
    Mayor and Aldermen of Alexandria vs. J. L. Dearmon.
    1. Statute. Repeal. When it will not be implied. The repeal of an act of the legislature cannot be implied from the mere fact that some of the evils provided against are subsequently removed. Thus, the act of 1047, ch. Ill, § 10, requiring the sheriff of DeKalb county to hold certain municipal elections on a designated day "in each and every year,” and fixing a penalty for his neglect so to do, is not repealed by the general law of 184-9, providing for the holding of such elections at any other times than those named in the charter, if omitted for any cause to be held on the charter days, and giving validity to the same. In the absence of any other objection the duty of the sheriff as well as the penalty for neglect still remain.
    2. Same. Constitutional law. The act of 1847, eh. Ill, § 10, which requires the sheriff of DeKalb county to hold certain municipal elections for the town of Alexandria, on a designated day in “each and every year,” under a penalty of fifty dollars for failure so to do, is not a “law of the land,” in the sense of the constitution, and therefore void.
    FROM DEKALB.
    By the act of incorporation of the town of Alexandria, in the county of DeKalb, passed in 1848, ch. Ill, § 10, the sheriff of said county is required to open and hold an election in said town on the second Monday in February in each and every year for the election of municipal officers, and upon his failure to do so, he forfeits the sum of fifty dollars, recoverable before a justice of the peace for the use of said' town. In 1850, by ch. 17, the legislature passed a general law, regulating the incorporation of towns and villages, and authorizing the same to be done by the county courts. By § 4 of said act, the sheriffs of such counties in which towns may be incorporated under the provisions of. said act, are required to open and bold elections in such towns, for municipal officers, on tbe first Saturday in January in each and every year: and by §§ 14-16, if tbe sheriffs shall fail to bold such elections as aforesaid, they may, on giving the notice required, bold tbe same at any time, and such failure shall work no forfeiture of tbe charter, but such elections shall be as good and valid, as if they had been made on the regular day designated by law. On the second Monday in February, 1852, the sheriff of De Kalb county, the defendant in this suit, failed to open and hold an election in the -town of Alexandria, for the election of municipal officers, whereupon this action was brought before a justice of the peace of said county to recover the penalty aforesaid. The case was brought by appeal into the circuit court of said county, and was submitted to a jiu-y before Goodall, judge, at the December term, 1853. The court charged the jury, that the general law of 1850 repealed the provisions of the charter under which this suit was instituted. There was verdict and judgment for the defendant. The court refusing the plaintiff’s motion for a new trial, an appeal in error was taken to this court.
    M. M. BeibN, for the plaintiff in error,
    with whom was W. M. "Wade, who said:
    1. The act of 1848, incorporating the town of Alexandria, delegated to the citizens thereof certain powers and privileges, which the State had no power to withdraw. The only manner these rights could be lost under the act was, by a forfeiture or surrender of their
    
      charter, this being a well established principle of the common law; even if the penalty had been directly repealed, such repealing act would be void; but we contend that the penalty is neither directly, nor by implication, repealed by the act of 1850; by reference to said act, on page 87 of the pamphlet acts of 1849-50, it will be seen that it was the manifest intention of the legislature that it was to apply to the charter of incorporation made by the county courts hereafter. But it is insisted by the' defendant, that by the 16th section of the act of 1850, this penalty is repealed, because it says, if the election for corporate officers should not be held at the time specified in the charter, that the charter should not be forfeited by such failure, but it shall be lawful for the officer or other person authorized under the charter, to proceed at any time in giving notice, &c., and the persons elected shall be entitled to the emoluments of the office, &c., and therefore, as the act makes valid an election held after the time specified in the charter, the reasons for the penalty having failed, its force and binding effect has failed, and there is no use for the penalty affixed by the legislature. Now, we contend, that if this act has any application to the former acts of the assembly, incorporating towns, it only gives them an additional safeguard and protection against the negligence of the persons directed to see that the primary object of the corporation is carried out, (to wit:) the election of officers, and is only cumulative in its operations; but we think the legislature only intended that the rights granted, should apply to the charters of incorporation by the county court. Then in either view of the case, the circuit judge erred in Ms charge, and this case must be reversed.
    But it is contended by the defendant, that this act, creating the penalty, is partial, and not a general law, and therefore unconstitutional and void. Now, if your Honors can dispose of this question in its present aspect in this court, we are ready to meet it. Then the defendant says, according to the principles decided in the case of The State vs Budd, 3 Humph., that the act creating the penalty is unconstitutional, it being a partial law, and not the law of the land.
    "We think there is no similarity between the case under consideration and the case of The State vs. Budd: in that case, the legislature created a new offence and remedy applicable only to a certain class or set of men, which was clearly partial, and not a general law. But we contend the cases are unlike in this, that the legislature had the power, unquestionably, in creating corporations to direct that the sheriff of the county should hold the election for officers, according to the case of Vanzandt vs. Waddle, 2 Terg.; in which it is expressly decided, that when a right exists, the legislature would have the power to pass a law in aid of the remedy to such right: Then the inquiry under this authority naturally arises, as to what are the duties of sheriffs at common law, for if the legislature have the power to direct the sheriff of De Kalb county to -hold the election on a certain day for officers in the corporation of Alexandria, which we 'think it certainly had, that being a part of the duty of sheriffs at common law, and an act to that effect would only be declaratory of the common law, it would likewise have the power to give an additional remedy by way of a penalty. Then, sheriffs at common law, were first appointed by the Mng, therefore he hath his authority given him by two patents, by the one the king commits to him the custody of the county, by the other he commands all his subjects to assist him in all things belonging to his office. 4th Bacon’s Abridgement, title sheriff C. Then as he receives his patent from the king, and has the custody of the county, &c., what are his duties? It is laid down by the same author, that the “sheriff is the immediate officer of the king’s courts, to whom all writs and process are regularly to be directed, and who is to execute the same, &c.” See title, sheriff, M., Bacon’s Ab. Then what are the king’s courts in England? Lord Coke lays it down, “that the king of England is armed with divers councils, one whereof is the court of parliament. 1st Coke’s Littleton, 110.” Then the parliament of England was considered one of the king’s courts, and the sheriff is the immediate officer of the king’s courts, and is bound to execute all process, orders and decress of parliament. We assort, if the parliament pass a law, incorporating a town, that as incident to the power of creating said corporation, there must be some one to cany it out, or it would be an act of folly to pass the law; and as it is laid down, also, in Coke, on page 109, “but as counties are certain circuits or parts of the kingdom into which the whole realm is divided for the better government thereof, and every of them is governed by a yearly officer, called shreve.” Then as sheriffs are the representatives or bailiffs of the king, to carry into effect the laws of the land, they must do all things ne-cessaiy to consummate an act of parliament. In Bacon’s Abridgement, title, sheriff A, the sheriff is denominated the bailiff of the crown, and his county, of which he hath the care, and in which he is to execute the king’s writs, is called his bailiwick:. It is further laid down by Lord Bacon, that if a sheriff refuse to execute any writ or order of a* public nature, he may be fined and imprisoned, and is also liable to an action to the party grieved.
    Then, if it is the duty (as appears from the old authorities) of the sheriff who has the custody of each county, to execute as bailiff, all orders of the king, he representing the king in his county, and also of his courts of parliament: I ask if this is not a proceeding by the law-making power in lieu of the king’s court of parliament, and is it not the sheriff’s duty at common law, to hold the election as the act requires; if so, is it not the duty of the legislature to carry on the corporation according to its chartered rights; if it is, then as the sheriff is the bailiff of the supreme power, and bound to carry on all things created by the law-making power in his county, when directed, it would follow, as a matter of course, that the sheriff was bound to obey the instructions given in the act of assembly, requiring him to hold the election for corporate officers, and. according to the case of Vanzandt vs. Waddle, as the right exists, the legislature might well and constitutionally affix a penalty.
    But again, who can visit a corporation, and by what means, no one but the king, and in his stead in this country, none but the legislature or law-making power through the proper officer of the State; then as a corporation is a constituent part of the government, created by the legislature, and to he constituted and perpetuated by the officers of the law, and as the sheriff is by the common law, the .bailiff, elected or appointed to carry out -and transact the business of the State, he must obey the commands of the law, and do all things that his’ principal requires him to do, and that is requisite for the principal to do.
    But in addition to the above reason, we insist that the 7th section of article 11 of the Constitution, under which the defendant insists this act falls, and is rendered void, makes an exception in favor of such acts as the one now under consideration. See Constitution N. and C., 60.
    We insist further, that as by the act of 1835, ch. 2, N. and C., 275, it is made the duty of the sheriff to hold all popular elections; and also by the act of 1835, ch. 73, N. and C,, 277, when it shall happen that the officer appointed by the act of incorporation, fails to hold the election upon the appointed day, it shall be lawful for the sheriff" or some justice of the peace to hold air election on any other day, &c., all of which goes to show, that it is not only the duty of the sheriff at common law, but by the statutes of this State, and therefore, the principle heretofore referred to in the case of Vanzandt vs. Waddle, applies .in this case. But if your Honors should be of opinion, that it was not a statutory duty of the sheriff, and should be thrown upon the question of common law duty, it may become necessary to construe this statute, in order to arrive at the intention of the legislature that passed it, and apply the principle of the case of Vanzandt vs. Waddle, 2 Yerg.; because if in tbe construction of the act the court should be of opinion that it is remedial and declaratory of the common law, then I maintain that it is strictly constitutional. Mr. Kent, in page 464, vol. —, says: “Statutes are to be construed in reference to the principles of the common law; for it is not to be presumed the legislature intended to make any innovations upon the common law, farther than the case absolutely required. Eor the interpretation of all statutes, whether penal or beneficial, four things are necessary to be considered.”
    1. What was the common law before the act? This we have shown heretofore by reason and authority.
    2. What was the mischief against which the law did not provide. It is clear that the law intended to make the penalty to insure the holding of the election, as the common law only gave an action for the actual loss, which was difficult to prove, and was, consequently, seldom resorted to, hence the reason of the law and its remedial effect.
    3. The true reason of the law. This is before shown.
    Then 1st. What was the common law before the act under which the penalty accrued was passed? It was that the legislature had a right, by statute, to create powers or corporations, and Mr. Kent says, “that where a power is given by statute, every thing necessary to the making of it effectual or requisite to attain the end, is implied, consequently, if the legislature had a right to create corporations, it has the power of compelling some one to organize such bodies. If so, who is it? By the common law, as I have before shown, and by the practice and laws of this State, it is the duty of the sheriff of each county to hold all elections for carrying into effect any law of the State: then if it is the duty of sheriffs to hold elections, has not the legislature the right to impose a penalty upon sheriffs generally, or specially, to compel him or them to perform his duty, and that such a law would not be partial, nor creating a new crime or remedy, but only be in aid of the law as it stood before the passage of such a law by the legislature. Then if it would only be declaratory and remedial, this case would not come within the principle decided in the case of The State vs. Sudd, but would more appropriately come within the case of Vanzandt vs. Waddle, where it is expressly decided, that where a light exists, the legislature would have the power to pass a law in aid of the remedy to such right.
    A. M. Savage, for the defendant in error,
    said:
    In order to understand the powers and duties of a sheriff, we must know what they were at common law; for it is by the common law that he is governed, except as altered by statute. Lord Coke classes the duties of sheriff under three heads, to wit: The service of process. 2. Executing the judgments and decrees of courts of justice, and 3dly, he is conservator of the peace, 1 Coke, 64. The two former of these duties he performed by virtue of writs directed to him, the latter duty was obligatory upon him by virtue of his office. He also, by virtue of writs directed to him for that purpose, held elections for members of parliament, and summoned the nobility, &c. 1 Coke, 49, note O. lb. 64, note B. ' By the common law, it does not appear that the sheriff was bound to hold any election, except for members of parliament, and not for them till the king’s writ for that purpose had been delivered to him. He was the 'first man in the county, and was bound to execute the laws of the land, and to apprehend felons and traitors, and defend his county against the public enemy, but it was no part of his official duty to assist, or in any manner to interfere in the organization of corporations; his services could not be demanded for that purpose.
    By the statutes of this State, the sheriff of each county, by virtue of his office, is bound to hold elections upon all general election days, and to know those days without notice or .precept, but he is not required to hold special elections without a writ or notice to do so; and the reason is, he is bound to know the general laws of the land and to execute his duty under them, ''but the elections of corporations are regulated by their charters, and are outside of the general duties of the sheriff. Neither by the common law, or by any general statute of this State is it made the duty of the sheriff to know the provisions of their charters, and to hold their elections.
    The question then arises, can a sheriff of a particular county, by a special act of the legislature, be compelled to perform a particular service outside of his duty, as such sheriff by the general law of the land, and which service is not liable to be performed by the sheriffs of other counties. I insist that he cannot. . I insist that the clause in the plaintiff’s charter, requiring the sheriff to hold the election, is not obligatory upon him; that it is a duty he may perform or decline, at his choice, and that the part inflicting a penalty of $50 for failure to hold the election is void and unconstitutional.
    By art. 1, sec. 8 of the Constitution of the State it is declared, “that no freeman shall be taken, or imprisoned, or disseized of his freehold, liberties, privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or the law of the land. ” The plaintiff’s right to a recovery will depend not upon the judgment of their peers, but upon the clause in their charter, giving the penalty of $50, &c., and their right to recovery will further depend upon the fact, whether said clause is the law of the land. But before I proceed to examine this question, I desire to cite another clause in the Constitution, which comes directly in conflict with the plaintiff’s claim, to wit: “That no man’s particular services shall be demanded, or property taken or applied to public use, without the consent of his representatives, or without just compensation being made therefor.”
    Under this clause it was decided in the case of Nelson vs. Allen <& Harris, 1 Ter., 360, that the acts of assembly allowing and giving the defendant the value of the improvements made upon the land, in an action of ejectment, or by suit for the same, were unconstitutional and void.
    And in the case of Hardin vs. Goodleti, 3 Ter. 41, it was held, “that it was only for the public use that the State was authorized to exercise the right of eminent domain, and that the State had no right to take one man’s property and give it to another for the erection of a saw mill and paper mill, these being wholly for the use of a private individual. Under the above clause of the Constitution, as explained by these decisions, a citizen’s property or his particular services can be demanded for public purposes only, and when-so demanded, he is entitled to just compensation therefor. Mow, sir, what does the charter of the plaintiff seek to do; it seeks • to make the defendant perform a particular service, which, as a citizen, he is not bound to perform, and which constitutes no part of his general duty, as sheriff, and it seeks to make him perform these services for private purposes, under heavy penalties, without any compensation at all. Why, sir, when in the regular line of his duty, as sheriff, he is not bound to act without pay — he is entitled to be paid for all his services. It is no part of the sheriff’s duty to know the charter of every corporation in his county, he is not one of the corporators, it is the duty of corporations to hold their own elections, and if it is a duty outside of the general duties of the sheriff, and which he can be made to perform, by special act of the assembly only, and this is the only way he can be compelled to perform it, if at all, then the legislature would have the same right to order me to hold the election, or to order the register or county clerk, or any other citizen todo it.
    The sheriff and the register would stand on equal ground; to hold the plaintiff’s election would be the duty of neither, and if the legislature undertakes to make it the duty of either, they must look to the constitution and see that their act is the law of the land.
    Now, let us examine if this part of the plaintiff’s charter is the law of the land.
    What is the law of the land: It was decided in the cases of Vansandt vs. Waddle, 2 Ter., 260, and Wally's heirs vs. Kennedy, 2 Ter., 554; and the Bank vs. Cooper’s securities, 2 Ter., 599, that the phrase “law of the land, means a general and public law, equally binding upon every member of the community.” And in the case of Shepard vs. Johnson, 2 Humph., 285, it is held, that “whether a statute is the law of the land within the meaning of the 8th sec. of the bill of rights, always depends upon two propositions. 1st, that the legislature had power to pass it. 2nd, that it is a general and public law, equally binding upon every member of the community. In the case of The State vs. Budd, 3 Humph., 491, it is said that a law of the land is a rule alike embracing and equally affecting all persons in general, or all persons who exist, or may come into the like state of circumstances.” And it is further said by the court, that “a partial law, on the contrary, embraces only a portion of those persons who exist in the same State, and are surrounded by like circumstances,” and the argument of the court is conclusive -against the constitutionality of the plaintiff’s charter in the present case. The case of The State vs. Budd, and "the present case, are precisely analagous.
    The charter of the Union Bank contained a clause, making it -a felony for any of its officers, agents or servants to embezzle any of its funds, or make false entrys, &c., and under this section, Budd, a clerk in the bank, was indicted for embezzlement and making false entrys, and it was argued for the State, that this clause was the law of the land; and did embrace all persons that were in, or could come in like circumstances, that is, all persons who were then, or might thereafter he officers, agents or servants of the “Union Bank; ” hut the court reject the argument, and say, to make the clause valid, it shorrld have extended to all the officers, agents and servants of all the banks in the State. They say, that the. legislature had just as much power to pass a law against the clerk or agent of any particular merchant in Nashville.
    The court say, that a law could not he passed to make the register of the "Western District liable for acts of non-feasance or mal-feascmee, without embracing tire registers of Middle Tennessee and East Tennessee, because the law would not be uniform, and still it would embrace all the registers of West Tennessee.
    Now, sir, to apply these' principles to the case before us, I admit that a general law, applying to all the sheriffs in the State, and inflicting a penalty of $50 upon any of them for failing to hold elections for corporations in their respective counties, where the duty was enjoined by their respective charters, would be valid, by paying the sheriff for his labor, but to single out the sheriff of De Kalb county and make him liable, when no other sheriff in the State is required to perform like service, is a nullity. The objection to the law is its local bearing and want of universality, and whether it is directed against the clerk of a particular bank for making a false entry, or the sheriff of a particular county for failing to hold a particular election, the principle is the same, and is equally fatal to the law.
    
      And the court say, in the case of Budd, that the principle is precisely the same in civil and in criminal cases.
    But I further insist, that the penalty in the plaintiff’s-■charter has been olea/dy repealed hy implioation. This court had decided, in 8 Humph., 522; and 10 Yerg., 218, that an election for corporate officers not held upon the day specified in the charter, was void; in consequence of which, the penalty was just in the plaintiff’s charter, to force the sheriff to hold the election-on the charter-day, to prevent a suspension of the active powers of the corporation. But to change the law in this respect, and to remedy the evils likely to occur’ by failure to hold corporation elections upon the-charter-day, the legislature declared that all elections held for corporate officers on any day, should be as good and valid, as if held upon the charter-day, &c., and thereby removed the cause and evil intended to be guarded against by the penalty in the plaintiff’s charter, and the reason for the penalty ceasing to exist, the penalty must also cease.
    This court decided in the case of Smith vs. mole-man’s heirs, Cooke, 330, (Meigs’ Digest, 1820, sec. 2,) that “if the provisions of a subsequent statute are commensurate with the evils redressed ;by the former, it operates as an entire repeal, otherwise, it is a repeal pro tanto P See also, Dioleerson vs.’ Rogers, 4 Hum., 182. Also, 4 Hum., 69.
   Caeuthebs, J.,

delivered the opinion of the court.

This action was brought to recover a penalty of $50 from the defendant, for failure to hold an election for officers of the corporation of Alexandria, on the second Monday of February, 1852, as required by the charter of said town.

A recovery was had before the justice of the peace, but on appeal to the circuit court, the plaintiff failed upon the ground, that the judge charged that the provision in the charter, by which ihe penalty was created, had been repealed by the act of 1849-50, ch. 17, §16.

The act of 1847-8, ch. Ill, § 10, makes it the duty of the sheriff of DeKalb county to hold the election for town officers, aldermen, &c., on the second Monday of February, of each and every year, and “for failure to hold said election, or causing the same to be done, said sheriff shall forfeit and pay the sum of fifty dollars, to be recovered by action of debt, before any justice of the peace for DeKalb county, in the name of the mayor and aldermen, for the use of said corporation of Alexandria.”

In 1849-50 a general act was passed, providing for holding the election for officers of town corporations at any other times than those prescribed in the charters, if omitted for any cause, to be held on the charter days, and giving validity to such elections. The argument made is, that the reason and cause of the penalty, in the act of 1848 was, that if the officers were not elected on the day designated by the chartex1, no subsequent election would be valid, and that as this difficulty was removed by the act of 1850, it was an implied repeal of the penally. And so the law was charged by the ¡circuit judge. We cannot concur in this reasoning or conclusion. The two acts can well stand together, they are perfectly consistent with each other.

It is no sufficient argument in fayor of an implied repeal of an act of the legislature, that some of the evils provided against are subsequently removed.

The penalty is for a failure of duty in a public officer. Some of the consequences of that neglect to the injury of the public, are removed by a subsequent act, but the duty still remains, as well as the prescribed penalty for neglect. Cooke 338. But the act of 1835, ch. 49, Car. & Nich. 277, • is of the same purport as the act of 1850.

But upon another ground, assumed in argument, we think the judgment below must be sustained.

The clause in the act of 1847-8, upon which this action is founded, is not “the law of the land,” and therefore cannot be enforced without an infraction of the ■constitutional rights of the defendant.

The principles settled in the case of Budd vs. The State, 3 Hump. 490, are, as we think, conclusive in their application to this case. This case is based upon see. 8, in article 1, of our constitution, which is in these words:

“That no freeman shall be taken, or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.”

The meaning of the phrase 11 law of the lana!” is so frilly expounded in the case above cited, and the previous cases of Vanzant vs. Waddle, and Walley's heirs vs. Kennedy, and the Bank of the State vs. Cooper, 2 Yerg. 554, 560, 599, Officers vs. Young, 5 Yerg. 320, that it would be unnecessary now to dwell upon that subject, as no additional light can be shed upon it. Nothing is left to be done but to apply the principles so well settled to new cases as they may arise before us.

The '•'■law of the land,” then, in the sense of the constitution and in reference to the acts of the legislature, is an act which extends to and embraces all persons who are or may come into the like situation and circumstances.

There are more than seventy sheriffs in the State. This act of assembly prescribes a penally against the sheriff of DeKalb, or “deprives him of his property” for not performing a certain duty. To make this legislation the “law of the land” it would have to be applied to all other sheriffs in the State of whom the like duties are required.

The act then does not apply to and affect all persons or officers who are or may be in the same situation and circumstances, and is therefore partial and limited in its operation, and consequently not the “law of the land” in the sense of our constitution.

It is no answer to this objection, that the penalty complained of is prescribed in a charter of incorporation, and is for that reason saved from the constitutional inhibition.

This point is referred to, discussed and decided in the case of Budd vs. The State, before cited. The court there say, it is to be regarded as if it were a separate and distinct act of one section.

This is a question of interest and importance, but it is deemed useless, if not improper, to enter again into its discussion, as it has been exhausted and clearly settled by our predecessors in the cases to which refer-cnee has been made, and others on the same subject.

The clause in the constitution, as well as that against private and partial legislation, contained, in the 'Tth section of the 10th article, there is reason to believe is too much disregarded or overlooked by our legislature, and ought to be more effectually guarded.

The judiciary must magnify and protect the supreme law.

Let the judgment be affirmed. 
      
      Note. — The defendant, Budd, was indicted in- the circuit court of Davidson county, in the year 1841, for making a false entry as one of the clerks of the Union Bank of Tennessee. He was tried and convicted of the charge. The Union Bank was incorporated in 1882. By §22 of the aet of incorporation, “ if the cashier or any other of the officers, agents or servants of said corporation, shall embezzle, and without authority from the president and directors of said bank, appropriate any of the funds of said corporation to his own use, with intent to cheat and defraud the president and directors and company of said bank, or shall fail to make correct entries, or shall make false entries upon the books of said bank, with intent to defraud said bank, or any. other person whatsoever, — said officers, agent or servant of said bank, shall be held and deemed guilty of felony, and shall upon conviction thereof be sentenced to confinement in the jail and penitentiary of this State, for a period of not less than five, nor more tha» twenty-one years.” 1
      
        Upon this section the defendant was indicted. At the March term, 1842, of the criminal court of Davidson, to which the cause had been transferred, he was put upon his trial before Turner, Judge, and a verdict of guilty was rendered against him and judgment rendered thereon. The court refused him a new trial and he appealed in error to this court. In this court the judgment was arrested and the defendant discharged.
      The learned Judge, Reese, who pronounced the opinion of the court, after disposing of the other questions involved in the case, as to the main question discussed at the bar whether or not §22 of said act of incorporation was a ‘‘law of the land” in the sense of the constitution, proceeded thus: “ But a graver and weightier question exists. That question is, whether, in reference to our bill of rights, §22 of the act referred to, can be regarded and enforced as the law of the land. And it may be remarked as preliminary to this investigation, that it has not been contended here on the part of the State, that any argument in favor of the validity of the section in question, can be founded upon the connection in which it exists, as part of a law granting a charter to the Union Bank; in other words, that it is not to be regarded as part of (he contract between the State and that corporation; and even if so regarded, that it would derive no additional validity from that circumstance. This has been properly conceded; for surely the State as a contracting party would have no greater right to create the felony in question, in reference to the officers of the Union Bank, than it would possess independently of such attitude. The section then is to be regarded as if it stood alone; and. as if, aloof from all connection with the charter of the Union Bank, it had been a statute of one section, enacted after that institution had full corporate existence, with a view to make the felony in question, affecting the officers, agents and servants of that institution. It is an act then creating a new felony in relation to the officers, agents and servants of the Union Bank, and them only. Is this a law of the land in the sense of our bill of rights? Law, to use the definition of Mr. Justice Blackstone, a little modified to suit the genius of our institutions, “is a rule of civil conduct prescribed by the law making power of the State, commanding what is right, or prohibiting what is wrong.” This then is a rule of conduct prescribed by the legislature, and directed to the officers, agents and servants of the Union Bank, prohibiting them from doing what is wrong. What is the Union Bank? It is a legal person having capacity to sue and be sued, to own property and to employ agents and servants. This then is a rule mandatory to the servants and agents of this legal person. It expends all its force upon them. The mere statement of the question, it seems to us goes far towards superseding the necessity of elaborate reasoning on the subject. Not indeed, upon the ground that the officers, agents and servants of this legal person, the bank, are more or less numerous, but because, the officers, agents and servants of this person only, and not of any other persons, are comprehended or affected. If the felony were enacted with regard to the clerks, agents or servants of a merchant, to deter them from embezzlement or false entries, would it be imagined for a moment that it would be regarded as a “law of the land,” and consistent with the billot rights? It is believed none would so contend. And why not? Simply because a law of the land, is a rule alike embracing and equally affecting all persons in general, or all persons who exist, or may come, into the like state and circumstances. A partial law on the contrary only embraces a portion of those persons who exist in the same State, and are surrounded by like circumstances. If peculiar felonies affecting all the people, or certain public officers of East Tennessee, only, were held to be the law of land, it would be difficult to say for what object that clause was inserted in the bill of rights. One of its objects has been stated in various adjudications in our State, to have been to protect the feeble and obnoxious from the injury and injustice of the strong and the powerful, and in general to protect minorities from the wrongful action of majorities. This being its scope and purpose, would it not interdict the legislature from passing such an act as is last above referred to, for instance, creating certain acts of non-feasance or malfeasance, of the Register of the Western District, although a public officer, a felony, leaving the Registers of Middle and East Tennessee unaffected by it? Certainly it would. And why? Because the law would not treat similarly all who were in like circumstances; it would therefore be partial, and of course not the law of the land. At the time of the enactment of this statute there were other banks having actual corporate existence, as we can see from our statute book, with like faculties and functions. They were not embraced; other banks had a potential existence, that is, the legislature had power to make others. The act however embraces the Union Bank and its servants alone, and not all who are or may be in like state and circumstances. If as in Alabama and Arkansas, the legislative power being constitutionally expended by the creation of one bank, a felony had been created, limiting itself in its terms to the bank established, we do not doubt, that under such a bill of rights as ours, such law would be constitutional. We do not think the law in question partial, because merchants’ clerks or the public officers called clerks were not embraced, but because the officers, agents and servents of banks in general, persons in like situation and circumstances were not embraced. It matters not how few the persons are, if all who are, or may come into the like circumstances and situations, be embraced, the law is general and not a partial law. The principles here set forth are not new in this State; they are little more than the re-announcement of what ís said in 2 Yerg. 260, 554, 659. 4 Yerg. 202. 5 Yerg. 320, and Jones vs. Perry, 10 Yerg. Those eases, indeed, refer themselves to the operation of partial laws upon civil rights and remedies, 'while this ease, happens to be the application of our bill of rights to a partial law creating a felony. But the principles are identical, and there is certainly no reason why the protection intended to be extended to individuals by the bill of rights, should not be as effective, where their liberty, as well as their property, may be exposed to the operations of a- partial law.
      We are duly sensible of the importance of the ease before us, and of the magnitude and value of the interests involved. Although the bank, no doubt, mainly relies for its safety, upon the probity of its officers, and the amount of their bonds, and the solvency of their sureties, still the facts upon this record establish, that they need, also, the safe-guards intended to have been thrown around them by the penalties created in the 22 § of their charter ; and we have the satisfaction to believe that the interval is a brief one, which shall elapse before those safe-guards shall be restored and made-effective in a manner consistent with the public liberty. As to the co-ordinate department, to whose enactment we feel unable to give effect, we cheerfully acknowledge that their intelligence and numbers, the high motives and sanctions under which they, too, act, impose upon us the obligation, when comparing the result of any deliberation of theirs, with the paramount law, which governs us all, to be well satisfied, that in declaring a statute invalid and void, we but obey the mandate of the constitution. But when so satisfied it requires but ordinary virtue and firmness in this court so to pronounce. In this case, we are thus satisfied, and must thus pronounce.”
     