, and is not a violation of the constitution of the United States.
    The provision in the sixth section of the act of 1843, directing the mode of proceeding against banks for a violation of their charter, which makes it the duty of the clerk of the circuit court, upon the filing of any information against a bank, to issue as a matter of right on the part of the state, an injunction to restrain all persons from the collection of any demands claimed by said bank or its agents, or assignees or officers, is not a violation of the constitution of this state and does not confer judicial power upon the clerks of the circuit courts whose duty it is made to issue the injunction. Sharkey, C. J., dissenting.
    
    The four cases above named were argued and submitted to the.court at the same time. They were severally proceedings in the circuit courts respectively of Yazoo, Clairborne and Jefferson counties, under the law passed and approved July 26, 1843, entitled “ An act to prescribe the mode of proceeding against incorporated banks for a violation of their corporate franchises, and against persons pretending to exercise corporate privileges, under acts of incorporation and for other purposes.”
    For the proper understanding of these cases, it will be necessary to state thesubstance of this law. The first section was in these words: “That it shall be the duty of each and every district attorney in this state, whenever he shall have reason to believe, or whenever the affidavit of one or more credible person or persons shall be presented to him, stating that he or they have good reason to believe, and do verily believe, that any incorporated bank, located within his district, has been guilty of a violatiqn of any of the provisions of its charter, or has done or omitted to do any act or acts the doing or omission of which would in law work .a forfeiture of its charter, or is commanded or prohibited by its charter, or any statute of the state in relation to banks, forthwith to file a bill in the clerk’s office of the circuit court of the county in which such bank shall be located, an information in the nature of a quo warranto against such bank, upon the filing of which information, it shall be and is hereby made the duty of the clerk of such court to issue the proper process against such bank, returnable to the term of the circuit court aforesaid, next succeeding the day on which such. information shall be filed.” The second section is in all respects similar to the first except that it is made the duty of the district attorney to file this information when he has reason to ■ believe or is presented with an affidavit setting forth that the affiant has reason to believe, and does verily believe that “ any corporation, person or persons are exercising, using and enjoying within the district of such district attorney, without legal warrant and authority, the franchise of being a banking corporation.”
    The third section provides the mode of serving any process issued against any bank under an information filed according to the act.
    The fourth section enacts that the information, when thus filed shall be docketed on the common law issue docket; shall be tried at the first term of the court by the ordinary jury in attendance upon the court when an issue in fact is presented, and shall have priority over other cases.
    
      ThQ fifth section excepts the application of the law to the funds which legitimately belong to the State of Mississippi; to the Commercial and Railroad Bank of Yicksburg or to the west Feliciana Railroad and Banking Company, so as to affect the railroads and their operations.
    
      The sixth section is as follows: “ That upon information being filed in pursuance of this act, it shall be the duty of the clerk as a matter of right on the part of this state, to issue an injunction or injunctions to restrain all persons from the collection of any demands claimed by said bank or banks, person or persons, or assignees or corporations and all their officers and agents, or other person or persons, until the said information be finally tried and determined, and said injunction shall have the office and effect of an injunction in chancery; which injunction shall be served by the sheriff or other proper officer of the county in which said information may be filed upon such corporation, bank, assignee or assignees, if any there be, person or persons, or their officers or agents, in like manner as injunctions in chancery are served.”
    The seventh section provides that none of the provisions of the act should be so construed as to prevent any bank from suing out attachments in the same manner and for the same cause that other creditors were allowed lawfully to do.
    The eighth, ninth and tenth sections enacted that upon judgment of forfeiture against any bank or corporation, the debtors to such bank or corporation should not be released thereby from their debts and liabilities to the same; but that the court rendering the judgment of forfeiture should appoint one or more trustees to collect the debts due to the corporation, to sell and dispose of all of its property and the proceeds to apply in payment of the debts of the corporation as they might thereafter be directed by law. The trustees are required to give bond for the faithful discharge of their duties, and upon embezzlement of any of the assets of such banks as might be placed in their control, and the conviction thereof, they, in addition to the payment of their bond, are to be punished by not less than two nor more than ten years imprisonment in the penitentiary.
    The eleventh section provides that the act shall not be construed so as to release any one interested in or connected with any bank from his individual liabilities for any fraud or mismanagement of the same.
    
      By the tioelflh section it is ordered that the act should take effect from its passage.
    On the 19th day of October, A. D. 1843, William H. Compton filed in the clerk’s office of the circuit court of Jefferson county an affidavit setting forth that the Commercial Bank of Rodney, located in that county, had been guilty of a violation of its charter in issuing post notes of a less denomination than twenty dollars, and putting them in circulation since the passage of the law prohibiting such issues ; that the bank had for some time past failed, and refused to pay her liabilities in specie; that he had good reason to believe, and did believe, that the bank had taken more interest than allowed by her charter; that the bank had made an assignment of all its assets and effects of every description to Thomas Freeland and John Murdock; and that the affiant had reason to believe, and did believe that the directors did not meet to manage the bank, and that the bank had in many other respects done and omitted things, the omission and commission of which were in violation of its charter.
    Whereupon Stanhope Posey, the district attorney of that district filed in the said court an information under the act, predicated upon the affidavit of Compton, and charging the Commercial Bank of Rodney with the usurpation, and exercise without any warrant, grant or charter, of the various privileges, franchises and liberties that ordinarily appertain to banking incorporations. Upon this information process and injunction issued by the clerk of the court according to the act; and the bank, at the next term of the court, appeared by counsel, and plead in bar of the information, her act of incorporation, passed on the 27th of February, A. D. 1836.
    At the same term of the court, Freeland and Murdock appeared, and moved to quash the writ of injunction issued by the clerk. 1. Because it was a judicial act, which could not be performed without the fiat of a judge; 2. Because it issued without authority ; 3. Because the writ issued at the instance of the state alone, and not upon the bill or complaint of any debtor of the institution; 4. Because the writ was in contravention of the constitution of the state; 5. Because the writ issued before a judicial declaration of forfeiture; 6. Because the issuance of a writ of injunction was the exercise of equitable powers; 7. Because the bank had made a bona fide assignment of its effects to said Freeland and Murdock for the benefit of its creditors.
    On the trial of the motion the assignees read the deed of assignment to the assignees, which was dated the 28th of March, 1843, and was filed for record the 11th of April of the same year. It is not necessary to notice the peculiarities or contents of the assignment for the benefit of the creditors of the bank, as the merits of it were not brought in question. The court overruled the motion, and exceptions were taken.
    The bank then moved, for the same reasons, to quash the injunction, and, in addition to the deed of assignment, proved that the property described and embraced in the schedule annexed to the deed of assignment, was of greater value than five hundred dollars; the court also overruled this motion; and exceptions were taken, and a writ of error prosecuted by the bank.
    At the May term, 1844, of the Yazoo circuit court, Robert O. Perry, the district attorney of that district, filed an information under the act, against the Commercial Bank of Manchester; process and injunction issued as prescribed in the act; the bank at the same time appeared and plead in bar of the information her act of incorporation, on the 26th of February, 1826, and asserted a complete compliance with the conditions contained in the charter.
    The district attorney filed twenty replications, setting up as many alleged violations of the charter of the bank; to which replications rejoinders were filed by the bank, tendering issues upon all of the replications but the 14th; to which the state put in a surrejoinder, upon which the bank, by a rebutter, tendered an issue. It is not deemed necessary to notice at greater length these pleadings, as the case turned upon the principles of the law, and not the specifications involved in the pleadings.
    
      Upon these issues a jury was empaneled, who could not agree upon a verdict, and a juror was withdrawn.
    The bank then moved to quash the injunction because, 1. The act was unconstitutional in ordering an injunction before a declaration of forfeiture. 2. For ordering it to be issued by the clerk. 3. The court had no jurisdiction of the writ of injunction. The court overruled the motion, and the bank appealed.
    At the May term, 1844, of the circuit court of Claiborne county, Elbridge G. Walker, the district attorney of the district in which that county is situate, filed an information under the act against the Bank of Port Gibson, for the unwarrantable exercise of corporate privileges; process and injunction issued, and were served; the bank appeared, and moved to quash the proceedings. 1. Because a similar proceeding was then pending before the high court of errors and appeals. 2. Because the proceeding was criminal in its nature, and was not found by a grand jury. 3. Because the court had no jurisdiction of the proceeding, from the unconstitutionality of the law. 4. Because the district attorney had no power, ex -officio, to institute the proceedings. 5. Because it- was filed without leave of the court. 6. Because the information issued without sufficient affidavit. The court, upon argument, ordered the information to be dismissed, and the injunction and quo warranto discharged ; and appeal by agreement was taken.
    At the same term of the same court, the same district attorney commenced similar proceedings against the Grand Gulf Railroad and Banking Company; and the court, upon argument, made a like decision, from which a similar appeal was taken; and all the four cases were submitted and argued at the same time.
    
      W. R. Miles, for the Commercial Bank of Manchester.
    That the injunction should have been quashed, I will attempt to show by the following reasons:
    1. The act of 1843, under which it issued, is repugnant to the 1st article of our bill of rights; for, by the 5th section, the. Commercial and Railroad Bank of Vicksburg, and the West Feliciana Railroad and Banking Company, are excepted from its operation. The funds belonging to the state, as a stockholder in any of the banks, are also exempted. I need not argue that this system of partial legislation, embracing only a portion of a 'particular class of persons, is void upon general principles'. 11 Mass. R. 396. 2 Yerg. R. 260-265, 554-599. 4 lb. 202-307. 5 lb. 320-322. As to the state, see 9 Wheat. 904, 678.
    2. It impairs the obligation of the contract, between the state and the corporation.
    By the charter, the bank is clothed with power to discount notes, deal in exchange, sue and be sued, &c. The 6th section of the act provides for the issuance of an injunction, eo instanti with the filing of the information, restraining the bank from the collection of any demand due it. To collect its debts is an incidental power, indispensably necessary to the existence of a banking incorporation. But the act of 1843 takes away this right. It therefore “ impairs the obligation of the contract,” between the state and the corporation. Upon general principles, it has long been settled, that the mere commission of an act by the bank, in violation of its charter, does not, ipso facto, annul it; it is only the judgment of ouster, by which the state reclaims her franchises, that vacates it. Until the jüdgment of ouster is pronounced, the bank, by the terms of its charter, may legally continue to exercise all the rights and privileges stipulated for in the charter. See 6 Barn. & Cress. 703. 13 Eng. Com. Law R. 299-302. 4 Wheat. R. 518-641. 5 Johns. Ch. R. 366-378. 9 Wend. 382.
    3. It by implication repeals the most vital portion of the bank’s charter. Since the great case of Woodward v. Dartmouth College, 4 Wheat. R. 518, it has never been seriously questioned, that the legislature cannot repeal a corporation charter. It is equally clear, that the legislature cannot take away a power implied in the charter, or necessarily incident to the grant. 9 Wend. R. 351, 392, 393. But the 6th section of the act of 1843 does take away from the bank an implied power. A stop is put to its collections. The bank is rendered powerless to assert its rights; for without the energy to enforce its demands, the privilege to contract would be worse than a shadow. The power to collect its debts is, beyond question, one of the most essential features in the charter. Without it, the bank could not'exist. But the act of 1843, which takes away this power, to that extent repeals the charter, which, as we have seen, is beyond legislative control. 9 Wend. R. 351, 392, 393. 4 Wheat. R. 518-641.
    4. It violates the 16th section of the 4th article of the constitution of Mississippi, by conferring equity jurisdiction on the courts of law. When a technical word is used in a statute, it must be construed by its fixed technical meaning. An injunction, as is well known, belongs only to a court of chancery. Its office and purposes are too familiar, to both bar and bench, to require any argument at my hands. This writ, which belongs exclusively to a court of equity, has, by the act of 1843, in violation of the 16th section of the 4th article of the constitution, been given to the courts of law.
    5. The injunction is void, because no fiat of any person authorized by law ordered it to issue. At best, it issued under a mere legislative mandate, and, of right, ought to have been made returnable before the same enlightened tribunal that ordered its issuance. The act, in terms, grants a general fiat, in anticipation of the affidavit or information, and directs the clerks to issue injunctions, returnable into the common law courts. This the legislature had no right to do; for the government is divided into three distinct departments, neither of which can assume the duties devolved upon the other. Article 2, sect. 1 and 2 of the Constitution. Granting an injunction is, unquestionably, a judicial act. 1 Hopk. Ch. R. 596. A legislative fiat for an injunction is, therefore, as void as would be the judicial enactment of a law. 10 Yerg. R. 59, 69.
    I venture the prediction, that the act of 1843 will, in all time to come, rank as one of the “curiosities in legislation.” It is a grotesque grouping of conflicting rights an^.. incoherent remedies. It is a strange amalgamation of legislative, common law, and equity jurisdiction. The ingredients of which it is compounded are as numerous, and the “ chai’m ” sought to be worked out of its “ bubbling boil ” as startling, as were the ingredients used and the charm invoked by Macbeth’s witches. By its provisions, the fashionable play of “ a New Way to Pay Old Debts,” is attempted to be played off on the stage of real life; the science, if it may be so called, of financiering, has crept out from behind the counters of merchants and brokers, thrust itself with a professorship into the halls of legislation, and demands perpetuity, by taking a stand upon the statute books of the state. It was said of a learned schoolmaster, that “ he had lived in the alms-basket of words, and stolen scraps from all languages.” With as much truth may it be said, that the learned legislators who concocted this act had fed upon the absurdities of legislation, and stolen scraps from its worst and meanest parts.
    In long years to come the curious inquirer will ask, what was the ostensible object of this act 1 A voice from the tomb of this generation’s patriotism will answer, “ to wind up the banks ! ” But when he shall ask what was its real object 1 the calm voice of historic truth will answer, “ to avoid the payment of honest debts.” For the fact is not to be disguised, that the received opinion of bank debtors now is, (the 8th section of the act to the contrary notwithstanding) a judgment of ouster will annul all their obligations to pay.
    I may be permitted to remark, in conclusion, that the only plausible violations of charter, assigned in the numerous specifications filed, the manner in whicli the stock was paid in, has been expressly waived by the state. See Journal of the House for 1838, pp. 138, 142, 144; Acts of 1S37, p. 217; Acts of 1838, p. 176, 188, 332; Acts of 1840, 33-21. Senate Journal for 1838, 121-126.
    (S'. (S'. Prentiss, on behalf of the Commercial Bank of Manchester and the Bank of Rodney.
    These causes come up on appeal from the decision of the courts below, overruling motions to dissolve the injunctions. The injunctions were issued by the clerks of the circuit courts, under the provisions of the 6th section of the act of 1843, entitled “ an act to prescribe the mode of proceeding against incorporated banks,” &c. &c.
    I take the ground that said 6th section is unconstitutional and vioid.
    1st. Because it impairs the obligation of the contract between the state and the bank, in this ■ — the charter gives the bank power to sue ; in other words, to collect its demands.
    The 6th section of the act of 1843 directs, as a matter of right on the part of the state, an injunction restraining the bank from collecting its demands, during the pendency of an information against it.
    I admit, that the legislature might authorize the judicial authority to grant an injunction, or restraining order, in relation to any matter involved legally in the issue, as a part of the remedy. But I deny that the injunction directed by the 6th section, has any relation to the issue between the parties to the information ; to wit, the bank and the state.
    
    The issue is, simply, the question of forfeiture of the franchises, granted by the state ; the pleadings present no other.
    Enjoining the bank “ from collecting her demands,” is no part of the remedy; it can neither advance, retard, nor in any possible way affect it.
    It cannot affect the funds or interests of the state ; for by the 5th section of the act it is expressly provided, that “ the provisions of the act shall not extend to funds which legitimately belong to the state,” &c.
    It cannot be claimed as a provision to prevent the wasting of the assets of the bank;, for the injunction does not’prohibit the bank from disposing of any of her assets, either real or personal, including the very demands she is forbidden from collecting ; these demands may be voluntarily paid by the debtors. Besides, to show the object of the injunction is not to prevent waste, I repeat, the state leaves her own funds unprotected by the injunction.
    
      It cannot be to prevent renewed violations of the charter ; for the bank is not enjoined from exercising any of the franchises which the pleadings aver to have been violated. She can still discount notes, issue paper, sell property, and do everything her charter authorizes, except “ collect demands.”
    What, then, is the “ office and function ” of this injunction, ordered by the legislature, in every case of an information 1
    
    It is a mere arbitrary denial of the right to “collect demands,” not as a part of the “remedy” of the “information,” (with which it has no connection,) but as a distinct, independent act of the legislature, repealing, pro tanto, the charter, without cause or consideration ; and, therefore, a clear violation of the obligation of the contract.
    It is true it is directed to be issued simultaneously with the filing of the information, and to continue only till its final decision. This does not make it a part of the remedy, for it exercises no function in that remedy; it is but an arbitrary appointment of the time when -the injunction shall commence -and cease, as if the act had said, the injunction shall issue at the commencement of a term of the court, and cease upon its adjournment.
    I think I have shown that the injunction authorized by this 6th section has nothing to do with the information, and has no other function than to protect recusant debtors from the operation of the laws of the land.
    If, then, this injunction be no part of the remedy, it is a clear violation of the obligation of the contract of the charter, and also in violation of the 14th article of the “ declaration of rights ” of the constitution of Mississippi.
    I contend that the 6th section is unconstitutional and void,
    2d. Because it is an exercise, by the legislature, of judicial power.
    The ordering, or granting, of an injunction is a judicial act; an injunction cannot properly issue without judicial sanction.
    An act of the legislature, enjoining a bank from “collecting its demands,” would be clearly unconstitutional; not merely as violating the obligation of the contract, but as a direct assumption of judicial power. Admit the legislature may direct upon what state of facts an injunction shall issue; still there must be some judicial determination that the required state of facts exists. A mere ministerial officer cannot decide upon it.
    The 6th section requires, upon a certain state of facts, that the clerk of the circuit court shall issue the injunction.
    This is an attempt to clothe the clerk with judicial power. The legislature has no authority to make judges of clerks.
    But again ; the 6th section not only directs the issuance of the injunction by a mere ministerial officer, but also prescribes the term of its existence.
    Now, an injunction must be returnable into some court. When so returned, the question of its dissolution, continuance, or modification, is purely and wholly judicial.
    The legislature says the injunction shall continue, until the information is finally tried and determined.
    This is such a palpable usurpation of judicial power, that it needs only to be stated.
    If the legislature can direct an injunction to continue in force for a stated period of time, they can make it to be perpetual.
    3d. But if the legislature could not deprive the court, into which the writ was returned, of a judicial control over it, then the court below ought to have quashed or dissolved it upon the merits.
    1. Because it does not aid the suit pending, nor does it remedy anything connected with that suit.
    2. Because it is founded upon no allegation in the information or pleadings, nor upon any affidavit or fact, except the fact of an information having been filed, and no evidence was produced to sustain it.
    An injunction, having no object relating to the matter in controversy, or having fulfilled its function, should be dissolved, as a matter of course, on general principles.
    4th. In the Rodney Bauk case, there is a distinct motion on the part of the assignees, based upon the same reasons already assigned, and this, additional one : The. injunction violates the rights of the assignees and creditors derived through the assignment, and therefore violates the obligation of a contract. The injunction undertakes to restrain the rights of third persons ; to wit, the assignees, who are no parties to the information, nor in any way interested in the suit.
    
      It. S. Holt, for the state, in the case of the Commercial Bank of Manchester.
    The position taken against the decision of the court below is, that the 6th section of the act of 1843, directing the issuance of the restraining writ, sought by the motion in the circuit court to be vacated, violates either our state or national constitution, or both, and that the motion should have been sustained on that ground.
    It is urged, in the first place, that this section confers on the clerk of the circuit court judicial powers. But this is untrue in point of fact. That officer does and can, under this section, do nothing pertaining to the judicial office. He neither declares the law, nor applies it to the facts; he pronounces no judgment, sentence, or decree, but, in his ministerial capacity, obeys the explicit fiat of the law, in issuing a writ which is made a writ of right and of course. Such a writ is not judicial in its character, nor is the issuance of it a judicial act. 2 Story’s Eq. 155, in note.
    It is further insisted, that this section confers upon the circuit court such chancery powers, as the constitution has given exclusively to a different tribunal. This position is also unfounded in fact. In the first place, it confers upon the circuit court no power whatever. The writ issued is not issued in consequence of the action of the court, nor is it in any way subject to its control; the power given is bestowed upon the clerk, and the clerk alone. In the second place, the constitution only gives the chancery court exclusive jurisdiction over such matters in equity, as other courts of chancery then, and before that time, had jurisdiction of. 3 How. 254, 255.
    But other courts of chancery had not, when our constitution was adopted, had, and never had, the power of restraining a party from exercising a public franchise, until the right to do it could be decided by information, in the nature of a quo warranto. No court of chancery has ever exercised, or claimed such a power, as falling within the scope and range of its equitable jurisdiction. 2 Johns. Ch. R. 377, 378, 379. Hopkins R. 354. The writ authorized by this section is one which no court ever possessed the power of issuing, under our judicial system. This position of appellant, therefore, is as untenable as the former.
    It is further urged, that the issuance of this writ impairs the obligation of the contract, between the state and the corpora-tors, and of the contracts between the corporation and its debtors, and that this section of the act of 1843 is, for this reason, unconstitutional and void. As the legal obligation of a contract consists in the remedy for its enforcement, the writ does not, in any manner, affect the obligation of the contract between the corporation and the state. The corporation is restrained from taking no step against the state, to enforce, on her part, a compliance with the terms of her contract. True it suspends the exercise of those franchises, before the right of the state to reclaim them has been established by a judicial decision ; and it is also true, that a wrong may thus be done to the corporators. But for this wrong they have an obvious remedy ; the same remedy against the state, which they would have against a private individual who should, upon false pretences, obtain the ordinary writ of injunction, restraining therefrom the exercise of one or all of their privileges. The same remedy which one individual has against another, who, by the abuse of legal process, restrains him for a time from the exercise of his legal rights.
    In one word, this 6th section only so far amplifies the preexisting remedy of the state for the recovery of forfeited or usurped franchises, as to give to her the aid of that- species of restraining process which, in its subserviency to the ends of preventive justice, has been found so useful and necessary in equitable jurisprudence. By the former law the most important privileges of a public nature might be usurped or abused, and the greatest injury be thereby inflicted upon the public at large, and there tvas no mode of proceeding by which such usurpation or abuse could be at once arrested. Under similar circumstances a private citizen could have been at once relieved by injunction, had his individual rights been thus invaded.
    Why should not the law give to the public at large the like protection as the individual, being responsible for the abuse of the remedy which may be given? We insist then that this section merely enables the state to suspend the exercise of franchises claimed by virtue of her grant, and that such suspension, even though wrongful, does not impair the obligation of the contract of the state, but is a mere wrong done to the vested rights of the corporators, for which they have their remedy.
    But this objection to this section, assumes that the corporators have not forfeited their privileges, and that the state is not entitled to reclaim them. We have the same right to assume as true that they have forfeited their franchises, and that the claim of the state is well founded.
    Let us do so, and what is the position of the corporators? They complain that the remedy by which the state enforces her right, and by which they are deprived of privileges to which they have no title, is more prompt and efficacious than it should be.
    This objection to the writ, however, that by suspending the exercise of the privileges of the corporators, it impairs the obligation of the contract between them and the state, is made, we conceive, under a misapprehension of the decisions as to what changes in the remedies for the enforcement of contracts will impair their obligation. The decisions of the supreme courts of Kentucky and of the United States, show that if the remedies given for the enforcement of a contract are taken away, by a state legislature, or greatly diminished in efficacy, the obligation of the contract is impaired, and the party who was entitled to the benefit of such remedies, and who has been injured by their destruction or modification, may well complain. But it has been nowhere decided that a state, by amplifying or adding to the promptitude of preexisting remedies for the enforcement of contracts, impaired their obligation, or that the persons against whom such amplified and efficacious remedies were used could be heard to complain. The distinction is a palpable and important one. The corporators in this case cannot complain of this change in the preexisting remedy, because it does not affect any remedy which the previous law gave them, but only enlarges that which such law gave to the state.
    It is manifest that the question, whether the writ sought to be quashed, or rather the law under which it is issued, impairs the obligation of contracts between the corporation and her debtors, within the meaning of the constitution, depends upon the other question, whether the state can, for the general good, be empowered to suspend the exercise of public franchises alleged to be usurped or used without license, before a decision upon the question of right. For if such power can be conferred, as is done by the act in question, it can make no difference what rights the parties restrained may be prevented from exercising, or what acts they may be prevented from performing. Whether they be restrained from making a contract or enforcing one must be immaterial. That it was competent for the legislature to confer such a power on the state for the protection of great public interests wé think there can be no question.
    We think it inconsistent with no constitutional qualification of the general powers possessed by the legislative department of our state government. The general and familiar rule being that the court will pot declare a law unconstitutional except in cases free from any rational doubt, there is certainly no cause for the exercise of this extraordinary power of the court in this case.
    
      George S. Yerger, for the Commercial Bank of Rodney, and the assignees thereof, and the Grand Gulf Bank, and the Bank of Port Gibson.
    This case involves the same questions of constitutional law, presented and argued in the case of the Commercial Bank of Manchester v. The State.
    
    
      But there is an additional question. This motion is made by the plaintiffs to quash the injunction as to them, because, before the passage of the act of 1843, the bank assigned all its property to them in trust to pay all its creditors ratably.
    The injunction and information issued on the affidavit of --, which stat.es the fact that the bank had assigned its effects to Freeland and Murdock. The injunction issues against them as assignees, and they are enjoined from collecting the debts.
    It thus appears on the face of the record that they, as assignees, were enjoined, &c.
    The record also shows that they excepted to the opinion of the court, refusing to quash the injunction, and the deed of assignment is set out in the bill of exceptions. The judgment of the court refusing to quash the injunction as to them, of course is conclusive upon them, until reversed, or set aside by this court.
    1. I refer to my brief and argument in the case of the Commercial Bank of Manchester v. The Slate, for the points of constitutional law, arising in this case.
    2. The granting of the injunction by the legislature, and its issuance against them by the clerk, is wholly void for Avant of poAver; and because the bank had previously assigned its property to them; and because they were not and could not be made parties to the quo warranto. An order to enjoin a party or person Avhen there is no authority, is clearly void; and a refusal 'to quash or set it aside, is a judgment against the parties making the motion, which the court will correct. It might as Avell have enjoined all persons to Avhom the bank had previously sold any of its property.
    If a judgment, or order of the court is irregular or void, or against the knoAvn rules of the court, they Avill be set aside by notice at any time; as, if a judgment or order is made against a man Avithout notice, or Avith notice, Avhere the court has no power to act. 2 Heyw. R. 73; Taylor’s R. 146; 5 lb. 139; Malthas v. Man, 2 Murphy, 181"; Bender, v. Askew, 3 Dev. R. 147.
    
      3. But whether thé proceeding, quashing the injunction, be void or voidable, the court ought to have quashed it as to these parties, because the bank had assigned its notes, &c. to them long before. And by virtue of that assignment and contract, they have the right and power to collect the debts for the purposes of their trust. The legislature, afterwards ordering them to be enjoined, by injunction, because the bank may have forfeited its charter, is a proceeding that cannot be sustained.
    For, admitting that the charter was actually adjudged to be forfeited afterw&rds, still these parties, by the deed of trust, had the power, notwithstanding such forfeiture, or notwithstanding the corporation had ceased, to collect the debts by virtue of the contract and deed, made previous to its dissolution.
    4. This brings up the question, whether the bank could make this assignment? That it has the power to make a general assignment of all its property, effects, notes, &c. for the benefit of its creditors, is at this day too well settled to admit of dispute. It has been decided in many cases, with which the court is familiar.
    5. The only question then is, whether the 7th section of the act of 1840, prohibits a bank from making such general assignment. j
    
    1. The right to make a general assignment for the benefit of its creditors, is an incident attached to all corporate bodies, who are authorized to hold property and trade. Angelí & Ames on Corporations, 64, 65. The jus disponendi is an attribute or incident annexed and inseparably attached to a corporation of this kind, by the law, as it existed at the time of this grant. 6 Gill & Johns. 371, 216; Dana v. Bank United Slates, decided by supreme court of Pennsylvania.
    Mr. Justice Clayton, in delivering the opinion of the court, in the case of the Commercial Bank of Manchester v. Nolan, 7 How. R. 522, says, “ One of the attributes of a corporation at common law, is, that it may take and grant property, contract obligations, sue and be sued, in the same manner as an individual, unless restrained by charter or by statute.”
    Here then at the time the charter was granted the power to make a general transfer of its paper for the payment of its debts existed as an incident to the corporation.
    By the charter in this case, (see end of 2d section,) it is expressly provided, that this corporation shall have, enjoy and exercise all such incidents as legally appertained to and belong to such corporation. If it has a right or power incident to make a general transfer of its notes and property for the benefit of its creditors, — here express power is given to exercise that right, and it is respectfully submitted, that it cannot afterwards be taken away by the legislature, without such power was reserved in the charter. This section also shows, that under the words, Shall aliene, dispose of its goods, chattels and effects, this power is necessarily given. For these words, whatever their effect might be standing by themselves, yet they are clearly made to embrace notes, &c., for it says, it- may hold lands, goods, chattels and effects, to the amount of three times its capital, <fcc. Now, if the words do not embrace notes, bonds, &c., as a part of the property, it may hold them to an unlimited amount.
    The 7th section of the act of 1840, was not designed to apply to general assignments for the benefit of creditors of the bank.
    The notes and debts due the corporation were obliged to be appropriated to the payment of its debts. The legislature could pass no law to prevent this. The legislature could enact that the bills of the bank should be received in payment. This amounts in law to a payment of so much of the debt of the bank. The assignments provide for this, and if they did not, the law made the issues of the bank receivable for its debts. 6 Gill & Johns. 371.
    The trustees are, in fact, mere trustees of the bank and its creditors, to collect the debts, and pay the debts of the corporation. Whenever they receive payment of a debt in the notes of the bank, it operates as a payment of that much of the bank debt.
    I think it very doubtful whether the legislature can prevent an assignment of the equitable interest of debts, by a corporation, to pay its debt. It might with equal propriety prevent it from assigning its property.
    The right to transfer the interest in equity of choses in action, existed at common law. The right to make a general assignment by a bank, necessarily implies this; and, the legislature might as well, by law, prevent it from assigning its other property.
    3. But again, the act only applies to transfers, that is, transfers of the legal right. The object was to prevent by transfer good money from being paid. If a bank transferred bona fide its paper, it was no longer its property, and the maker would have to pay good money. The words of the act, “ transfer by indorsement or otherwise,” means a legal transfer, by indorsement or delivery. Delivery is only a legal transfer, when the note is payable to bearer, or is indorsed in blank. The language of the act shows this. In the decisions heretofore made in this court, the paper itself was transferred. Chitty on Bills, 8, 9, and notes. It is an inherent right to transfer the interest in equity. Ib. 220, 221.
    It is only by statute that the legal title passes. This may be repealed. But equity authorizes an assignment, subject to all equities, &c.
    In general assignments, like this, the party takes subject to the law, authorizing payment in its own notes. It is an incident to the grant. 6 Gill & Johns. 371, 216 ; Dana v. Bank United States, supreme court of Pennsylvania.
    The act of 1843 could not, after an assignment, which was legal and valid, enjoin the assignees; the right vested in them, whether the bank forfeited its charter or not. The right was in the assignees.
    The cases of the Port Gibson Bank and the Grand Gulf Bank, are also submitted. They present the same questions with this case and the Commercial Bank of Manchester.
    The only difference between these cases and the others is this, that in these cases not only the injunctions, but the informations or quo warrantos were quashed also, and the State put out of court. The State brings up these cases, upon the judgments thus rendered against her.
    
      The informations were quashed upon the ground that they were criminal proceedings, and could not be proceeded in with a finding by a grand jury.
    
      Sanders and Price, for Compton, relator, on behalf of the State.
    The record does not exhibit or show a copy of, nor state the purport of the injunction; and we believe we might stop here and insist that there is nothing in the record showing that the circuit court erred in refusing to sustain the motions, which point we submit to the court for its judgment. It will be recollected by the court that this cause was taken up and submitted by the attorney general, on arguments of counsel for plaintiff in error, and himself, with other causes of like character before it was regularly called upon the docket, in our absence, and that we are now allowed to file this brief by the indulgence of the court, without having heard their arguments or seen their briefs. Yet assuming for argument, that there was in point of fact an injunction issued by the clerk, as provided for by the statute of 1843, we are unable to perceive any error in the decision of the circuit judge in overruling the motion. We shall not discuss separately the grounds for quashing the injunction, but take the position and rely upon it confidently, that it is competent in the law-making power by its enactment, to direct the issuing an injunction by any office'r of the courts of the state against any corporation claiming the exercise of a franchise of its creation, upon the filing an information by a citizen, supported by affidavit, suggesting an usurpation of such franchise, until the matter can be judicially determined, without any violation of the constitution, or impairing the obligation of contract. An injunction is a prohibitory writ, generally issued out of chancery by order of the chancellor or other officer provided for the purpose; the forming and introduction of which writ was originally obtained by a sort of judicial legislation in the English courts, more from convenience than right, save the authority of the king, and does not prevail here beyond our adoption of the writ as it existed, when our courts were created. In our government all political power is inherent in the people, and as it is organized, is divided into three departments. The law-making, the executive, and the judicial, each one confined to a separate body of magistracy, and no person being of one of these departments, shall exercise any power properly belonging to either of the other, except enumerated instances. Art. 1 § 2, and Art. 11, Const. Miss. Blackstone defines law to be “ A rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong.” Rntherforth says, “A law is a rule to which men are obliged to make their actions conformable.” Ruth. Inst. 1. And he further says, “ The legislative power (as defined) implies a power not only of making laws, but of altering and repealing them.” Ib. chap, iii § 3, p. 270. Of judicial power he remarks, “Judicial power is the internal or civil branch of the executive power, exerting itself under such check and control as the legislative power has subjected it to, in order to prevent its deviating from the purposes for which it was formed.” Ib. chap. iii. § 7, p. 274. It is the province and the duty of the judicial department to say what the law is. 1 Kent’s Com. 425. And we admit it to be the duty of the judicial power to declare a law unconstitutional where it violates a constitutional provision or right, for the constitution is the paramount law. Thus defining the powers of legislation and effect of law, and the judicial power, let us inquire whether the issuing of the injunction in this case was the exercise of a power of one department of the government properly belonging to another, and by an officer of one belonging to another. The section of the act authorizing the injunction is as follows: That upon information ■ being filed in pursuance of the provisions of this act it shall be the duty of the clerk, as matter of right, on the part of this state, to issue an injunction or injunctions to restrain ail persons from the collection of any demand claimed by said bank or banks, person or persons, or assignees or corporations, and all their officers and agents, or other person or persons, until said information be finally tried and determined; and said injunction shall have the effect of an injunction in chancery.
    
      There is in this no judicial power, exercised by a person belonging to the legislative one. It is only a legislative declaration of the effect flowing from the exercise of a judicial proceeding, intended to protect one class of citizens against the illegal exercise of an alleged usurpation by another class of a power claimed to be derived from that legislative authority over which the said law-making power holds a reserved, supervising and visitorial right, until the controversy is determined by the judicial department. For here this court will consider that the party enjoined is not a citizen, one in the enjoyment of all his natural rights save the portion surrendered for the purposes of government, but is against a body the creature of legislation, with no other rights save those granted by the act of its creation, and those always subject to its supervising or visitorial power; a controversy between the sovereignty of the state, and a thing of its creation. Would it be unconstitutional for the legislature to enact, that after an address should be moved against any judge of a court of the state, and before a vote taken therefor by the two houses of the legislature, that he should exercise any of the duties of his office 1 or to enact that no judge should receive any salary during the period he should absent himself from the state, dr neglect the discharge of his official duties ? We presume not. There is no declaration in the constitution preventing the legislature from directing the modes of judicial proceeding, or of declaring what shall be the effects of its process, or the pendency of the suit, until it shall be determined. The legislature has passed laws, conferring upon the clerks of circuit courts the power to issue writs of error, with supersedeas, to approve bonds. It has authorized sheriffs to take bonds for the forthcoming of property levied by execution, and gives to their return of “forfeited” the effect of a judgment; these are judicial acts, directed by the legislature, but they are not the acts of the legislature, but are the acts of the officers of the law, connected with the judicial department, and have been maintained by the court. Wanger, Appellant v. Barker, 4 How. 369. Yet is said, “ the granting an injunction is a judicial act, and it cannot be ordered by the legislature to issue without the fiat of a judge or chancellor,” and that the “clerk had no power or authority to issue the injunction.” It is true the granting an injunction is generally a judicial act, but this does not prove that the legislature may not direct its issuances upon a given state of fact, for that department can perform many acts producing the effect of an injunction; it can direct a ne exeat, or bail, and provide what acts of the defendant shall entitle him to discharge. Yet these courts are judicial ones, and the discharge judicial judgments, and are the acts of the courts, and not of the legislature. It can in many cases repeal an act of incorporation, which operates an injunction against the further exercise of a franchise, and it does not always require the fiat of a judge or a chancellor for their issuance, for in the state of New York, by legislative provision, there is appointed an injunction master, who is authorized to grant injunctions on certain contingencies. In Kentucky the legislature has provided that the county courts, composed of justices of the peace, shall appoint two of their body, to whom power is given to grant injunctions in their respective counties. Morehead & Brown’s Digest. And in these states there is, by their respective constitutions, the same division of powers. Yet we have not heard it charge as an exercise of the powers of one department properly belonging to another. In this case the clerk had the authority of the law-making power, to issue the injunction ; and when issued it is in the name of the court, and the judge who presides, and not in the name of the legislature, and is therefore a judicial and not a legislative act. He, as clerk, does not belong to the legislative department, but is an adjunct of the judicial one, and therefore is not a person “ being of one of the departments, exercising a power properly belonging to either of the others;” from which we cannot perceive, by any rules of construction, that the issuing the writ was a legislative act, and therefore unconstitutional, particularly as against a corporation, and in a quasi criminal or penal proceeding; for it has been determined of corporations, that “ in this country, where there is no individual founder or donor, the legislature are the visiters of all corporations founded by them for public purposes, and may direct judicial proceedings against them for abuses or neglects, which at common law would cause a forfeiture of their charters.” Angelí & Ames, 538, and authority cited ; 4 Pick. 443, Parker, C. J.
    We do not deem it necessary to discuss the question involved in the assignment, that “ the injunction is void for being granted before forfeiture judicially ascertained.” This might be maintained as between the corporation and a citizen, where the question could not be collaterally tried; but not so in a contest where the question of forfeiture is the one to be judicially determined at the suit of the state: for if there be no mode of arresting the exercise of usurped banking powers, until a forfeiture is judicially ascertained, the whole body politic of the state might be oppressed by the delays incident to litigation, and the mere creature of the government become superior to its creator. As to the assignees, if their rights depend upon the claims of the corporation, they must stand or fall with it. If they are independent of the corporation, they are but inter-meddlers in the case, and should not be noticed.
    As to the policy of the act of the legislature, directing this procedure, we suppose this court will not consider its office is to define the law as it is made, and, if not in conflict with the constitution, to give it application to the cases presented for its consideration. It might have been more consistent with the otherwise established modes of practice, to have required bond and security to the corporation for indemnity in case of failure in the prosecution, before the issuing the injunction; but a moment’s consideration will remove any doubts on this point, for the sovereign power is here the party plaintiff; the dispenser of law and justice, the supervising and visitorial power over the defendant. The state is supposed to be incapable of doing wrong, and never gives security for the exercise of any of its powers; and we are of the opinion that these corporations should submit to these prosecutions, which are but investigations of the legality of their conduct, with more of grace and complacency than has been manifested by them ; for we regard them with some of the feelings of the Roman emperor, who, in refusing a boon asked by them of him, said, “ that societies of that sort had' greatly disturbed the peace of the cities ; and he observed, that, whatever name he gave them, and for whatever purpose they might be instituted, they would not fail to be mischievous.” We contend that the judgment of the circuit court ought to be affirmed. '
    
      John D. Freeman, attorney general, on behalf of the State.
    This is an information, in the nature of a quo warranto, filed byR. C. Perry, district attorney in the circuit court of Yazoo, under the statute of 1843, which authorizes the respective district attorneys to file such informations against banks within their respective districts which have been guilty of violating their charters.
    The sixth section of the act provides, “ That upon information being filed in pursuance of this act, it shall be the duty of the clerk,'as a matter, of right on the part of .this state, to issue an injunction or injunctions, to restrain all persons from the collection of any demands claimed by said bank or banks, person or persons, &c., until said information shall be finally tried and determined, and such injunction shall have the office and effect of an injunction in chancery, &c.”
    Under this clause an injunction issued by the clerk against the bank, and at May term, 1844, the bank moved to quash the writ of injunction;
    1. Because said act of 1843, authorizing said injunction, violates that provision of the constitution of the United States, which prohibits the States from passing laws violating the obligation of contracts.
    2. Because such injunction clause confers equity powers on the circuit court, and therefore violates the constitution of Mississippi, which gives the superior court of chancery full jurisdiction in all matters of equity.
    3. Because the circuit court had no jurisdiction to issue said injunction.
    Under the first assignment it is assumed, that the issuance of an injunction against the bank violates the contract between the state and the bank, because the bank had a right by her charter to exercise all the powers conferred on it until dissolved by due course of law.
    This position is based upon the unwarranted assumption, that the bank had a legal existence,'and consequently begs the main question at issue. The information charges that the bank has, for the space of six months now last past and more, used, and still does use, without any warrant, charter or grant, banking privileges.” The bank takes issue, and pleads a charter; but the fact that the legislature granted a charter to the bank is no evidence that the bank has not usurped the franchises of banking. When such a charge is preferred, it devolves on the bank to prove an acceptance of the charter, and a faithful performance of all the conditions precedent set forth in the charter, because the franchise never vests in the bank, until the conditions precedent are performed. See 9 Cow. R. 205; 18 Johns. 137, 138; 23 Wend. 206; 15 Ibid. 126, 127; 3 Ark. R. 570; 15 Johns. 358.
    Again, it is argued that the injunction takes away the right of the bank, by its charter, to collect her debts.
    To this I reply, that the bank has acquired no rights under the charter, because a performance of conditions precedent is not shown, and she stands in the light of a usurper of a public franchise, and is therefore not entitled to collect claims. Again, it is not true, in fact, that the injunction takes away any right of the bank, admitting her to have a legal existence. The writ of injunction, as used here, is purely remedial Eden on Inj. 96, note. The power of the legislature over remedies is unrestricted by the constitution and unalienable, so as to bind subsequent legislatures. Bank of Columbia v. Oakley, 4 Cond. R. 443; Young v. Bank of Alexandria, 4 Crunch, 384; 2 Cond. R. 150; 3 Sto. Com. 241, 251, 296. The injunction operates simply to restrain the usurpation of a public franchise; and the power of the legislature to restrain such acts has never been questioned, but, on the contrary, frequently asserted, 6 Paige’s Ch. R. 497; 21 Pick. R. 505; 3 Rev. Stat. N. Y.
    The second ground for quashing the writ- is equally unténable. It is not true that the statute of 1843 confers any equity power on the circuit court. Courts of equity at common law had no power to dissolve corporations. This jurisdiction was peculiar to courts of law. Counsel insist, however, that the granting of a writ of injunction is exclusively an equity power, and therefore that the injunctive power in the act of 1843 was unconstitutional. That statute does not deprive the chancery court of the power to grant the writ of injunction in cases of equity, nor does it confer the power on the circuit court in cases in equity, but it confers the writ in a matter of law; it is a simple extension of the use of that writ. The writ of injunction is nothing but mesne process, and the power of the legislature over that writ, and all other remedial process, has never before been questioned. Bills of discovery are also peculiar to courts of equity, and yet they are granted to courts of law without objection. Anciently in England ail original writs for the commencement of actions at law issued out of chancery ; but that practice has been abolished by statute. The constitution of Mississippi does not confer on the judges of the circuit and appellate courts the power to grant writs of injunction returnable into chancery. That power is granted by statute, and has been exercised without objection during the entire existence of the present constitution. H. & H. 486, sec. 25; Ibid. 532. Neither the superior court of chancery of this state, nor that of England, ever had the power to issue such a writ as the one issued under the statute of 1843, and, consequently, it is not an equity writ in fact, although analogous in its operation, like the common law writs of prohibition and estrepement. 2 Story Eq. PL 156, sec. 864.
    It is contended that the act is unconstitutional, because it excepts the West Feliciana Railroad, and the Commercial and Railroad Bank of Yicksburg. The right of the legislature to waive her right to dissolve a corporation is undisputed, and was admitted by the opening counsel in the conclusion of his argument; but even if that clause of the act were bad, the balance of the statute would stand. 21 Pick. 505 ; and that objection would not affect that proceeding. It is further urged that the legislature exercised judicial power in authorizing this writ. The legislature have simply said when the writ shall issue, by whom shall it be issued, and what shall be its effect. The same legislation exists with regard to all other writs, and yet it is not regarded as a usurpation of judicial power.
    In Massachusetts the same writ was issued by a common law judge, and it Avas held to be constitutional. See 21 Pick. 505. Here' it is issued by a clerk. The principle is the same. Our constitution does not provide that judges or officers of any of the courts shall be laAvyers; and a clerk is as much a judicial officer, when made to do judicial acts, as the judge of a court.
    In this.case the information filed by the district attorney has the office of the fiat of a judge. When the information'is filed, the writ issues in consequence of such information; not, as contended by counsel, in consequence of the fiat of the legislature.
    The objection that the bill is not filed on affidavit, is not well taken. The district attorney may file it either upon affidavit, or whenever he shall have reason to believe that a bank has violated its charter. See sect. 2, p. 52, Laws, 1843.
    In the case of the Bank of Port Gibson, the attorney general presented the following argument:
    A motion Avas made by the appellees in the court below to quash the information filed by the district attorney against them, for the following reasons, to wit:
    1. Because the proceeding is criminal in its nature, and was not found by a grand jury.
    2. Because the court has no jurisdiction of the proceeding.
    3. Because the district attorney has no power, ex officio, to institute such a proceeding.
    4. Because the information is not sworn to.
    5. Because it was filed without leave of the court.
    The court below sustained the motion to quash, from which decision the state has appealed.
    I propose to examine the several grounds upon which the motion was predicated, in the order in which they are presented above.
    I. The position, that an information, in the nature of a writ of quo warranto, is a criminal proceeding, appears to be based entirely upon the ground that, anciently, upon a judgment, either of seisin or of ouster, against a corporation, or those exercising without authority corporate franchises, a fine was inflicted upon the offender ; and it is contended that the right of government to claim, and of the courts to assess this fine, upon a finding against the corporation, never having been abolished by legislative enactment, still exists in full force, and consequently renders the proceeding essentially criminal in its character, and brings it in conflict with the 12th section of the declaration of rights. How. & Hutch. 17.
    Even in the absence of all adjudication upon this point, the position appears to me to be wholly untenable, —
    1st. Because the power to assess a fine does not, in fact, exist, it having been lost or relinquished in England by tacit waiver on the part of the crown, and by non-user for more than a century ; and in this country, never having been claimed or attempted to be exercised by the states or sovereign power. 3 Chit. Black. 263; 2 Kyd on Corp. 399, 439; 1 Bulst. 55; 4 Burr. 2146, 2147; Angelí & Ames, 471; 3 Term Rep. 484; 4 Chit. Black. 313, note 17; 15 Johns. 387.
    2d. Because, even if the power to assess a fine still existed, this proceeding would, nevertheless, be without the purview of the 12th section of the declaration of rights. I deny that the mere abstract power to assess a fine in any particular case, of itself, renders that case criminal in its character. The power of the courts to inflict a fine in all actions, where the judgment is “ in mercy, &c.,” has never been abolished by statute, and yet we presume it will hardly be contended that actions of trespass, &c. are criminal proceedings. Besides, the acts and omissions charged in this information are not “ indictable offences,” and the language of the declaration of rights confines the prohibition to a criminal proceeding by information for an indictable offence.
    
    I consider, however, that this question has been conclusively settled by the supreme court of Pennsylvania. I say conclusively, because it arose upon the clause in the constitution of that state, of which the 12th section of our declaration of rights is a literal copy. The court there say, “ that the constitution refers to informations as a form of prosecution, to punish an offender without the intervention of a grand jury; whereas, an information, in the nature of a writ of quo warranto, is applied to the mere purposes of trying a civil right, &c., and therefore does not fall within the prohibition of the 10th section of the 9th article of the constitution, which declares that “ no person shall, for any indictable offence, be proceeded against criminally by information.” 1 Serg. & Rawl. R. 385; see also 3 Dallas R. 490; Angelí & Ames, 471 ; 4 Cow. R. 102; 15 Johns. R. 387.
    II. The second ground assigned, in support of the motion in the court below is, that the circuit court has no jurisdiction of the proceeding.
    The argument mainly urged and relied upon by counsel, in support of this position, was, that the legislature had provided by law for the institution, in a particular manner, of proceedings against banks charged with violations, &c., of their charters, and had also prescribed the penalty they should suffer, if found guilty, and it was contended that these statutory enactments had the effect of abolishing the common law proceeding, by information in nature of a quo warranto.
    
    If the legislature had, in fact, at the time the information was filed, passed a law regulating the mode of proceeding against corporations, for violations, &c., of their charters, and affixing the penalty they should suffer therefor, we freely admit that such a statute would have worked a repeal of the common law proceeding. We deny, however, that any such act has been passed.
    Section 15, of the act of February 21, 1840, (Acts of 1840, p. 19,) and secs. 1 and 2 of the act of February 15, 1840, (Acts of 1840, p. 22,) were zealously urged upon the court, by the counsel of the appellees, as sustaining the ground assumed by them above.
    The act of February 21, 1840, was passed for the purpose, as its title indicates, of compelling the banks of this state, which were then in a general state of suspension, to resume specie payments within certain periods; and, with a view to effectuate that object, contained certain restrictions upon the power they had previously exercised, with loss to themselves, and injury to the community, of discounting large sums to particular and favored individuals. The 15th section of the act made it the duty of the governor, when he had satisfactory evidence that any bank was acting in fraud, for the purpose of anticipating, or in anywise avoiding the effects of a forfeiture of charter, to instruct the attorney general forthwith to institute proceedings against the bank, and to enjoin the same, according to the provisions of the laws in force, and in use in other cases.
    I am at a loss to conceive how the foregoing section can seriously be contended to point out a new mode of proceeding against corporations, and thereby to work a repeal of the common law. The construction I put upon it is, that it was intended by the legislature to be confined, in the firs't place, to frauds committed by the banks against the provisions of the particular act itself. In other words, that for frauds upon, or violations of the provisions of the act of February 21, 1840, the governor was to instruct the attorney general, &c. But suppose this section to apply to all cases of violations of charter, whether embraced in the act or not, is any other or different mode of proceeding than that at common law, by information, laid down or prescribed 1 I suppose not. The attorney general is required to enjoin the bank ; the injunction could only be granted by the chancellor, in aid of some proceeding at law on the part of the state, against the bank sought to be enjoined, and was evidently intended to be applied for only in such cases as those of removal of assets, &c., &c., by a bank against which “proceedings ” in an information had been, or were about to be instituted. It seems to me, that it would be a palpable absurdity to hold that an act, merely directing the attorney general to institute proceedings against the banks, and in certain cases to enjoin them, without in any manner specifying the nature or form of these proceedings, should be held to abolish in toto the common law mode. Something more definite, I apprehend, must be necessary.
    That it was intended by this act, by the use of the word “ enjoin,” to take from the circuit courts jurisdiction of all cases of proceedings by the state against banks, and to vest that jurisdiction in the chancery court, as was contended for by counsel, is still more preposterous. Such a construction must be ultra-Iatitudinarian.
    Sections 1 and 2 of the act of February 15, 1840, (Acts of 1840, p. 22,) were also much relied upon by counsel. I am unable to discern their applicability. That was an act to prevent unauthorized banking. Section 1 provided that no one unauthorized by law should form, or become a member of &c., a banking association, &c. ; and section 2 affixed the penalty of one thousand dollars to the violation of the provisions of section 1.
    I submit that the circuit court, and that alone, has jurisdiction of this proceeding. It is, strictly, a common law proceeding, and the forfeiture of a charter can be enforced in a court of law only. 5 Term R. 85. 3 Johns. R. 134. 17 Ves. 491. 5 Johns. Ch. R. 380. 2 Johns. Ch. R. 376. Ang. & Ames, 511. As to jurisdiction of circuit court, see How. & Hutch. 480.
    III. The third reason assigned in the court below, in support of the motion is, that the district attorney has no power, ex officio, to institute such a proceeding.
    In England informations, in the nature of quo warranto, are filed by the attorney general, of his own authority, and without any necessity of waiting for instructions from the legislature or crown. In such cases, as in all other official acts, he is accountable to the government for his conduct, but is never required to show to the court any other authority than his own will. It is to be governed solely by his own sense of his duty. 3 Burr. 1565. Ib. 1817. 4 Chitt. Black. 312. 10 Mass. R. 290. 5 Mass. R. 230. 1 Chitt. Crim. Law, 845. Ang. & Ames, 469, 470.
    I contend that the same powers, which in England are possessed by the attorney general, in relation 'to proceedings by information against corporations, are in this state vested in the district attorneys.
    In England the attorney general is the law officer of the crown, and his duty requires him to protect in court all the interests of the crown. There, all franchises emanate from the crown, and their violation, or usurpation, As an injury to it, which the attorney general is bound, virtute officii, to redress.
    In this state the district attorney is the law officer of the state, (except in those cases which go into the high court of errors and appeals and the chancery court, which are exclusively under the control of the attorney general,) and his duty requires him to protect, in the several courts within his district, all the interests of the state. How. & Hutch. 277, sec. 1; 278, sec. 4.
    Here, all franchises emanate from the state, and their violation or usurpation is an injury to the state, and if the corporation or individuals violating or usurping these franchises are located, or reside within his district, then the district attorney is bound, virtute officii, as is the attorney general in England, to proceed against them for such violation or usurpation.
    Counsel have cited adjudications of some of the sister states, to show that the attorney general has no power to file these informations, unless specially thereto required by the legislature. An examination of these decisions will show, conclusively, that every one of them has been predicated upon a special statute, restricting the attorney general from the exercise of these powers, unless upon legislative requisition. In all the states in which no such restriction has been imposed by statute, and this state, I apprehend, is one of them, his powers remain as at common law. 5 Mass. R. 232. 10 lb. 291. 1 McCord, (S. C.) R. 52. 6 Cow. 102. 2 Halst. 101. Ang. & Ames, 470.
    Unless, then, it can be shown that the legislature of this state have imposed some restriction upon the district attorneys, in regard to the filing of informations, I submit that they not only possess the right, but that it is their imperative duty, as guardians, to a certain extent, of the interests of the state, within their respective districts, to exhibit them against either corporations or individuals within their jurisdictions, whom they have reasonable grounds to suspect of a violation or usurpation of franchises.
    IV. The fourth reason assigned in support of the motion is, that the information is not sworn to.
    This objection can be very briefly disposed of, as the authorities speak but one language on the subject. An affidavit is only necessary, where the information is filed by a relator, for the purpose of trying a private right. Where it is filed, either in England by the attorney general, on behalf of the crown, or in this country by the proper law officer, on behalf of the state, either for a violation of charter, or an usurpation of franchises, no affidavit is required. 11 Harg. St. Tr. 270. 4 Black. Com. 312. 2 Wooddes. 562. 1 Chit. Crim. Law, 845. 2 Rol. 115. 1 East, 43. Ang. & Ames, 470-489. 6 Cow. R. 196. 6 lb. 211. Ib. 217. 2 Kyd on Corp. 286.
    V. The fifth and last ground taken, in support of the motion is, that the information was filed without leave of the court.
    Much stress was laid by counsel on this point, and numerous authorities adduced both from the English and American books, showing that leave of the court is necessary, before an information can be filed.
    We have carefully examined nearly, if not all, the cases thus cited, and, without one solitary exception, have found them to be confined to cases arising under the English statutes of 4 and 5 William and Mary, and 20, 22, and 24 of Anne, or under special statutes in the United States, of a similar character. They are all informations filed under these statutes, by private individuals, for the purpose of trying a private right to an office in a corporation. Such informations must not only be filed under leave of the court, but they must be sustained by affidavits. The motion for leave to file them may be resisted, and the party resisting may introduce affidavits on his side, and the courts grant or refuse the leave to file them, at their discretion. 2 B. & A. 339. 2 Johns. R. 184. 3 Burr. 1485. 1 Black. R. 468. Cowp. 58. Doug. 397. 2 Term R. 771. 3 lb. 573. 4 lb. 223. 1 Burr. 433. 8 Mod. R. 165. 1 Str. 677. 2 M. & G. 75. Ang. & Ames, 480-491.
    Where, however, the information is filed on behalf of the crown, or state, for the purpose of seizing franchises which have been violated, or ousting usurpers from their enjoyment, leave of the court is not only not necessary, but in England the courts have gone so far as to refuse it, when it has been asked by the attorney general,- on the ground that he had full power to file it without leave, and had no right to endeavor, by obtaining leave, to throw a portion of the responsibility, which he himself was bound to assume, upon the court. The language of the books is uniform, and the current of authorities unbroken. When the information is filed on-behalf of the crown, or state, not even a dictum is to be encountered to the effect, that leave of the court must be obtained to file it. 3 Burr. R. 1565. 4 lb. 2090. 1 Chit. Crim. Law, 845, 846, 847. 4 Chit. Black. 312. 10 Mass. R. 291. 5 lb. 230. 6 Cow. R. 196, 211, 217. Ang. & Ames, 471-480.
    An information cannot be quashed on motion. 4 Cow. 109. 4 Burr. 2297.
    
      George Í3. Merger, for the Commercial Bank of Manchester.
    The injunction in this case was issued by the clerk of the circuit court of Yazoo county, upon the district attorney filing the information, without affidavit or any statement of facts showing the Bank had forfeited its charter.
    The proceeding is based on the 1st and 2d sections of act of 1843, c. 3, p. 52, of acts of that year. This motion to quash the injunction is made upon the ground that the act, or at least that part of it directing the injunction, is unconstitutional.
    1. It is laid down in the books, that the ancient writ of quo warranto, is a civil proceeding, but that the information in the nature of a quo warranto, is a criminal proceeding. 9 Wend. R. 351; 2 Johns. Ch. R.; 23 Wend. 540, 595, 598; 1 Ark. Rep.; 15 Johns. R. 387; 18 Wend. R.
    
      If it be a criminal proceeding, then the act is unconstitutional, and violates that clause of the constitution of Mississippi, which says, That no person shall for any indictable offence, be proceeded against criminally by information, except, &c. Bill of Rights, sec. 12.
    In Pennsylvania and Indiana it has however been decided, that although in form a criminal, it is in substance a civil proceeding, and that it can be supported, notwithstanding a similar clause in the constitutions of these states. 1 Black. R. 278.
    The cases first cited, seem opposed to these, and it is for the court to reconcile and decide which they will follow.
    2. The second ground of objection i?, that the ordering of the injunction, until the trial of the quo warranto, is a violation of the obligation of the contract. In other words, that the state stipulated by the charter, that the Bank should enjoy all the privileges and immunities granted, and exercise them until the expiration of the charter, or until forfeiture and judgment thereon. Consequently, any law which prohibits this enjoyment and use of the charter, until the stipulated period, necessarily impairs the obligation of the contract.
    This point, however, has been decided by the supreme court of Massachusetts, adverse to my position. 21 Pick. R. 542.
    With the decision of so respectable a court directly on this point, it does not become me to say that it is wrong, but my judgment has not been convinced that it is right, especially as it seems opposed in principle to the case of Bronzer v. Kenny, 1 How. S. C. (U. S.) R.
    The court put it on the ground, that it is merely a new remedy ; that it is a condition annexed to the grant, that it shall not abuse or misuse its franchises. When it does this, it is a breach of the contract made with the state, for which a quo xoavranlo lies at law, and that a remedy to enjoin proceedings after an act of forfeiture, might be given to the courts of equity. This reasoning is just, if it were not stipulated as a part of the contract, that notwithstanding an act of forfeiture, or breach of any of the conditions, the corporation might still exercise and enjoy the privileges granted, until judgment at the suit of the state. It is true this is not written in express language in the charter, yet if it was the existing law at the time the charter was granted, it was incorporated into it, and became a part of it, to all intents, the same as if put there in express words. 1 How. R. 311, 315, 317, 31S, 319, 321; 2 Robinson R. 532.
    No law, therefore, though it be an additional remedy, can be enacted that impairs, or adds conditions or restrictions not found in the contract, or allowed by the law at the time it was granted. 2 Rob. R. 315, 316, 317. What then was the law at the time this contract was made 1 It was that the act, upon which a subsequent judgment of forfeiture was based, did not dissolve the corporation; it continued to exist; could contract, &c. until the state obtained judgment and execution for this act, and when this judgment was obtained, it did not relate to the act of forfeiture, for if it had done so, all mesne acts would have been avoided. Ang. & Ames. 665, and cases cited; 9 Wend. R. 351.
    By the law in existence at the time of the contract it could sell or dispose of its property as it pleased, after act of forfeiture, but before judgment of ouster, it could also collect its debts, or do any other act authorized by its charter. Whether it be viewed as a corporation de jure or defacto, it had by law the power to contract and enforce its contracts, and a court of equity had no power of right, even pending a quo warranto, to enjoin it. 2 Johns. Ch. R. 376; 1 Hop. R. 546.
    The difference between an individual entering for a breach and the state in regard to a corporation, is, in the first case the condition goes with the estate, and an entry avoids all mesne acts or sales, but a judgment on quo warranto does not avoid all mesne acts.
    3. But, admitting the case in 21 Pickering to be law, still it violates the contract in this: The legislature may have power to give jurisdiction to the chancery court to restrain the defendants, when they have violated the contract or charter. But the legislature cannot by law declare, that they shall be enjoined from collecting their judgments or debts, either altogether or for any given period of time. Either would violate tlje contract. 3 Story Com. If the legislature could not do this directly, they cannot direct a clerk to do it.
    
      What is the law or edict in this case 1 It directs the clerk, when filing the quo warranto by the district attorney, or upon affidavit made by A or B, that he believes the charter forfeited, to issue a writ of injunction to stay the collection until final trial. Here the fact of violation of the charter is assumed by the legislature to exist, upon the filing of the quo warranto or affidavit of belief, and they, the legislature, order the injunction upon this state of facts. The ground is, that the contract is broken; but whether it is broken or not, is a question for the judiciary.
    Now, admitting that the legislature could direct a remedy for breach of charter by injunction, it is obvious the jurisdiction must be given to and be exercised by the courts.
    4. In connection with this it may be also observed, that, though the legislature may prescribe new remedies for existing rights, yet if the remedy is made or directed to operate in such manner as to destroy or impair the rights given to the bank, or, by means of the remedy, the contract is in fact violated in spirit, it is equally obnoxious to the objection. 1 How. S. O. (U. S.) Rep. 316, 317; 21 Pick. 351.
    In this case, the remedy conflicts with the right of collecting its debts; it enjoins it from doing so without any judicial order, without examination whether it has violated its charter; and it violates it in keeping up the injunction, although the bank may clearly show it has not violated its charter.
    It violates it also in this, that it directs the clerk to issue the injunction, upon the belief or opinion of A or B, without stating facts showing its violation.
    It violates it in this, that, upon such affidavit, the clerk and solicitor are compelled to proceed; and the case may be dismissed from time to time by the solicitor, and be renewed again and again, without any possibility for the bank to redress the injury.
    5. But the ^th section of the act of 1843 is in direct and positive conflict with the constitution of Mississippi.
    Article 2, section 2, and article 4 of the constitution prohibits judicial action by the legislature, and confines it to the judiciary. All judicial power is vested in the judges and courts created by the constitution, or the authority of law.
    The section under consideration, authorizing an injunction to issue, can only be maintained as not violating the contract between the state and the corporators, upon the ground that the corporation violated its contract. This is the ground upon which it is sustained in the case in 21 Pickering.
    ' By the charter or contract, then, it had power to enjoy the benefit of its franchises, during the time limited, except it, the corporation, broke the contract. In such case who is to judge whether it has violated its contract, so that it shall not have the benefit of it? All will answer, the judicial tribunals of the country. Where parties break their .contracts or forfeit rights under them, who are to enforce them? The judiciary.
    Now admitting that the charter is a contract, and that for a breach there was no remedy in equity by injunction for the state, and admitting the legislature could give the additional remedy; to whom must it be given ? To the courts or judges, of course.
    Concede, then, that the remedy by injunction, or prohibition, or any other remedial writ, restraining them from the benefit of the contract, may be authorized by the legislature, in case of contract or condition broken; before that injunction can issue, it must be shown to the judicial mind’ that the contract is broken.
    I lay it down as a fundamental ride, that a party is entitled to the benefit of its contract; and by law can be restrained by no one in carrying it out, except it is judicially determined he has broken it.
    The writ of injunction, and other prohibitory writs are the remedies afforded; but the ordering of these writs, upon a proper state of facts, is a judicial act; it is the act of the court or of a judicial officer. Eden on Inj. 1. •
    Injunctions, supersedeas, are all remedial writs, but they can only be ordered by the judiciary. 2 Bouv., fit. Supersedeas; 1 Ibid. tit. Injunction.
    The writ is remedial; the order directing it to issue is judicial. , Preventive remedies are always ordered by courts.
    
      No_ man can be restrained from the benefit of a contract made with another at the instance of the latter, unless the latter makes out a prima facie case, showing the necessity of judicial interposition.
    Test this by individual cases. Suppose the legislature direct in all cases when a bill is filed, alleging a breach of contract, the clerk shall issue an injunction. Here the clerk, not the jucige, is to judge of its propriety.
    But suppose it is to issue, without any discretion on the part of the clerk, then the party is his own judge. He alleges the contract to be broken; and on this allegation the legislature order it to issue. The case in 21 Pickering is decisive on this point. There the judge granted it; he was to judge and to allow it^ the report of commissioner, and the facts were made prima facie evidence; the violation the same as an affidavit in ordinary cases. It was to continue until a hearing to dissolve, &c.
    But under this law a perpetual injunction may be kept up by a succession of quo warrantos and dismissals;, for if there is any likelihood of the bank prevailing, they will dismiss and bring another, and so on.
    6. But again the law at the time the charter was granted, was, that injunction for a breach of contract and for other causes, could only be issued by order of some judicial officer, authorized by law, upon a bill setting forth the facts which constituted the breach; so that the court or judge might decide whether the facts amounted to a breach. The opinion of A, B, or C, or the suggestion of any officer that it had done so, was not sufficient. But this law, without judicial action, assumes there was a breach, and directs an injunction to issue by the clerk, without any previous order, and directs it to be kept up until trial.
    Does not the legislature, not the judiciary, order the injunction? Does it not say to the clerk, stop this or that corporation from proceeding under or enjoying the benefits of the contract or charter, when A or B commences proceedings against it ?
    Can it be seriously argued that the legislature can pass a law, directing arbitrarily an injunction to issue against all the banks, or any one bank, because, in the opinion of the legislature, they have violated their charter 1 Yet here they order it to issue, not upon facts, but upon the opinion of A, B, or C.
    I deny that the legislature could direct the judges to issue an injunction upon an affidavit made by B or C, that, in his opinion, the bank had forfeited its charter. The judge would have to judge for himself. The facts must be stated.
    In the case in 21. Pickering, the judge was to act; his mind was to be satisfied. The report of the bank commissioners, sworn to and stating the facts, were prima facie evidence, on which the judge acted. But if that report had set forth facts, which, in the opinion of the commissioners, constituted a breach, but which in the opinion of the judge did not, wouldffie have granted it 1
    
    7. Even a new remedy, which encumbers the contract with conditions and restrictions, that make the contract hardly worth pursuing, are void. 1 How. S. C. Rep. 306, 317.
    Here the right, the life-blood of a bank — the collection of its dues — is enjoined, until a decision on quo warranto, for years perhaps, and again and again may be resorted to, until the bank is destroyed.
    Admit the decision in 21 Pickering to be right, that an act of forfeiture is a breach of the contract; that for such breach the remedy was at law, and that the legislature could give an additional remedy by injunction, to restrain the corporation from acting after it broke its contract, —by the constitution the judiciary is entrusted with the power of deciding, in the first instance, whether the contract is broken, so as to authorize the injunction.
    But in this case the legislature, by its edict, (for it is not a law) direct the clerk to issue an injunction, without any cause of forfeiture or specification, but because an action is brought to try, at some period of time or other, the fact, whether it has forfeited its charter. It gives no opportunity to dissolve the injunction, but imperatively requires it to be kept up until the case is tried.
    
      If the law had authorized a bill in equity to be filed, and directed the court, or authorized the court to grant an injunction if the bill showed a forfeiture, it would be a different case. The bank could answer, and show there was no forfeiture.
    But further, to test the validity of the law, suppose the legislature were to direct the clerks of the courts, in individual cases where judgments were obtained, to issue an injunction to the judgment; upon application of the defendant, stating or swearing he had equitable grounds for the injunction, and should furthermore direct the injunction to stand until a final hearing, — would such law be constitutional 7 Would not the law or edict be the usurpation of judicial power ?
    By what power or authority, is writs of injunction, prohibition, sequestration, attachment, authorized to issue, where one party enjoins another from enjoying a contract ? By the order and direction of th ejudiciary, upon a proper case made. By what power are they modified, vacated or discharged? By the same judiciary?
    The case in 21 Pickering I think is a direct authority on this point for us.
    There is a great difference between attachments and other mesne process, which is to compel an appearance, and injunctions, prohibitions, or other process, which issue to prevent a man from enjoying the benefit of a contract, upon the ground that he has broken the contract. In order to prevent him from having the benefit of his contract, and enjoining him, upon the ground that he has broken it, the judiciary must judge whether it is broken or not. Upon a case made, they order the process. But here the legislature do not authorize them, but order it themselves, — that is, direct the clerk to issue it. Tide on this point, 2 Murphy, 390, Perry’s case; 10 Yerg. R.; 3 Hawks R. 1.
    In the case of attachments, &c. on mesne process, it is the remedy afforded to enforce an existing contract. But here, the injunction or prohibition is to prevent the enjoyment of a contract, on the ground that it has been broken. This naust be judged of by the j udiciary.
    8. The law alters the rules of evidence. It not only is issued by the clerk, but upon an affidavit or suggestion, the law requires the specific clause to be set out. Is not this an ex post facto law? I Black. R. 193; 1 Kent, 408. The law is partial; it does not apply to all banks. Some are excepted.
    The law violates the constitution, which gives exclusive jurisdiction to the chancery court. The granting of injunctions for breach of contract is exclusively the province of a court of equity.
    Mr. Freeman says, No contract is proved — conditions not performed. The pleadings admit the acceptance of the charter. The act incorporated the subscribers without condition, (see 4th section) and the legislature in 1838 recognized and admitted the fact. Acts of 1838, p. 188.
   Mr. Justice Thacher

delivered the following opinion, in the ease of the Commercial Bank of Rodney against the State.

This was a proceeding against the Commercial Bank of Rodney, under the statute of 1843, entitled “ An act to prescribe the mode of proceeding against incorporated banks, for a violation of their corporate franchises, and against persons pretending to exercise corporate privileges, under acts of incorporation, and for other purposes.”

This act provides, that it shall be the duty of each district attorney in the state, whenever he shall have reason to believe, or whenever the affidavit of a credible person shall be presented to him, stating that he has reason to believe, that any incorporated bank has been guilty of a violation of any of the provisions of its charter, or has done, or omitted to do any acts, which would work a forfeiture of its charter, or that any corporation, person, or persons are exercising, without legal warrant and authority, the franchise of being a banking corporation, forthwith to file in the clerk’s office of the circuit court of the county in which such bank shall be located, or in which such franchise shall be so exercised, an information in the nature of a quo warranto, against such bank, corporation, or persons, and that the clerk shall thereupon issue the proper process, returnable to the next succeeding term of the circuit court. It provides that such informations shall be docketed upon the common law issue docket, and triable, if possible, at the first term of the court, after they shall have been filed. The 6th section of the act provides, that upon information being filed, in pursuance of the provisions of the act, it shall be the duty of the clerk, as a matter of right on the part of the state, to issue an injunction or injunctions, to restrain all persons from the collection of any demands claimed by said banks, corporations, persons, or assignees of corporations, or officers and agents of corporations, or other persons, until the information be finally tried and determined, which injunctions shall have the office and effect of an injunction in chancery. The act provides that, upon judgment of forfeiture, the debtors of such banks, corporations, and persons, shall not be released by such judgment from their debts and liabilities, but that trustees shall be appointed to collect the same, and to sell the property owned by such banks, corporations, and persons, and apply the proceeds to the payment of the debts of such banks, corporations, or persons. The act excepts from its provisions the funds belonging to the state, and excepts the Commercial and Railroad bank of Vicksburg, and the West Feliciana Railroad and Banking Company, so far as the railroads and their operations are concerned.

The constitutionality of this law is denied.

There can be no doubt, and it has so frequently been held, that it is a legitimate exercise of legislative power, in cases of the violation of a charter, or the assumption of corporate franchises, to provide a proper and effectual mode of ascertaining those facts, by judicial investigation, and also to provide the means of securing the personal assets of such forfeited and unauthorized corporations, for the benefit of those interested in such assets. Such an exercise of power is suitable and proper, to vindicate and recover the rights and sovereignty of the state, and to protect innocent persons, who have been induced to contract with such institutions.

The bank, in this case, contends that the writ of injunction issued against it, under the 6th section of the act above quoted, should be quashed, and the injunction dissolved, alleging that the law under which it issued is unconstitutional, as impairing the obligation of the contract of charter between the state and the bank, and also the obligation of contracts existing between the bank and its debtors.

Without disputing, for the present, that a bank charter is a contract within the meaning of the constitution of the United States, it is not seen how the injunction, in this case, violates or impairs any obligation of the state, accruing to the bank from its charter. All charters are granted for some specific object, and when they fail to accomplish that object, or refuse to comply with the terms of the grant in any essential particular, the grant is forfeited, and the grantees are liable to be deprived of their corporate franchises, on proof of the cause of forfeiture. Upon a dissolution of a corporation, the personal property vests in the state, and it follows, as an unavoidable consequence, that the legislature, in such event, may direct the disposition of such personal assets.

The injunction authorized by the statute, upon the filing of an information in the nature of a quo warranto, by a district attorney, enjoins the bank, &c., from the collection of any demands claimed by the bank, until the information be finally tried and determined. The right of the state to an injunction is sustainable upon two grounds; namely, 1st. Corporate franchises can emanate alone from the state, and the right to restrain by law their usurpations follows, as a necessary power, to protect the state ; and, 2d. The state has a contingent interest in the personal property of the corporation, which becomes absolute on the dissolution of the corporation. An information filed under this statute, like the common law information, is prima facie evidence that the bank has forfeited its charter ; and if upon service of process, as required by the statute, the bank does not appear and plead, there may be judgment, as at common law, of seizure of the franchises claimed in the information to have been usurped. The bank cannot plead non assumpsit, but it must either disclaim or justify ; because the object of the proceeding is, to compel the bank to set forth by what warrant or authority it holds the franchises asserted to be usurped or forfeited. Ang. & Ames on Cor. 492, et seq. The onus probandi is entirely on the bank. The People v. Utica Insurance Company, 15 Johns. 362-388. Bank of Auburn v. Aiken, et al., 18 Johns. 137. The People v. Kingston and Middletown Turnp. R. Company, 23 Wend. 193. The State v. Ashley, 1 Ark. R. 513. The State v. Harris, 3 Ark. R. 570. The information being evidence of the usurpation or forfeiture charged in it, until fully disproved, it is a legal consequence, that the information is evidence, until disproved, of the right of the state to the personal property of the bank, although the possession remains with the bank until dissolution. The state may, therefore, preserve such property from waste, and the writ of injunction is the usual remedy in such cases. The right to this peculiar remedy, on the part of the state, arises from the relations of property subsisting between the state and the corporation, and, therefore, forms a part of the contract of charter. It is a well settled rule, that corporations take property subject to all the incidents which the general laws of the land attach to it. The injunction neither violates nor impairs the obligation of the charter contract, on the part of the state ; because the property enjoined by it is presumed, on the face of the information, to be held by the bank in fraud of the rights of the state. The right of a state, by statutory enactment, to cause to be enjoined banking companies from the use of their franchises, upon bill or information filed, and before a dissolution, has been repeatedly sustained, by adjudications in the states of New York and Massachusetts. 3 N. Y. Rev. Stat. 581-583. Mass. Stat. 1838, c. 14. Bank Commissioners v. Bank of Buffalo, 6 Paige’s Ch. R. 497. 2 Kent, 313. Commonwealth v. The President of Farmers and Mechanics Bank, 21 Pick. 542.

Again ; it has been urged that the injunction deprives the bank of the right to sue, and thereby abridges the duration of that franchise. The right of the bank to sue, is derived from its charter. As has already been said, the information makes a prima facie case of forfeiture ; a forfeiture annuls all the rights of the bank, including the right to sue ; the injunction, therefore, restrains only the wrongful use of that franchise. By enjoining the bank from collecting its assets, it is thereby , most effectually deprived of the power to waste them. Besides, injunctions have never been construed to take away any absolute rights, or to impair the obligation of any contracts on which they operate.

It is further objected to the 6th section of the statute, that it confers equity jurisdiction upon the circuit courts, and is, therefore, repugnant to the 16th section of the 4th article of the constitution of this state, which gives to the court of chancery “ full jurisdiction in all matters of equity,” and permits the circuit courts equity jurisdiction only in cases when the amount in controversy does not exceed five hundred dollars, &c. The jurisdiction of a court of chancery does not extend to cases of forfeiture by corporations; the remedy, in such cases, is purely legal. At common law, on a judgment of forfeiture, the debts due to and from a corporation, were extinguished. This worked a great hardship on the creditors of the corporation, and the legislature have, therefore, wisely altered the common law remedy, by providing that the assets of banking corporations, on dissolution, shall be preserved, and applied to the payment of their debts. It was also foreseen by the legislature that banks might protract, by litigation, the suits against them, and before judgment entirely dispose of and squander their assets. To avoid this evil, an additional remedy was necessary. The legislature, accordingly, made a writ of injunction, returnable into the circuit court, as a part of the process in the case, to issue of course, and as a matter of right, on the filing of an information, which writ has the office and effect of an injunction in chancery. Although it has the effect of the equity writ of injunction, it is not an equity writ; because injunctions in equity never issue of course, or as a matter of right, but may be granted or refused, at the discretion of the court. It is a new remedial writ at law; one that has never been exercised by a court of chancery; it was not in existence when the constitution of this state was adopted, and cannot, consequently, be claimed as a power pertaining to the court of chancery thereby established. In the case above quoted, from 21 Pick. R., on p. 552, the court say, that “ it seems to be a well settled rule, that when the legislature have the power to provide redress for either a public or private wrong, the remedy, or mode of redress, is wholly a subject of legislative discretion. If an injunction is better adapted to accomplish the objects proposed, than any other form of judicial process, there seems no reason why the legislature should not have power to direct it. It has already been provided for in the case of waste, where it may issue at once; so to prevent a nuisance, when the mischief to be done would be irreparable.” The right to an additional and enlarged remedy having been shown to exist in good conscience, and no such remedy existing either at law or in equity, the legislature had hence the power to appoint one sufficient for that object. It must be seen, then, that the legislature has neither abridged the jurisdiction of the chancery court, as established by the constitution, nor has it conferred equity jurisdiction on the circuit courts. Even admitting that the injunction here authorized is an equity writ, the granting of the writ does not confer jurisdiction of equity matters. There is a wide difference between the jurisdiction of a court and the process by which that jurisdiction is enforced. The term, full jurisdiction in all matters of equity,” as used in the constitution, refers to the subject-matter in litigation, not to the process of enforcing the jurisdiction of the court. The jurisdiction of the court of equity is established by the constitution, but the mode of enforcing it is left to the-legislature. The jurisdiction of a judicial tribunal is the right to administer justice, through the laws and by the means which the. legislature may provide for that purpose. It is based on person, place, and subject-matter, and the various actions, and writs and other process, provided by law, are but the instruments made use of in the application of the law peculiar to the different tribunals established by the constitution.

It is further contended that the legislature have exercised judicial power in prescribing that an injunction shall issue as a matter of right, upon information being filed in pursuance of the provisions of the statute, and that therefore the act is unconstitutional and void.

Judicial power can be exercised only where there are rights in litigation between particular parties, who are to be affected by the exercise of that power and between whom issues of law or of fact are presented for decision. The exercise of judicial power is to direct something to be done, suffered or omitted by a particular party. The statute does not prescribe that an injunction shall issue in any particular case, or against any particular bank or person. It decides no question of law or fact, it pronounces no judgment, sentence, order or decree; it directs nothing to be done, suffered or omitted by any party to a suit. It simply prescribes under what circumstances, and upon what state of facts, the district attorney shall file an information in the nature of a quo warranto, and that thereupon the clerk shall issue a writ of injunction which shall remain in force until the information shall be finally tried and determined. Actions at law and the process issued upon them are remedies for the vindication and recovery of rights, and the prevention of wrongs. An information in the nature of a quo warranto is an action at law for the vindication and recovery of a right, and the injunction issued in consequence of the filing of such information is a species of mesne process for the prevention of wrong, until the right is finally determined. It is therefore very clear that the legislature have not performed a judicial act or exercised judicial power, but have merely prescribed a general remedy in a particular class of cases, which is a legitimate use of legislative power. The case in 21 Pick. R. 550, referred to above, fully sustains the foregoing views, and is an express adjudication upon this point.

The position that the issuance of the injunction by the clerk is a judicial act, is equally untenable. He performs no act of a judicial character. He is directed by the statute to issue the writ of injunction upon the filing of an information. The statute is mandatory and positive. The only thing to be judged of by him is the single fact that an information has been filed, and this having been found by him to have been done, as a minister of the law, he issues the writ. Its force and effect is prescribed by the statute, and it derives none of its power or validity from any act performed or discretion exercised by the clerk who issues it. In the case of Rice et al. v. Parkman, 16 Mass. 326, it was decided, “ that a mere ministerial act, though requiring discretion, and sometimes a knowledge of law for its due exercise, may still partake in no degree of the characteristics of judicial power.”

It is a Iso objected that the injunction restrains the assignees of the bank from collecting claims due them as such assignees, and who are also not parties to the information. The record shows that the assignees are in possession of all the assets of the bank. If the information is sustained, the property of the bank goes into the hands of trustees. It is contended, however, that the bank has parted with its title to that property, and that the same is vested in the assignees for the benefit of creditors. In all such assignments, the grantor has a contingent interest that if any surplus should remain, after a satisfaction of the debts due to the creditors, it reverts to the grantor. Without admitting the validity of the assignment, such contingent interest of the bank in the property in the hands of the assignees forms a sufficient ground to serve the injunction against the assignees. The circumstance that they are not parties to the information is no obstacle. Persons, other than parties to a suit may be restrained by injunction from committing waste of the property in litigation. Drewry on Injunct. 370. The validity of the assignment need not necessarily be investigated here. The question as to that will arise, if not sooner, when the property of the bank is ordered into the custody of the trustees to be appointed in the event of a judgment against the bank. The legislature have directed that the injunction shall issue against the assignees of the bank, and it has been so issued. There is no pretence that the act in this particular is in violation of any clause of the constitution, and it is therefore the law of the land,.and must be enforced.

The last point which calls for notice, is, that the information in the nature of a quo warranto, is claimed to be a criminal proceeding, and that it consequently falls within the prohibition of the constitution of this state, (Bill of Rights, § 12,) which guaranties “ that no person shall, for any indictable offence, be proceeded against criminally by information.” Whatever doubts might formerly have been indulged respecting the nature of this proceeding, especially when a fine constituted a part of the final judgment against a corporation, under our statute it is used for the sole purposes of determining a civil right, and ousting a wrongful possessor of a franchise, and is therefore exclusively a civil proceeding. This conclusion has been expressly decided in Pennsylvania, the constitution of which state contains a clause, in reference to criminal proceedings, verbatim with the one quoted just above from our own. Respublica v. Wray, 3 Dallas, 490; The Commonwealth v. Brown, 1 Serg. & Rawle, 385.

The foregoing review of this case brings me to the conclusion that the statute in question is in all respects constitutional and valid, and that the whole proceedings, as given by the statute, in its inception, progress and termination, is properly and solely cognizable in the courts of law. I am therefore of the opinion that the judgment of the court below, in refusing to dissolve the injunction in this case, should be affirmed, and the cause remanded for further proceedings.

Mr. Justice Clayton

delivered the following opinion In the case of the Commercial Bank of Manchester against the State.

This is an information in the nature of a quo warranto against the bank, requiring it to show by what authority it assumes to exercise corporate franchises. It is instituted under the act of 1843. Under the 6th section of that act an injunction was issued by the clerk of the circuit court, at the time the information was filed, restraining the bank from proceeding to collect any of the debts due to it. A motion was made in the circuit court to quash this injunction, which was overruled, and the cause thence comes to this court.

The language of that clause in the act under which this proceeding took place, is, in substance, as follows: That upon information being filed in pursuance of the provisions of this act, it shall be the duty of the clerk, as a matter of right on the part of the state, to issue an injunction or injunctions to restrain all persons from the collection of any demands claimed by said bank or banks, person or persons, or assignees or corporations, and all their officers and agents, or other person or persons, until the said information be finally tried and determined, and said injunction shall have the office and effect of an injunction in chancery, and shall be served, in like manner as injunctions in chancery are served.”

It is insisted, in an argument of unusual ability, that this clause stands opposed both to the constitution of the United States and of this state. To decide upon a question of this character, involves the exercise of the highest duty which pertains to the judiciary, and it ought only to be resorted to, when that duty is plain and manifest. Much is due to the coordinate departments of the government, whose concurrence is necessary to the enactment of any law. Yet they sometimes act, perhaps, without full consideration, and without that sifting and searching scrutiny, which is applied in forensic investigation, conducted on both sides by minds sharpened by habit, stimulated by interest and emulation, and which is best calculated to detect any opposition of the law to the constitution. If such conflict exist, the constitution of this state declares that the law shall yield, and shall be declared void.

The great importance of the principles involved, and the vast amount of pecuniary interest at stake, have induced us to tax our minds to the utmost to discover the truth. Duty prompts us, when discovered, to follow, whithersoever it may lead.

It may now be regarded as settled in the courts of the country, that a bank charter is a contract between the state and the corporators, and unless a power to repeal or alter it, be reserved by the legislature, it cannot afterwards be repealed or altered without their consent. Crease v. Babcock, 23 Pick. 240; Planters Bank v. Bank of Alexandria, 10 Gill & Johns. 1. In plainer language, the legislature can do no act inconsistent with the fair meaning of the contract it has made. In England one of the great contests, which gave a shock to the power of the Stuarts, from which they never recovered, was the arbitrary attempt to take away the charter of the city of London. The friends of liberty, the revolutionary party, were arrayed in resisting the attempt, whilst the satellites of arbitrary power were ranged on the other side. After the revolution of 1688, the judgment by which it was accomplished was declared void, and its charter made perpetual by act of parliament. 2 Bac. Ab. 285.

The principle of the inviolability of contracts was thought by the framers of the constitution to be of sufficient importance to be secured by an express provision. Whilst we accord its full weight to this clause, we must give effect to another principle, which is equally established in England and in our own country; which is, that charters are always granted upon a condition, either express or implied. 3 Cruise Dig. 306. There are always implied conditions in every charter, if not express, that the corporation shall perform certain trusts, and discharge certain duties, and upon breach of these conditions, the government may resume the franchise. Tn Terret w. Taylor, 9 Cr. the rule is thus stated ; “a private corporation, created by the legislature, may lose its franchises by a misuser or nonuser of them; and they may be resumed by the government, under a judicial judgment upon a quo warranto to ascertain and enforce the forfeiture. This is the common law of the land, and is a tacit condition annexed to the creation of every such corporation.” See also 7 Peters, 286. This principle has been recognized and enforced in many of the states of our Union, and its justice and propriety settled beyond doubt. Massachusetts, New , York, New Jersey, Maryland, Virginia, South Carolina, Ohio, Indiana and Arkansas, have all acted upon it. Commonwealth v. Farmers and Mechanics Bank, 21 Pick. 542; People v. Niagara Bank, 6 Cow. 196; 23 Wend. 236; Commonwealth v. James River Company, 2 Va. Cas. 190; Planters Bank v. Bank Alexandria, 10 Gill & Johns.; 4 Ib. 1; State v. Bank of South Carolina, 1 Spears. 432; 11 Stanton’s Ohio R. 1; State v. Bank Vincennes, 1 Black. 267; 3 Ark. 570. Alabama is the only state whose court has decided differently, so far as we have been able to ascertain. 2 Stew. Ala. R. 60, We shall follow the great current of authorities, rather than this single decision. The right to take advantage of this breach of condition, belongs to the government alone, and that may waive the right at its discretion. This is in fact frequently done by express enactment, as in the instance of the Bank of England, when it suspended specie payments for twenty years, and has been often done in reference to banks in this country ; but still more frequently by tacit indulgence. Yet if the state claims to enforce its right, and to exact the forfeiture, the courts of the country have only to award the judicial consequence. There is nothing in the laws or the constitution to prevent it.

This point did not seem to be much controverted by the counsel of the bank. The great question with them is — not whether the charter may be taken away on the ground of forfeiture, but whether, during the pendency of proceedings for that purpose, the bank can by statute be constitutionally restrained from the exercise of its corporate franchises. In other words, whether the legislature has the right to declare it shall not go on with its usual powers, until the judgment of forfeiture is pronounced. The objections urged in this point of view are, that the act impairs the obligation of the contract, by which the bank is invested with plain and express power to sue, in this, that the right to sue is taken away before a judgment of forfeiture is pronounced. Next, that it violates the state constitution, because the injunction is directed to be issued by the clerk of the circuit court without judicial fiat, and is made to continue until the information is finally disposed of.

This question, in some of its aspects, is not new in our sister states. New York, New Jersey, Ohio, Massachusetts, and Maryland, have passed statutes on the same subject, to prevent fraudulent insolvencies on the part of banks, containing many of the same general features with ours. Their constitutionality has been recognized by their respective courts. Bank of Columbia v. Attorney General, 3 Wend. 588. Oakley v. Patterson Bank, 1 Green, 174. Commonwealth v. Farmers and Me chanics Bank, 21 Pick. 544. Bank of Maryland v. Ruff, 7 Gill & Johns. 465. In this last case it is said by the court, that the law had been pronounced valid by the supreme court of the United States. Gilmore v. Bank of Cincinnati, 8 Ohio, 130.

A distinction, however, is drawn between the statutes of these several states and the one under consideration in this, that in those- states the injunction upon bill filed is awarded by a judge, in the exercise of chancery jurisdiction, to remain .until further order, or until final hearing of the injunction ; in this it is issued by the clerk, as matter of right; it is not returned into chancery, and is directed to be retained until the final determination of the quo warranto. The bank is restrained from bringing suits in any instance, until the decision of the information, except that it may issue attachments against absconding debtors. This distinction will be hereafter adverted to.

It is insisted that the writ thus issued impairs the obligation of the charter, as a contract, because by it the bank is invested with power to sue, in the usual terms. The power to sue for and collect its debts, is one which is highly necessary to a banking institution, indeed it is indispensable to the existence of a bank of discount. The question, then, is, whether this right can be restrained, before a judgment of forfeiture in any other way than by the interposition of a court of equity. The rule on this point, in courts of law, has been judicially expounded in several of the states. In New Hampshire it is thus laid down : “ Although a corporation may forfeit its charter, by abuse or neglect of its franchise, yet the forfeiture must be ascertained and declared, by regular process and judgment of law, before its powers can be taken away, or the corporation be considered as dissolved.” State v. Carr, 5 N. H. R. 371. See also 10 N. H. R. 375. In Maryland it is said, “ that the funds of the bank are in its own hands, and not in the hands of the law, .until the forfeiture is judicially ascertained.” State of Maryland v. Bank of Maryland, 6 Gill & Johns. 230. The same principle is' deducible from the case of Planters Bank v. Bank of Alexandria, in 10 Gill & Johns., in which it is laid down, that a bank does not cease to be liable to suit, until judgment of forfeiture is pronounced. The same is stated in 9 Gill & Johns. 426, and in 6 Cowen, 23. In Vanzant v. Waddell, 2 Yerg. 265, it is said: “Had the legislature said, that the bank should not have process for the collection of its debts, or that the court should not be open to its complaints, such law would not be valid.” These cases, however, only decide upon general common law principles, and do not, except the last, relate to a case in which a statute directly attaches .that consequence. Does this statute, in thus varying the common law doctrine, impair the obligation of a contract, and violate the constitution 1 It is certainly a question of much delicacy and nicety, and its difficulty is sensibly felt. In this case, the consideration is confined to that portion of time which elapses from suing out the information, until its final determination. It will be considered, first, in its reference to a court of law, and next in its reference to a court of chancery.

It was argued with much force, by the attorney general, that this law affects the remedy only, and that the whole class of remedies is under the control and direction of the legislature, to be varied, modified, and limited at their discretion. The language of some of the cases lends strong countenance to this doctrine. In 4 Wheat. 245, it is said, “ the forms of administering justice, and the duties and powers of courts, as incident to the exercise of a branch of sovereign power, must ever be subject to legislative will, and the power over them is inalienable, so as to bind subsequent legislatures.” Again, in 12 Wheat. 291, it is said, “ that it is far from being true, as a general proposition, that a government necessarily violates the obligation of a contract which it puts an end to, without performance. It is the motive, the policy, the object, that must characterize the legislative act, to affect it with the imputation of violating contracts.” The generality of these expressions, however, is much restrained and narrowed down by other cases. Mr. Justice Story thus deduces the rule from the authorities : “ Although there is a distinction between the obligation of a contract, and a remedy upon it, yet if there are certain remedies existing at the time when it is made, all of which are wholly extinguished by new laws, so that there remain no means of enforcing its obligation, and no redress, such an abolition of all remedies, operating in presentí, is also an impairing of the obligation of such contract. But every change and modification of the remedy does not involve such a consequence. No one will doubt that the legislature may vary the nature and extent of remedies, so always that some substantive remedy be in fact left.” 3 Story’s Com. Con. 251. In the latest decision of the supreme court of the United States on the subject, the rule is thus stated : “ The laws in existence, when a contract is made, are necessarily referred to in all contracts, and form a part of them, as the measure of obligation to perform them by one party, and the right acquired by the other. If any subsequent law affect to diminish the duty, or to impair the right, it necessarily bears on the obligation of the contract, in favor of one party, to the injury of the other. The law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance, by the remedies then in force. Hence any law which, in its operation, amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the constitution.” McCracken v. Hayward, 2 How. S. C. R. 612.

This decision of that court whose determination is final, on all constitutional questions of this character, is binding as authority upon us, because our decisions upon such subjects may be revised by that tribunal. The doctrine here seems to be pushed farther than it was carried by the earlier adjudications of that court, yet I do not feel at liberty on that account to withhold- my assent. If the provisions of the sixth section, which suspend the action of the banks during the pendency of the quo warranto, are intended to be applicable to courts of law, then I come to the conclusion, that the part under consideration does impair the obligation of the contract contained in the charter, that the bank may sue for the collection of its debts. The statute in restraint of assignments by the banks in this state, was sustained in reference to the Mississippi Rail Road Company and the Planters Bank, solely upon the ground, that the power to assign their bills receivable and evidences of debt, was not expressly given by the charter, nor was it necessary to enable them to carry out any of the powers granted.

Let us now return to the distinction before adverted to, in regard to courts of chancery. The jurisdiction of equity over corporate funds in England, was much questioned, and in some cases denied, except as to corporations holding to charitable uses. 1 Wooddes. Lec. 283. Mayor of Colchester v. Lowten, 1 V. & B. 225. Chancellor Kent lays down the rule, that corporations that hold to charitable uses, and that are chargeable with trusts, are accountable in equity for an abuse of trust. With that exception, they are amenable to the courts of law, and according to the course of the common law, for nonuser or misuser of their franchises. 2 Kent, 304. Angell and Ames, 511. The jurisdiction in this aspect extends no further, than the power of a court of chancery in all other cases of trust, to compel their performance, and to preserve and protect the fund. 3 Sto. Com. Con. 259. The question of forfeiture is to be tried at law, unless otherwise directed by statute; but where this power is conferred by statute on the court of chancery, there is nothing in the constitution of the United States to prohibit its exercise in that tribunal according to its own peculiar forms. This is the effect of the decisions in the various states of New York, New Jersey, Massachusetts, and Maryland, already cited. Of consequence they have right to resort to an injunction to preserve the fund, more especially when that right is given by statute. Apart from any statute the power may be, and frequently has been exercised. In Bank United States v. Osborn, 9 Wheat. 842, the court sayrs: “ The same conservative principle which induces the court of equity to interpose its authority for the protection of exclusive privileges will justify its interference to prevent the commission of waste, even in some cases of trespass, and in many cases of destruction. Its province is in such cases to arrest injury and to prevent wrong.” Ib. 845. The court under its head of ancillary jurisdiction, has the undoubted right to provide for the safety of properly pending litigation. 2 Rob. Prac. 2. The principle is thus stated in Gilmore v. Bank Cincinnati, 8 Ohio Rep. 62: “Before the corporation is proceeded against by scire facias or quo warranto, a bill in chancery may be entertained against it, to restrain it from the misapplication of its funds, and the commission of frauds, upon the ground that the capital stock is a trust fund.” Now this exercise of equitable power does not impair the contract at all, whether employed under a statute, or in a state of case authorizing the interposition of equity upon its general principles of jurisdiction. It does not impair the contract, because equity does not act upon or affect the contract, it does not restrain or impede the course of the law in its prohibited sense; it only acts upon the parties, and prevents what is alleged to be a fraudulent exercise of trust powers. 2 Sto. Eq. 166, sec. 875. It applies the same general rule to corporations, which is applied without question to individuals. It is the principle on which our statute professes to stand, and it is the same on which the New York and Massachusetts laws and decisions rest. 3 Wend. 588; 21 Pick. 542. If a court of equity is in possession of the uncontrolled exercise of this authority upon the general principles of its jurisdiction, it is difficult to conceive how an act of the legislature can be arraigned as unconstitutional for enacting in substance the same provisions.

True, such bills, independent of statutory enactment, are filed by a party in interest, and when the parties are numerous, one may file for himself and all others. But if, as in this instance, a statute gives the right to the state to interpose, not in exclusion, but in aid of the creditors, waives the right of confiscation of the assets, and devotes all to the payment of the corporate debts, I can see no constitutional obstacle to such course.

The question then arises, whether, by the terms of the act, this proceeding upon the writ of injunction is intended to be at law, or in equity. I shall proceed to consider it with the single remark, that if the construction be doubtful, it is our duty to place that interpretation upon it, which will enable it to stand, upon the trite maxim, ut res magis valeat quam pereat, that the act may live rather than perish.

The second section of the act makes it the duty of the clerk of the circuit court, upon the filing of the information, “ to issue the proper process, returnable to the next term of the circuit court.” The sixth section then provides, that “ it shall be the duty of the clerk, as matter of right on the part of the state, to issue an injunction, which shall have the office and effect of an injunction in chancery, and which shall be served, in like manner as injunctions in chancery are served.” The act does not' in terms direct, to what court this injunction shall be returned. The 51st section of the general circuit court law, directs “ that all process issuable out of, and returnable to the court of chancery in this state, may hereafter be issued by the clerks of the circuit courts respectively, and made returnable to the court of chancery.” H. & H. 493. Under this act it is the constant practice to issue writs of injunction by the clerks of the circuit court, returnable into chancery, and to act upon them as if issued by the chancery clerk. Taking these two acts together it is in my view, a fair conclusion, that the legislature intended that the injunction under the sixth section, should be returned into the chancery court, there to have the office and effect of an injunction in chancery, and to be strictly ancillary to the proceeding at law, in the preservation of the funds. With this fair and natural interpretation, the act does no^ come in conflict with the constitution of the United States. It may not be a forced construction either to hold, that the service includes the return, and hence that the words require the return to be made into the court of chancery.

It remains only to inquire if the act is repugnant to the constitution of this state. It is, in argument, said to be so, first because the injunction is directed to be issued as matter of right, without judicial fiat, that it is therefore an exercise of judicial power by the legislature, and next because it is directed to continue until the final hearing of the quo warranto.

It is certainly true that this statute violates the old and long established usage as to the mode of issuing an injunction. One of the articles of impeachment against Cardinal Wolsey, the Chancellor of Henry Till, was that he issued writs of injunction upon petition instead of bill. The orders of Lord Chancellors Bacon and Clarendon direct that no injunction shall issue but upon bill filed. This method has continued till our day. Yet there is hothing in all this, which makes a change at war with the constitution. The writ of habeas corpus is the only one, which is rendered sacred, and beyond legislative control by that instrument. An injunction is regarded as process, and no reason is perceived why the legislature may not alter the mode of its issuance. Writs of error and supersedeas could formerly only be issued upon fiat of the judge, now they issue as of right upon petition to the clerk, and bond and surety given. An attachment is usually issued upon the order of some judicial officer, yet if a capias or summons be returned not found, the plaintiff may at his election sue out an attachment, and have it levied on the estate of the defendant. All this might with equal propriety be said, to be thé exercise of judicial power, and involve an infraction of the constitution. This seems to us to fall peculiarly within the rule, before cited from 4th Wheaton, 245, “that the forms of administering justice must ever be subject to legislative will.” Such legislation may be partial, it may extend only to particular objects and classes, and may therefore be objectionable ; but it does not follow that it is unconstitutional. See Williamson v. Williamson, Opinion Book B., 627; 2 Yer. 266.

The last objection to the act will now be considered — the direction that the injunction shall continue until a final hearing of the quo warranto. I have already stated that the process should have been returned to the superior court of chancery, so far as relates to the injunction. When so returned it must be subject to determination, according to the same rules which govern other causes. By the constitution it must be tried “ by due course of law.” So far as the act under consideration comes in conflict with this provision, it is void, but no farther. This conflict between the law and the constitution, does not give the court the right to quash the injunction upon motion, but it leaves the court at liberty to proceed as in other cases, that is, to dissolve the injunction upon good cause shown. It is our duty to sustain the law so far as it is constitutional.

The constitution of this state not only provides for the establishment, of a separate superior court of chancery, but it virtually forbids conferring equity jurisdiction upon the courts of law, except in a few enumerated cases, of which this is not one. This injunction, therefore, should not have been returned into a circuit court, because such court had no jurisdiction over it. The object of the act was in fact to authorize two separate and distinct proceedings, the one in the nature of a quo warranto, to try the question of forfeiture of charter, a proceeding exclusively at law, (Ang. and Ames on Cor. 511,) the other to preserve the fund during the litigation, a proceeding exclusively within equity jurisdiction. This last proceeding was strictly auxiliary to the first, and could only be carried on in chancery. When there, the cause becomes subject to the jurisdiction of the court, to be tried and determined by the laws of the land. The attempted restriction upon the action of the court, staying trial until the hearing of the quo warranto, cannot be sustained. And this is the only part of the law in which any repugnancy to the constitution is perceived.

The case already cited from 21 Pickering, bears a strong resemblance to this. It establishes, on solid principles, the right to institute proceedings to inquire into a forfeiture of charter on the part of a bank, and to provide for the preservation of the property until the inquiry can be had, and to restrain the bank by injunction from proceeding with its business until the injunction can be tried. Our act goes a step farther in providing for the continuance of the injunction, until the quo warranto is heard ; and in this I think it transcends the constitutional limit. The case in Massachusetts was in equity, and is thus not within the influence of the doctrine laid down by the supreme court in McCracken v. Hayward. Confined to its actual circumstances, a proceeding in chancery, I regard it as free from objection.

It only remains to apply the principles herein laid down, to the case before us. The writ of injunction was improperly returned into the circuit court, as it was not within the range of its jurisdiction. Hence it had no power to quash it, aud its refusal to do so was not erroneous. It ought however to have disclaimed any jurisdiction over it, and to have directed its return into the court of chancery, where it is properly cognizable. My opinion is that the order in the case should be affirmed, and the cause remanded to the circuit court, with directions to order the injunction to be returned into chancery, and the writ of quo warranto to be retained for trial.

The decision thus far relates only to proceedings against the bank directly, not to the assignees of those which have made assignments. Some of both classes were submitted. At this stage of the causes, a mere motion to quash the injunction, because of the alleged unconstitutionality of the law, I do not perceive any difference in the principle which is to govern them. In their further progress through the chancery court, it is very possible, that a distinction may be found; but we need not an ticipate.

It may not be out of place to remark that if any embarrassment should be experienced in conducting the cause in chancery, by reason of the change in allowing the injunction without bill, the 15th section of the act of 1840, p. 19, may very probably be found to afford a remedy for the difficulty. That directs the governor, in certain circumstances, “ to instruct the attorney general to institute proceedings against banks acting in fraud for the purpose of anticipating or avoiding in any way the effects of a forfeiture of charter, to enjoin the same, according to the provisions of the laws in force and in use in other cases.” The whole series of laws on this subject should be construed together.

As my view in regard to the injunction, and its return into the chancery court, does not meet with the concurrence of either of the other members of the court, my opinion in that particular stands alone. I unite in the directions which are drawn up by a majority of the court, for the entry of the judgments in the several cases, and for the guidance of the circuit courts.

Mr. Chief Justice Sharkey

delivered the following opinion in the case of The Commercial Bank of Manchester against the State.

There are three other cases which have been argued and submitted with this, which raise the same questions, with a single variation in one of them. They have been discussed at length, and with an ability commensurate to the importance of the questions involved. The right to have the judgment reversed is asserted on the ground of the alleged unconstitutionality of the law under which the proceeding originated. The constitution is the supreme law of the land, and paralyzes whatever may encroach upon the principles of government which it asserts, either directly or remotely, and it becomes our duty, however delicate and unpleasant it may be, to announce the point of confliction, and that far to declare the law inoperative and void.

An information, in the nature of a quo warranto, has been filed against the corporation, under the act of the legislature, approved the 26th of July, 1843, which provides the mode of proceeding against incorporated banks for a violation of their corporate franchises, various acts of forfeiture being alleged in the pleadings, which it is not now necessary to notice. At the time of filing the information, the clerk of the circuit court, in whose office it was filed, issued an injunction against the bank, under the sixth section of the act, which declares that upon information being filed, it shall be the duty of the clerk, as a matter of right on the part of the state, to issue an injunction to restrain all persons from the collection of any demands claimed by said bank or banks, person or persons, or assignees or corporations, and all their officers and agents, or other person or persons, until the said information be finally tried and determined, and said injunction shall have the office and effect of an injunction in chancery.” At the return term a motion was made to quash the injunction so issued, which was overruled; and from that decision this appeal was prayed. The correctness of that decision alone is to be determined. With the merits of the information, or the validity of any portion of the act which does not directly bear upon the question, we have nothing to do. I lay out of view, therefore, that portion of the argument which attacked the general features of the act; because, if it be. even true that certain other provisions are unconstitutional, it would not follow, for that reason, that the whole act was void. It is proper, in the outset, to determine whether this proceeding be, in its character, civil or criminal, because it is said that, in two of the cases, this was the governing principle. It is a proceeding taken from the English practice, where it is comparatively of modern invention, introduced to avoid the more tedious process of a quo warranto, and to get rid of the conclusive character of the judgment in that proceeding; In its origin it was regarded as a criminal prosecution, as it was filed in the King’s Bench by the attorney general, as well to punish the usurper as to oust him from the franchise; but more recently it has been used for the purpose of trying the civil right only, and when so used, it is regarded asa civil proceeding, the judgment extending to ouster only. Chancellor Kent informs us, that, although in form it is a criminal proceeding, yet it is, in its nature, a civil remedy, (2 Kent’s Com. 313, 5th ed.) ; and so it seems to be regarded by other approved authorities. Such was no doubt intended to be its character by the framers of the act of 1843, which inflicts no penalty, but looks to an ouster alone.

I come, then, to the more important question, the validity of that section of the act under which the injunction was granted. The grounds assumed in argument, in opposition to the act, were, first, that it impairs the obligation of the contract, by invading the implied or incidental powers of the corporation, and is therefore in violation of the constitution of the United States. 2. That it is a privation of the enjoyment of franchises expressly granted, and for that reason unconstitutional; and, 3. That it violates the constitution of Mississippi, by conferring judicial power on the clerks of the circuit courts.

First. Does it interfere with the implied or incidental powers of the corporation? It is undoubtedly true that the implied powers of a corporation are as much beyond the control of the legislature, as are the powers expressly vested. Any law which materially alters or abridges either, so as to affect the right, impairs the grant; for both are alike granted. What are the implied powers of a corporation 1 They are those powers, and those only, which are necessary and proper to enable the corporation to fulfil the objects of its creation — those which are requisite to the perfect enjoyment of the powers expressly granted. Such powers are presumed to have been within the contemplation of the granting power; they result necessarily from the grant. It is contended, then, that the bank had a right to continue all its banking operations, úntil a judicial determination of forfeiture had been pronounced against it, and a dissolution declared, and that it was incident to it as a corporation, to enjoy its privileges up to that time. This position is untenable. It is not an incident to a corporation, that it shall exist as such up to the happening of a contingency. Such continuance is not requisite to its business capacity — not essential to the enjoyment of the powers granted. This is a question of duration, not of power. Power is an active, not a passive principle. Nothing but an express warrant will confer existence on a corporation for a given period. Its power may be as full and complete for a shorter time as for a longer one. At the time this charter was granted, the law undoubtedly was, that a judicial determination directly on the question of forfeiture must have preceded a dissolution of the corporation. This law, it is said, entered into the contract, and constituted as much a part of the charter as though it had been inserted. This position is not maintainable on principles applicable to grants of the description now under consideration. Besides, the doctrine that the law enters into the contract, and becomes a part of it, has not received unqualified judicial approbation. Judge Story, in reviewing the decisions on this subject, denies its correctness in unqualified terms, and shows its fallacy by reasoning and examples so striking, as to defy refutation. 3 Sto. Com. on the Const. 247, 248. I am aware that in the case of Bronson v. Kenzie, 1 How. S. C. Rep. 311, the supreme court of the United States has given countenance to a different doctrine. But let us test this question of continuance by the application of principles. I have said it was not incident to the corporation that it should continue the exercise of its powers up to its dissolution by judgment. This was a privilege permitted to it as the law then stood, but it was by virtue of a general law. Those things which are incident, like those which are expressly granted, constitute a part of the being or vitality of the corporation, and we must distinguish between the privileges conferred by grant, and those which may be exercised in virtue of the general law of the land. In respect to the latter, the corporation stands on no higher ground than natural persons, as to whom all laws may be changed, so that the change does not impair vested rights; but all privileges are not rights. The state never parts with her supremacy, unless by an explicit act, indicative of a clear intention. Let us suppose the state contracting with this corporation. She grants certain powers, to be exercised for a certain time, on condition implied by law that the corporation shall forfeit the grant or the power by a violation of the conditions. The law imposes on the corporation the duty of strict conformity, and declares that a forfeiture shall be the consequence of a violation. When the state is thus providing against an abuse of confidence, can it be construed as an inviolable feature in her contract, that the corporation shall continue in that abuse? The state has not bound herself to indulge a corporation in malpractices until a forfeiture is judicially declared. She may do so if she will, but the indulgence is permissive, not obligatory. The violation destroys the right, and converts it into a mere privilege. There is a principle at the root of this question which will serve to explain it. A grantor, upon condition, may waive the forfeiture for a breach of the condition. The presumption of law is in favor of a waiver. The state grants upon condition, and, like any other grantor, may waive the breach, and the law raises the same presumption. In the case of a common grantor an entry is necessary to rebut the presumption of waiver, and this entry may be made at any time after forfeiture. So it is with the state; some act equivalent to an entry, to rebut the presumption of waiver, is necessary. That act is usually a judgment, -which becomes the evidence that the state does not intend to waive. But as the common grantor is not bound to enter in any particular way, or at any particular time, so it is with the state; she may prescribe any other mode of evincing her determination. She has not bound herself by contract to pursue the remedy in any particular court, or by any particular course of proceeding; and, all other impediments out of the way, she may adopt her own course of proceeding, her own forum, and her own process; for I repeat, that, after the breach of condition, the corporation holds as a matter of favor.

Questions arising under that provision, in the constitution of the United States, which declares that no state shall pass any law impairing the obligation of contracts, have been much discussed in the supreme court of the United States, from an early period in the history of our government down to the present time. The principle admits of no dispute; but, in the nature of things, it is often difficult of application. Mr. Justice Story, in the 3d volume of his Commentaries, 250, gives us a summary of the principles settled by all the cases, from Fletcher v. Peck, 6 Cranch, down to Ogden v. Saunders, 12 Wheaton, from which it seems that any law which enlarges, abridges, or in any manner changes the intentions of the parties, resulting from the stipulations in the contract, necessarily impairs it. The manner or degree of the change áoes not influence the conclusion. Whether the law affects the validity, the duration, the construction, the discharge, or the evidence of the contract, it is the same thing. Any deviation from its terms, by postponing or accelerating the period of performance, which imposes conditions not expressed, or dispenses with those which are a part of it, however minute or immaterial, impairs its obligation. And although there is a distinction between the contract and the remedy, yet the remedies existing at the time the contract is made, which are all afterwards extinguished, so that no means of enforcing it remain, this impairs its obligation. But every change of remedy does not involve such a consequence. The legislature may vary the nature and extent of the remedy, so that some substantive remedy be left. The legislature may also prescribe the time and the modes in which remedies may be pursued. The change here spoken of must reach the intention of the parties, resulting from the stipulations in the contract. Something contracted about must be changed. The charter must be looked to, for the purpose of measuring the extent of the contract, and if privileges claimed are not there to be found, they do not exist. Providence Bank v. Billings & Pitman, 4 Peters, 562. There is nothing in this bank charter which confers on the corporation the right to enjoy its franchises until dissolved by judgment, nor does such a power result necessarily from that which is granted. Hence, I conclude, the obligation of the contract has not been impaired by an interference with its implied powers.

Second. Has any express grant of power been violated, by the 6th section of the act 1 It is said the bank, by its charter, has the power to sue, and that it is deprived of this right by injunction. The act only declares that the bank shall not collect, not that it shall not sue. But suppose it to extend to suits, does it even then follow that it is unconstitutional 1 If the legal remedies be taken from the corporation, or seriously impaired, so as to affect the rights acquired by contract, then the act is void. But the truth of this proposition depends upon the correctness of the assumption, that an injunction destroys a right, which is a position that cannot be maintained on legal principles. An injunction may suspend a remedy, but it does not affect the right. An injunction is usually interposed to prevent a party from doing that which, in good faith, ought not to be done. In this respect, equity corrects the imperfections of the law, by interposing its power for the prevention of injustice. This branch of jurisprudence constitutes a part of the whole system, and to which all parties, corporations, and individuals are subject, and to claim exemption from it is to reject one part of the system, and hold on to the balance. It constituted a part of the system when this corporation was created, and all such .grants are made with a view to the whole system. If the corporation has a right to urge its legal right to sue, notwithstanding the equities which exist, it is a right which might be urged in one case as well as another. The injunction presupposes, that she ought not to be permitted to collect her claims ; and if it be well founded, then, of course, no right is impaired, and whether well or ill founded is a question which does not arise on this branch of the inquiry. The question now is, whether the act of the legislature, directing that an injunction should issue, impairs the obligation of the contract ? The act does not declare any new cause of forfeiture, but merely prescribes the injunction for causes which would work a forfeiture under preexisting laws. The grant of power to sue only conferred the power to do so where there was no legal or equitable impediment interposing. An injunction is the appropriate process in the administration of preventive justice, and may be resorted to for many purposes. 1 Madd. Ch. 126. Pending litigation, property may be thus, protected, which is in danger of being destroyed, if the powers of the court in which the controversy is going on, are inadequate for that purpose, and, to a limited extent, this is its effect in this case, or at least seems to have been an ingredient in the legislative mind. It may be that the facts will not warrant the injunction, or that there are other obstacles insurmountable ; but as a mere question of power in the legislature to prescribe it as a remedy, assuming that the causes of forfeiture had occurred, it is not an impairing of the obligation of the contract, within the meaning of the constitution. It does not violate any right granted by the charter; it merely postpones the remedy, on the supposition that the corporation has lost its right to sue, or ought not to exert it-; but it is a legal suspension, if warranted by the facts, and if not so warranted, the corporation may have a speedy remedy ; and if such remedy be denied, then it may be obnoxious to other objections raised from a different source, but it does not impair the violation of the contract, merely because it suspends the power to sue. These remarks apply to the corporation only; no other rights are brought to view.

The power of the legislature to interpose the process of injunction, seems to be well settled by authority, as has been admitted in argument, but the correctness of the decisions is questioned. There is a statute in Massachusetts, very much like our own in all respects, except that the injunction seems to have been issued by a judge, and the remedy in chancery. The act authorized the bank commissioners to examine the banks, and if they should find them insolvent, or if they had violated their charters, on application by the commissioners to a judge of the supreme judicial court, he was authorized to issue an injunction restraining such corporation, in whole or in part, from further proceeding in its business, until a final hearing could be had. An injunction was obtained under this statute, and a motion made to dissolve it, on the ground of the unconstitutionality of the act. The supreme court of Massachusetts admitted the correctness of the doctrine, that the legislature cannot interfere with franchises granted, and after discussing the question at length, held that the injunction did not impair the obligation of the contract. That it was a mere legal suspension of the corporate power under the general law, which was as applicable to corporations as to individuals, and that the proceeding was valid. It was also objected in that case, as it is in this, that the bank had a right to exercise its power, until there was a judicial determination against it; but the objection was held to be without foundation. 21 Pick. 542.

There is also a similar statute in New York, which gives the chancellor the power to grant the injunction, and makes the case cognizable in chancery. The attorney general is authorized to petition the chancellor for an injunction against any bank which may be insolvent, or which has violated the provisions of its charter; or any creditor may petition, and upon sufficient proof, the court is authorized to grant the injunction, restraining such corporation from exercising its franchises, and from paying out, or collecting and receiving, any of its money, or transferring any of its property or securities, and the act also authorized the court to appoint a receiver. The constitutionality of this act was questioned before the supreme court of New York, in the case of the Bank of Columbia v. The Attor ney General, 3 Wend. 588, but by Sutherland, Justice, it was decided to be constitutional. Chancellor Kent has noticed the provisions of these statutes, without in the least pretending to question their constitutionality. 2 Kent’s Com. 314. He considers them in the light of insolvent or bankrupt laws, applicable to corporations, and although our act cannot, with propriety, be denominated a bankrupt or insolvent law, because it is silent on the subject of insolvency, yet I apprehend this makes no difference, in respect to the power of the legislature. The 6th section gives the injunction, and it seems to have no other definite object, than as being ancillary to a remedy, which the state has thought proper to prescribe for herself; and although it. may seem to be a harsh one, it is not, for that reason, void. Similar decisions have been made in Maryland and New Jersey.

The case of The People v. The Manhattan Company, 9 Wend. 351, was cited as sustaining a different doctrine. That opinion was also delivered by Judge Sutherland, and it is consequently the more manifest that the case turned upon a different ground. The charter of the corporation contained an express provision that it might employ its surplus capital in the purchase of stock, or in any other moneyed operations or transactions. This clause was held to confer express authority to the bank, and on that ground to exempt the corporation from the operation of the subsequent restraining acts against illegal banking. Nor do 1 conceive that any of the cases cited for the bank come up to the question, or tend to shake the authority of the direct adjudications above referred to.

But it was insisted with great zeal that this is not a remedy, and for that reason the act is void, because the power of the legislature can only be exerted in prescribing a remedy. Its connection with the proceeding on the information seems to be remote, it is true, nor is it easily perceived how its object can be of a remedial character with reference to judgment of ouster, which is the only object the state, in reference to herself, can be supposed to have had in view. But with the object we have nothing to do. The state undoubtedly has a right to prescribe a remedy if there be none. She has also a right to regulate the form of the remedy, and the time and manner in which it shall be pursued, so that in doing so the contract is not impaired. The adequacy or appropriateness of the remedy were questions for the legislature. This is not a remedy for the benefit of individuals; it is the remedy of the state, prescribed by herself and for herself. It is admitted that the legislature had a right to prescribe an adequate remedy, and when that is a remedy for the state they had a right to judge of its adequacy. An objection to its sufficiency does not come well from the corporation, so long as it steers clear of interference with granted powers. That the state has a right to restrain the action of a defaulting corporation has been shown. It is a right which belongs to her in her sovereign capacity. Every charter is granted by the exercise of the high functions of government, and contains a portion of the power of the government within it. Any abuse entitles the state to reclaim the power, and if no remedy existed at the time of making the grant it is competent for her to provide one. Other checks out of the way, it was competent to direct proceedings by bill, accompanied by an injunction to stay the proceedings of the corporation. By adopting the information, other ancillary remedies are not necessarily excluded. It was an implied condition in. the contract that the state might withdraw the franchise for a forfeiture. If it may be withdrawn, may the abuse not be checked until it is withdrawn! Most undoubtedly it may, and this proceeding is so far remedial at least, as to check the abuse of power. But it may be placed on higher ground. The state, being the only power that can control the abuse of authority by corporations, is bound to protect the public from the influences of these abuses, whenever they may occur. In this light it is perhaps a duty to suspend their action when they are charged with abuses. The preceding remarks apply exclusively to the constitutionality of the act under the constitution of the United States, and although it may not in any particular impair the obligation of the contract, it may still be an improper remedy, which point remains to be determined.

Third. Does the act vest judicial power in the clerk of the circuit court, or was it an act of judicial power by the legislature? In either event it is repugnant to the constitution of the state.

The second article of the constitution divides the government into three distinct departments, legislative, judicial and executive ; the power pertaining to each to be exercised by a separate body of magistracy; and the second section declares that no person belonging to one department shall exercise any power properly belonging to another. The first section of the fourth article declares that the judicial power of the state shall be vested in one high court of errors and appeals, and such other courts of law and equity as are thereinafter provided for. The sixteenth section provides that a separate superior court of chancery shall be established with full jurisdiction in all matters of equity. Thus we see the powers of government first separated, and then parceled out and transferred, not held in abeyance, but actually vested by the constitution itself.

These provisions do not define judicial power, nor do they limit it; but such as it then was, it was vested. In order to determine what is judicial power then, we must look to the source of our jurisprudence, and consult the writers who have defined the limits of the various parts of our system. Our ancestors brought with them the laws of the parent country, which as a body continued unchanged up to the time of the revolution. That memorable event resulted in a change of government, but the system of law, so far as it was consistent with the principles of the new government, still prevailed, and formed the basis on which the jurisprudence of the several states was reared. All the state constitutions have been framed in view of, and with reference to, the common law, which must consequently often be resorted to in construing constitutions. This is particularly the case in regard to our constitution. Ascertained, then, by this test, it will result that all power rightfully exerted by the common law courts, is in its character judicial. All such power was vested by the constitution in the courts created by it; and it must also follow that any new judicial power created by the legislature, will fall into the same channel. So soon as its character is fixed it has a place assigned it by the constitution, or if it cannot be exercised by any tribunal, it can have no practical existence.

The sixth section directs the clerk, on the filing of an information, to issue an injunction to restrain all collections by the bank, its assignees, officers or agents, or other persons; and it further provides that the injunction shall have the office and effect of an injunction in chancery, and that it shall continue in force until the information be finally tried. It is technically then an injunction to stay proceedings, not only in name but in effect, performing precisely the office of an injunction in chancery. By what kind of power then does an injunction issue under our system? To this question it seems to me there can be but one answer, and the elementary writers furnish it. Harrison, in his Chancery Practice, informs us that an injunction is a remedial writ, in the nature of a prohibition, to obtain which, the party’s right or injury, applying for the same must be certified to the court; and all injunctions are commonly obtained by order of the court upon motion, either upon matter confessed in the answer, or upon some matter of record, or some deed, writing or other evidence produced in court, whereby it appears there is some probability that the party ought to be discharged in equity. 2 Harrison’s Chancery, 220. Another elementary writer informs us that all injunctions are discretionary, and granted upon the circumstances of the case; and are prohibitory writs specially prayed for by the bill. 1 Haddock’s Chancery, 125. Indeed, an injunction under the English practice was always granted in open court, except in cases of great emergency, shown to be so by petition and affidavit, under which circumstances they were allowable in vacation, if the petition was accompanied by a certificate that the bill was filed. Jeremy, in his treatise on Equity Jurisdiction, 307, says that “ an injunction is a writ framed according to the circumstances of the case, commanding an act which this court regards as essential to justice, or restraining an act which it esteems contrary to equity and good conscience.” In the case of Roberts v. Anderson, 2 Johns. Ch. R. 202, Chancellor Kent held that the granting of an injunction and continuing it, must always rest in the sound discretion of the court, to be governed by the nature of the case. Our statute, which existed at the time the constitution was formed, treats this power as judicial. H. & H. Dig. 512, 513, 514, 515. From these authorities it must be manifest, if it were necessary to cite authorities to prove it, that the granting of an injunction is a judicial act; and not only is it so, but it requires the exercise of the soundest judicial discretion, founded not on arbitrary notions of justice, or of right and wrong, but on a knowledge of the settled rules of equity. Can the exercise of this discretion be dispensed with ? If it can the exercise of judicial power becomes a mere ministerial act. This is a power which existed as judicial power when the constitution was formed, and as such it was disposed of, and cannot be withdrawn. No portion of jurisdiction was left undistributed. If it be really an injunction in chancery, it is comprehended in the words, full jurisdiction in all matters of equity.” The jurisdiction of the court of chancery is exclusive in all matters of equity. Blanton v. King, 2 How. 856; Carmichael v. Browder, 3 How. 252. This excludes the power of the circuit courts, for they have no power over injunctions except in certain specified cases. The .law defines rights and provides remedies, but it is for the judiciary to construe the law in its application to the objects of its provisions, and to enforce the remedy. It was said that an injunction is mere process which is always subject to the regulation of the legislature. An execution is also process; can the legislature award an execution without a judicial determination to support it? It cannot. A distinction must be observed between process which precedes judicial action, and that which follows it as a consequence. An injunction is of the latter description. Process to bring a party into court has never been regarded as requiring judicial action, and hence it is issued as a matter of course by the clerk. The subpoena in chancery brings the party into court; but the injunction performs a different office. It is in the nature of a judgment, and cdmmands what shall be done. The law may declare oil what facts this judgment for an injunction may be given, but it is for the court to determine Whether the party applying brings himself within the rule of law. If I have succeeded in showing that judicial action is requisite in granting an injunction, and that it is that description of power which is within the meaning of the constitution, then beyond question this injunction violates the constitution, for it was granted either by the clerk, or by the legislature. If it is Sustained in this case, why is it not in every case in which the legislature may prescribe it 1 But the legislature also determined how -long the injunction should continue. This was Certainly an exercise of judicial power. It was doing all that the chancellor -could do in any case. And moreover, if this injunction was returnable ill chancery, it was tying the hands of th'e chancellor, by deciding in advance on its period of duration, notwithstanding any showing that might be made for its dissolution. If it was not returnable into chancery, it was the creation of a new jurisdiction, with a new rule of power. My opinion is, however, that this injunction was returnable nowhere, because no court had any power over it. If this be true it was unconstitutional, because it amounted to a legislative injunction.’

The provisions of the section of law under consideration ahow the necessity of such a discrimination as cannot ordinarily be expected of a clerk. The -proper direction of the injunction involves a construction of the statute which is by no means free from difficulty.. For instance, to what kind of claims does it extend ? Who are assignees within the meaning of the law, and to what officers and agents, and who are such ; and to whom does the statute refer by other person or persons 1 This construction of the act was left to the clerk, who is a ministerial officer. I conclude, then, that ’the act operates as a legislative mandate for an injunction, and that to some extent it confers judicial power on !the clerk.

I proceed to make a few remarks as applicable to the Commercial Bank of Rodney, which differs from the others only in •this, that prior to the passage of this act it had assigned all its effects and securities -for the benefit of creditors. And the assignees moved to quash the injunction, -which motion the court overruled. The assignment having taken place before the act, and the bank having by it parted with all her interest, it is difficult to perceive on what ground the legislature could enjoin the assignees. To this, however, it is answered that the seventh section of the act of 1840, prohibits such assignments. I have before had occasion to express an opinion on this act, and I still think that a transfer of a note by a bank is not void, but voidable at the election of the maker. He may avoid it if he will, but that he may also waive the objection is, I think, equally clear. Suppose he should by promises or otherwise induce the assignment to a third person, this would amount to a waiver of any defence. The injunction is directed against assignees generally, and by its letter extends as well to assignments made before 1840 as after that time. In spirit it does not embrace such, nor can its provisions be extended to them. A chancellor, if applied to, would undoubtedly refuse an injunction as against, assignees who acquired title before 1840; and it is not equally necessary that the clerk should make this discrimination, the doing of which is the exercise of judicial discernment. But, further, the act of 1840 certainly does not embrace fairly a general assignment for the benefit of creditors; it is silent as to any property of the bank, prohibiting only the transfer of notes or evidences of debt, so that a general assignment, to some extent at least, would be valid, even made since that act. Note-holders are creditors, and entitled to the benefit of such assignment, if they desire to avail themselves of it. Here then is another legal question the clerk must solve before issuing the injunction. The difficulties that must arise in limiting the injunction so as to make it operate on those persons only who are legally embraced by the act, when they claim as assignees, are offered as additional proofs of the judicial character of the act to be performed, and for this purpose, in part, were my remarks extended to the case of the assignees of the Commercial Bank of Rodney.

The embarrassment which I feel in being compelled, from the convictions of judgment, to declare that the legislature has, in any particular, transcended the limit of their authority, is, to some extent, diminished, though certainly not removed, by the reflection that this duty is performed in preventing the encroachment of one department of the government on another. The importance of keeping them separate, not only in theory but in action, is universally admitted to be a feature of government, essential to liberty. This subject was very fully discussed by Mr. Madison in some of the numbers of the Federalist, in which he not only shows and urges the importance of a practical separation, and the necessity of confining each department within its proper sphere of action, but he admonishes us that the tendency of the legislative department is to concentrate power to itself; a tendency, which he said could only be counteracted “ by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” He calls the legislature the more powerful member of the government; and if it be so, its encroachments should be the more zealously watched. Mr. Jefferson has also said that all the powers of the government, legislative, executive, and judiciary, result to the legislative body. The concentration of these in the same hands is precisely the definition of a despotic government.” I mean not to impute to the legislature any intentional departure from the orbit of its power in this instance. The conflicting opinions of this court on the points involved, are a sufficient vindication of the rectitude with which the legislature acted. I quote from the two great statesmen mentioned, for the purpose of showing more clearly my own duty in relation to the constitutional principle involved.

The cases of the State v. The Grand Gulf Bank, and The State v. The Bank of Port Gibson, depend upon the same general principles. There is a difference in their attitude, however; by the judgment of the circuit court the informations were improperly quashed.

In my opinion, then, in the case of the Commercial Bank of Manchester, the injunction ought to have been quashed, and that the same order ought to have been made in the case of the Commercial Bank of Rodney, and this I think should be the judgment of this court. But in the other cases, it was error to quash the informations for which the judgments ought to be reversed, and the causes remanded.  