author:
Sutliff, J.
      Bartley, C. J. Brinkerhoff, J., J. R. Swan, J.

text:
    The Sandusky City Bank v. John B. Wilbor.
    The act entitled “ an act to tax banks and bank and other stocks the same as other property is now taxable in this state,” passed March 21, 1851, is not in conflict with the Ohio constitution of 1802, nor with the tenth section of article 1 of the constitution of the United States, prohibiting all laws impairing the obligation of contracts.
    The act of March 7, 1842, providing that all subsequent acts of incorporation should be subject to amendment or repeal in the discretion of the legislature, being in force at the time of the passage of the act of February 24, 1845, entitled “ an act to incorporate the State Bank of Ohio and other banking companies,” as well as the terms of the last-named act, indicates the understanding of the legislature enacting the law, that section 60 of the act was, like other laws, subject to amendment.
    Section 60 of said act of February 24,1845, is not a contract within the meaning of the constitution of the United States.
    The judicial construction given to the statutes under consideration, by the Supreme Court of the United States, being a departure by that court from the uniform and unanimous previous judicial construction given those statutes by the Supreme * Court of this state, ought not to constitute a rule of construction for this court.
    The judicial construction heretofore unanimously given to the statutes of February 24, 1845, and March 21, 1851, by the Supreme Court of this state, ought to be adhered to by this court until convinced that such construction is erroneous.

      Action on the case.
    Reserved in the district court of Erie county.
    This cause was commenced in the court of common pleas of Erie county, on the 31st day of May, 1853; and at the February term, 1854, was submitted to the court upon the issue joined, and judgment was entered for the defendant.
    The plaintiff appealed to the district court, and that court reserved the cause to this court for decision upon the following agreed statement of facts:
    “ It is agreed that the plaintiff is entitled to judgment in this case in its favor for the sum of thirteen hundred seventy-seven and' 91-100 dollars, with interest thereon from the 9th day of March, 1852, unless a defense can arise upon the following facts:
    “ The plaintiff is a lawful banking corporation, organized as an independent bank under the act of the general assembly of said: State of Ohio, entitled ! an act to incorporate the State Bank of Ohio, and other banking companies,’ passed February 24,1845.
    “The plaintiff, in 1851, made its return to the' auditor of Erie-county, in pursuance of the act of the general assembly of said státe, entitled ‘ an act to tax banks and bank and other stocks the same-as other property is now taxable by the laws of the state,’ passed March 21,1851, but filed at the same time with said auditor, and as part of said return, its statement protesting against the assessment and collection of any tax under the provision of said last-mentioned act; and that it would not pay any tax thus assessed, and would by all lawful means resist the collection thereof.
    “The auditor of Erie county, in a. d. 1851, assessed a tax upon said corporation of the sum of $1,399.91, by virtue and in favor of the act last aforesaid. The tax duplicate was placed in the *hands of the defendant, who was then the county treasurer of said county of Erie, and the defendant collected from the plaintiff the sum first above mentioned, by seizing money to that' amount, belonging to the plaintiff, and the same is the sum of money now in question.
    “ The plaintiff did not set off or pay to the State of Ohio on the 1st Monday of May, A. D.T851, any sum, for the reason thatsaid bank had not, during the preceding six -months, made any profit .over and above the expenses and ascertained losses during that time \ but said bank did on the 1st Monday of November, a. d. 1851, setoff and pay to said state, as. a tax, the sum of $64.13, in due conformity with, the provisions of said act of February 24,1845, aforesaid.

      “ It is agreed that the sole question in this ease is, whether a tax thus imposed by said act of the general assembly, passed March 21, a. d. 1851, can lawfully be assessed and collected consistent with the provisions of the constitution of the United States. If such tax is & lawful tax, and can be, under said last-mentioned statute, lawfully assessed upon and collected from the corporations created by the aforesaid statute, passed Februaiy 24, a. d. 1845, and complying with the provisions thereof, it is agreed that judgment shall be ■entered for the defendant.”
    Lane, Stone & Lane, for plaintiff.

      L. S. Beecher, for defendant.
   Sutliff, J.

The object of this suit, as appears from the foregoing ■agreed statement of facts, is to recover back from the treasurer of Erie county, the amount of tax assesed against the plaintiff, under the “ act to tax banks,” etc., passed March 21, 1851, and collected on the 9th day of March, 1852.

The plaintiff insists that the act imposing the tax was in conflict with the provisions of the constitution of the. United States, and the constitution of this state, prohibiting the passage of any law impairing the validity of a contract, and therefore unconstitutional and void.

*If the statute was obligatory upon the plaintiff, it is admitted that the same constitutes a justification for the defendant, and judgment in that case should be rendered in his favor; but if otherwise, then judgment should be rendered in favor of the plaintiff for the amount of $1,377.91, so collected, with interest from the time of its collection.

The 1st section of the act of March 21, 1851, entitled “ an act to tax banks and bank and other stocks the same as other property is now taxable in this state,” provides as follows “ That it shall ibe the duty of the president and cashier of each and every banking institution incorporated by the laws of this sate, and having the right to issue bills or notes for circulation, at the time for listing personal property under the laws of this state, to list the capital stock of such banking institution under oath, at its true value in money, and return the same with the amount pf surplus and contingent fund belonging to such banking institution, to the assessor of the township or ward in which such banking institution is located ; and the amount so returned shall be placed on the grand duplicate of the proper county, and upon the city duplicate for city taxes, in cases where such city tax does not 'go upon the grand duplicate, but is collected by the city officers, and taxed for the same-purposes and to the same extent that personal property is or may be required to be taxed in the place where such bank is located; and such tax shall be collected and paid over in the same manner that taxes on other personal property are required by law tobe collected and paid over; provided, however, that the capital stock of any bank shall not be returned or taxed for a less amount than its. capital stock paid in.”

.Section 5 provides : “ That the taxes levied and collected in pursuance of the provisions of this act, shall be in lieu of any taxes which such bank or banking company would by existing laws be required to pay on its dividends or profit a

But the plaintiff insists that the sum of sixty-four dollars and thirteen cents, so set off in the bank for the state, under section 60 of said act of February 24, 1845, should have been accepted and received from the bank by the state ; and that the treasurer should ^thereafter have abstained from collecting any further tax from the bank.

We do not understand that the plaintiff objects to this law of March 21,1851, that it is not just and equal in its provisions toward banking companies; or that the rule of taxation is more onerous toward banks, than the rule under which personal property generally was at the time taxed in this state.

Indeed, it must be conceded, that if the legislature had the authority to impose any tax upon this bank at the time, the tax law of March 21, 1851, was a just and reasonable exercise of such authority. The banking institutions of the state have never, to our knowledge, charged that the law wp,s dictated by any sinister motive, or contained any provision that could be regarded as a masked assault, or covert attack upon their franchises. The law when passed, it is well known, had a support in the legislature from all political parties. Its sole object, as shown by its provisions, was to raise by an equal and uniform tax upon all private property within the state, sufficient revenue to meet the public exigencies of government. And upon the passage of the law, a number of the best banks in the state, admitting its fairness, cheerfully acquiesced in its provisions, and thereafter continued to comply with its requisitions in the payment of their taxes imposed by the law.

But the plaintiff insists that by force of the 60th section of the act of February 24, 1845, under which it was organized, it was in law exempt from any future exercise of the right of taxation on the part of the state; and that the state became thereby bound to abstain, thereafter, from imposing any tax upon said bank.

If this objection to the passage of the tax law,' of March 21,1851, really exists, and the legislature had not, in fact, authority at the time to pass the law, it is obviously no answer to such objection, that the law so enacted is just and reasonable in its provisions.

A full investigation of the issue presented, requires a consideration-of two distinct and independent inquh’ies:

*1. Had any legislature of this state, under the constitution of 1802, power to gratuitously and arbitrarily inhibit a subsequent legislature from passing an equal and uniform tax law, reasonable and just in its provisions, imposing a tax upon all kinds of private property within the state, for the bona fide purpose of raising necessary revenue? and,

2. Was the legislature in fact prohibited from passing the tax law of March 21, 1851 ?

The right of taxation, like that of eminent domain, is one of the-highest prerogatives of government; and, as an incident of sovereignty, is derived by the legislature from the people. They both consist in the right of taking private property for public use. The right arises in each case from public necessities; and the exercise of these high prerogatives, is limited only by the exigencies of government. Neither taxation nor eminent domain ever was or can be the object of government. They are only its incidents. The exigency of the occasion is the sole basis on which these rights-rest; and the prerogatives themselves terminate with the exigencies which gave and sustained the right of their exercise. But. although the two prerogatives in their eminence and basis are similar, in other respects they are unlike. The. necessity for the-exercise of the right of eminent domain, is only occasional, and necessarily unequal, while that of taxation is constant and continuous, and may and ought to be equal and uniform. In the only particulars, material perhaps to the subject under consideration, there is a strict analogy between the rights of eminent domain and taxation. They are alike mere incidents of sovereignty, alike limited strictly by the exigencies of the public, and alike indispensable to the existence of government; since, without the exercise of these rights, government must be devoid of position and revenue. Without the right of eminent domain, there could be found no place for the exercise of the legislative, judicial, or executive powers of government; nor could there be public ways for the exercise of social and commercial relations, nor even fortifications for the common defense. Without the right of taxation for revenue, there could be no legal means for the support or defense of government.

*It is therefore evident that the very existence of a free government is dependent upon the exercise of these high prerogatives according to the public exigencies. No reason or argument can be adduced in favor of or against the extinction or limitation of either of these prerogatives that will not apply with equal force to that of the other. If either right be exercised by government beyond the public exigency, such exercise is so far forth an usurpation of power. If the government be restricted in the perfect exercise of these prerogatives according to the public exigency, its functions for the beneficent and legitimate objects of government are so far forth impaired and rendered inoperative.

It follows, therefore, if the existence of a free government be a right and dependent upon the exercise of the rights of eminent domain and of taxation according to the public exigency, these rights are continuous and co-extensive with the existence of the government, as its necessary incidents, in all time future. And if this be so, the time-honored maxim under the English government, that “ Acts of parliament derogatory from the power of subsequent parliaments bind not,” would seem to apply with peculiar force under a free republican government, and to deny the power of a present legislature to extinguish^ impair, or limit the powers of subsequent legislatures. Indeed, the most extravagant exercise of those prerogatives, by a legislature acting under a constitution with or without enumerated powers, might be better maintained by reason and authority, than could any legislative attempt to prohibit a subsequent legislature in any respect from their exercise.

The government of this state, under the constitution of 1802, was not, it is true, one of enumerated powers ; yet the powers of gov-.-eminent under that instrument were, in fact, although- not in degree, as absolutely limited as they are under our present constitu-r tion. The-constitution of 1802, vested the legislative authority of the state in a general assembly, subject only to certain limitations ■contained in other provisions of the instrument. Independent of the limitations expressed in the instrument, it is to be remarked that the constitution only assumed to ^confer upon the gen■eral assembly one of the three powers of government, to wit, the ■-legislative authority; and this being expressed, excludes the idea of either the judicial or executive powers being conferred upon that ■body. It was thus only the legislative authority of the state under the limitations of the constitution of the United States and the sub•sequent limitations contained in the instrument, which was thereby ■conferred upon the general' assembly by the people of the state.

The purposes and permanency of the exercise of the legislative ^powers conferred upon the general assembly, as expressed by the instrument, constituted further limitations upon the powers of that body.

As to the purpose of the grant, it is clearly expressed by the term. legislative authority.” It was only adequate authority for the purpose of enacting the necessary and proper laws for the government of the people of the state, which was so vested in the general .assembly. It was only for the purpose of legislation, not for the purpose of negotiation, nor of adjudication, nor for any executive administration.

The permanency of the existence and exercise of the legislative authority so conferred, as clearly indicated by the instrument, constituted a further limitation upon the powers of the legislature under the constitution of 1802. The following is the language of the grant: The legislative authority of this state shall be vested in a general assembly which shall consist of a senate and house of representatives, both to be elected by the people.” The instrument also provided that the representatives should be chosen annually, and the senators biennially thereafter, making continuous and permanent the grantee or repository of the legislative authority so granted. It can not, therefore, be said that the constitution of 1802, by its language did not in fact grant as full and absolute legislative authority to the general assembly last elected, as to the one first elected under that instrument. Each successive general assembly,- from the time of the first organization of that body, derived its legislative authority under that constitution immediately from the same source of sovereignty, the people; and not mediately through any '^preceding legislature. Each succeeding general assembly in session, like the first, had only to look to the language of the constitution as the chart and limit of its powers, and not to the acts of preceding legislatures, to ascertain to what extent their legislative authority had become extinguished.

Upon this point, it might indeed seem sufficient to say that while authority to legislate is by the constitution expressly given to a general assembly to be elected from time to time continuously, to be -,used, no authority is given to any session of that body to extinguish or inhibit that legislative power as to any subsequent legislature. That no such power has in fact been given, should be conclusive against its attempted exercise. But the constitution of 1802 expressly declares, that to guard against the transgression of the high powers thereby delegated, all powers not therebg delegated remain-with the people.

It would seem, therefore, to follow, incontrovertibly, that no legislature under the constitution of 1802, had the power to inhibit any subsequent legislature from the exercise of the right of eminent domain, or taxation for revenue purposes, upon any kind of private-property within the state, belonging to its citizens.

If this proposition be incorrect, its converse must necessarily be true; and it would then follow that one legislature had the right to-exempt certain kinds of private property within the state from taxation. But who shall determine what kind of property and what amount shall be so exempt ? Obviously the legislature itself must, decide. If then it chance that an existing legislature deem it expedient to exempt all property vested in, and produced by the manufactories of the state for the next twenty years from taxation, the-exemption would be binding on the subsequent legislatures. And if the next legislature, in its like discretion, should deem it expedient, and proceed to pass a law exempting the capital and products-of agricultural pursuits from taxation for a like term, that exemption too would be obligatory upon subsequent legislatures. In like manner succeeding legislatures, in the exercise of the same power, if in fact possessed by that body, might in their discretion exempt from ^taxation all property invested in mercantile, banking, and brokers’ business — and in short every species of private property might thus, under the exercise of such power, become legally exempt from taxation. All the means of revenue would be thus1 utterly cut off, the operations of government paralyzed, and its existence extinguished.

The same reasoning applies with equal force against any attempted limitation or restriction upon the powers of subsequent-legislatures to exercise the right of taxation and of eminent domain, as necessary incidents of sovereignty, according to the public exigencies. Any limitation, or impairing of the powers of subsequent legislatures is so far forth destructive of the governmental powers;- and such example might, if the power were conceded, be follqwed by succeeding legislatures, and the operations of government thereby would, though less suddenly, none the less certainly, become terminated. .

A concession to any legislature of power to limit or inhibit the-exercise by any subsequent legislature of the legislative authority to any extent, is in effect acknowledging the absolute sovereignty of the legislature to which such concession is made, and is a virtual surrender of the right of self-government. It is conceding to the legislature constituted to exercise and perpetuate legislative authority for the preservation and prosperity of government, the right to-terminate and destroy both.

Independent of any constitutional limitations, there could be no-implied grant to governmental agencies, of any but necessary powers for governmental purposes. Such limitation would justify the needful use of the right of eminent domain and the right1 of taxation ; but it would forbid any attempted enlargement or restriction of either of those prerogatives. Their use or exercise would be justified because necessary for the perpetuity and prosperity of government, and their enlargement or restriction forbidden because unnecessaryr without even implied authority,' and tending to the destruction of government.

All experience has shown that authority is ever liable to abuse and this is even true of delegated, as well as of- usurped authority. *Hence the necessity of a constitutional division and limitation of governmental powers to the different departments, in order to constitute and preserve a free government. The constitution of 1802, clearly asserted the doctrine, that the sovereignty of the state was in the people, and only derived from them as its source by the-different departments of government, through that instrument, for the purposes and under the limitations therein expressed. The objects and purposes of that constitution, as well as its. provisions, show that the division, grant, and limitation of powers to each of the departments were made by the instrument, and to be continuous as made, and co-extensive with the constitution in duration. The general assembly, therefore, in my opinion, neither by the letter nor spirit of the constitution of 1802, derived any authority to enlarge or in any respect extinguish or limit the right of taxation, or any other power delegated by the instrument of the legislature, or either of the other departments of government.

Entertaining these views, I am clearly of the opinion that no legislature, under the constitution of 1802, had power to inhibit or restrict any subsequent legislature in the exercise of the right of taxation to the full extent given by that instrument. And if section 60 of the act of February 24,1845, were intended as such restriction, the same would, in my opinion, for want of power in the legislature for such purpose, necessarily be utterly nugatory and inoperative as a restriction upon the exercise of the right of taxation by subsequent legislatures.

But independent of the considerations submitted, and without resting our conclusions in this case upon the want of power in preceding legislatures to make the prohibition, let us proceed to the second inquiry:

Was the legislature in fact, at the time of passing the tax law of March 21,1851, inhibited from passing the same?

The power to pass such a law, as we have seen, was given by the constitution to each successive legislature, to be used respectively in' their discretion to meet the exigencies of government. If in 1851 that power had been taken away from that body, inasmuch as *the power had not been revoked in the usual manner, by an amendment of the constitution, it must have been taken in an unusual manner. And such is the claim. It is said that the power to enact the tax law of March 21, 1851, was taken away from succeeding legislatures by section 60 of the act of February 24, 1845. It must, however, in candor'be conceded, from the fact and purposes of this power having been by the constitution vested in the general assembly, that the legal and rational presumption is that the power still remained as delegated, in that department of government. And every presumption in law and reason is against the idea of the power so vested having been extinguished or restricted by statute. These presumptions then, let it be remembered, apply at every stage of the argument against the proposition that section 60 was designed to be, or in fact was, a restriction of the right of taxation, and imperatively demand a construction of that section, if. susceptible of such an one, utterly irrestfictive of the right of taxation by subsequent legislatures.

It is not pretended that the language of section 60 is a mandatory restriction of the right of taxation in subsequent legislatures; but it is insisted that the section is to be regarded as a contract, and in its effect and operation necessarily restrictive so far forth of the power of the general assembly to exercise the right of taxation.

Is this the true and only reasonable construction of that section? If so, and not otherwise, such a construction must be adopted.

It is, then, incumbent on the plaintiff claiming the benefit of an exemption from the common duty of taxation, to which all are by the general rule subject, to show the validity of such claim beyond any reasonable doubt; and this would be so even if the claim of exemption depended upon the language of section 60, and the intention, independent of the power of the legislature. If it still remained doubtful whether that section of the act should be regarded as a surrender by the legislature of the right to amend the rule of taxation thereby expressed, for a two-fold reason the state has the right to have that doubt resolved in her favor. In *the first place, it is a rule of common law “ that when a charter may be taken to two intents, each of which are good and effectual, it should be taken to such intent as most beneficial to the king ” — to the state. Vinton’s Abridgment, Prerogative. See also Stourbridge Canal v. Wheeley, 2 Barn. & Adol. 792. So in this case, if by a particular construction section 60 may be regarded as amounting to a contract, and by another construction as only an enunciation of a present mode and measure of taxing the banks, the rule of common law would require the latter construction. But a surrender of the right of amendment of section 60, as claimed by plaintiff, is not only, as we have seen, the surrender of a necessary prerogative of government by the legislature without constitutional authority given that body to make it, but without any consideration or equivalent for such surrender. Every presumption -and doubt is therefore for these reasons also to be held against such intention and action on the part of the legislature.

Let us then proceed to inquire whether section 60 of the act of February 24,1845, is a compact between the plaintiff and the state.

A contract is, as defined by Sir William Blackstone, and as usually understood, “ an agreement,.upon sufficient consideration, to do ■or not to do a particular thing.”

The following are the provisions of that, section; “Each banking company organized under this act, or accepting thereof, and complying with its provisions, shall semi-annually, on the days designated in the 59th section for declaring dividends, set off to the state ■six per centum of the profits, deducting therefrom the expenses .and ascertained losses of the company, for the six months next preceding ; which sum or amount so set off shall be in lieu of all taxes to which such company, or the stockholders thereof, on account of ■stock owned therein, would otherwise be subject; and the cashier ■shall, within ten days thereafter, inform the auditor of state of the .amount so set off, and shall pay the same to the treasurer of state ■on the order of said auditor; but in computing the profits of the ■company for the purposes aforesaid, the interest received on the certificates of the funded debt of this state held *by the company, or deposited with, and transferred to the treasurer of state, •or to the board of control by such company, shall not be taken into .account.”

Is the foregoing section a contract within the meaning of the constitution of the United States and the constitution of this state?

The 10th section of the 1st article of the constitution of the United ¡States provides that “ no state shall pass any law impairing the obligation of contracts; ” and the 16th section of article 8 of the con■stitution of Ohio (1802), provides that “no ex post facto law, or law impairing the validity of contracts, shall ever be made.”

If, therefore, section 60 be a contract binding the state to impose no other tax than the one therein expressed upon the bank, the tax law of March 21, 1851, would be obviously in conflict with the provisions of the constitution referred to.

In the case of Fletcher v. Peck, 6 Cranch, 135, Chief Justice Marshall defines the term contract, as used in the constitution of the United States, in the following language:

“A contract is a compact between two or more persons, and is ■cither- executory or executed. An executory contract is one in which a party binds himself to do or not to do a particular thing. A contract executed is one in which the object of the contract is performed; ‘ and this,’ says Blackstone, ‘ differs in nothing from a grant.’ ”

If, then, section 60 be a contract, it is an executory contract, a compact or mutual agreement between these two artificial persons, the state and the bank. And this contract, if it be one, must possess the requisites of all contracts to render it obligatory. There must be: 1. Parties capable to contract; 2. A legal subject-matter of contract; 3. A sufficient consideration; and, 4. Sufficient and apt words to express the terms of the contract, and to render the same obligatory upon both parties.

Does section 60 possess these several requisites, indispensable to constitute a valid contract? There are, it is true, the neeessary parties; and perhaps capable to contract; but, to say nothing of the legality of the subject-matter — exemption from taxation *to be contracted for, there seems utterly wanting every other requisite of a valid contract.

1. As to the consideration. It is not pretended that the company paid the state any bonus for its franchise; nor that exemption from taxation constitutes any necessary part or incident of the franchise of an incorporated banking company. Nor is the company bound to exercise its franchise or to declare any dividend of profits. It may, from time to time, invest the entire proceeds of the business in state stocks, “ certificates of the funded debt of this state,” dividing only the interest thereof during the continuance of their business; and which, by the terms of the law, is excluded from the estimate of profits.

Thus the bank, with a large capital and doing a lucrative business, might not pay, nor the state receive, any tax whatsoever. And if such a right of exemption should be denied, the only redress for the state, or penalty to the bank, would be, that after a tedious litigation the franchise of the bank might possibly be adjudged forfeited. There is then no consideration, not even that of mutual promises or mutual obligation between the parties.

2. There are no apt and sufficient words used making definite the terms of any contract, and imposing obligations upon both parties respectively to each other. No obligation is thereby imposed upon the banking company to either commence or continue business at or for any definite time.

Again, it may be remarked that neither the legislature nor the banking companies, after the passage of the act of February 24, 1845, seemed to regard or construe the act to be a contract.

The next legislature that convened passed the act of January 6, '1846, amending the 5th section of the law, and to take effect upon, a majority of the board of control filing their assent to the amendment. And yet the amendment only affected the banking compianies respectively, and in no manner the board of control. If section five was then to be regarded as a contract, the board of' control was in fact no more a party to that contract than was the-board of county commissioners. Other amendments of the law of' 1845 have also, since its enactment, been, made by the legislature ^inconsistent with the idea of the law being regarded as a contract. See the amendments of March 12, 1845; January 22,. 1846 ; March 8, 1850, and March 19, 1850.

It appears, therefore', from, the long received general understanding and acceptation of the term contract, and the construction given by successive legislatures to the act, and accepted by the banks orr ganized under it, that section sixty of the act to incorporate the-State Bank of Ohio, etc., passed February 24, 1845, is not a contract. It does not possess the indispensable requisites to constitute a contract.

It is, however, suggested that, even if it be conceded that this* act of the legislature is not a contract in the common acceptation of the term, section sixty of the act may be regarded as a law in the nature of a contract — a law so like a contract as to be protected against repeal or amendment by the constitutional provision inhibiting the legislature from passing any law impairing the obligation of a contract. To this it might be sufficient to reply, that if the law be only in the nature of a contract, like a contract, the-maxim “ nullum simile est idem ” would aj3ply. If only like,'it is not the same; and so not included within the constitutional prohibition.

But it may certainly be doubted whether either the constitution of this state, or that of the United States, ever contemplated any statutory enactment being included by the term contract, jn the prohibition contained in those instruments against passing any law invalidating a contract. In my judgment, however, it is not doubtful, but certain that those prohibitions were neither of them ever designed, nor should they be understood, to include in the term contract a statute passed by the state for revenue purposes, so as to preclude the legislature from revising, repealing, or amending the same to meet the exigencies of the state government. And this too, whether such revenue statute consists of an entire act devoted to the subject of revenue, or of a single section, like that of' section sixty under consideration.

Nor do the foregoing views at all conflict with the idea of' vested rights under statutory provisions. Eights becoming vested, under a statute while in force, are not impaired by its appeal.. *When vested and fully acquired, such rights are to be regarded as executed contracts, differing in no material respect from grants. As in the present case, so long as section 60 remained in force, and the banks paid their tax under that section, they thereby acquired the benefit of its provisions, and could not be subjected to any further liability to a tax for the time past, if the section had been, immediately after such payment, rejoealed. Yet such right of exemption under the law for time future, depending upon the law and the payment according to its provisions, not yet having become vested, would necessarily terminate with the repeal of the section or its amendment, as by the law of March 21, 1851. So of all rights vested under a statute, it is a general rule, that the statute-may be repealed or amended; and by a like general rule, all rights vested or acquired under the statute while in force, remain unimpaired by such repeal. Thus, in the case of Fletcher v. Peck, 6 Cranch, 135, C. J. Marshall remarks: The,, principle asserted, is,, that one legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature can not. abridge the power of a succeeding legislature.” The correctness of this principle, so far as respects general legislation, can never be-controverted. “ But if an act be done under a law, a succeeding legislature can not undo it. . . Where, then, a law is in the natirre of a contract, where absolute rights have vested under that contract, a repeal of that law can not divest those rights.”

It has also been suggested that the act of February 24,1845, may at least be regarded as a proposition, on the part of the state, inviting organization under the law ; and'-being followed by the provision, that such sum or amount to set-off shall be in lieu of all taxes to which such company, or the stockholders thereof, on account of stock owned therein, would otherwise be subject,” it is insisted that upon the organization of the company the provision ought to become obligatory upon the state.

To this view of the case there are two answers. In-the first, place, the language of the act does not admit of its being regarded as a proposition inviting organization. Arid secondly, if otherwise, *the company has never so accepted the proposition as to be bound to the performance for any definite time in future.

If the act be regarded as a proposition for an exemption from taxation, the important inquiry at once arises — for what length of time is the exemption to continue? and by the supply of what words is the answer to be expressed? Shall it be the words, “ during the continuance of the organization of the company,” or, by the words, “ so long as said company shall continue to set off and pay to the state said six per centum on her profitsor, shall the uniform understanding under all other tax laws obtain under this; and the answer be supplied by these words, “ until otherwise provided hy law ?”

Even conceding the unreasonable proposition, that the entire act of February 24, 1845, should be regarded as a charter, it would not follow that the mode and measure of taxation expressed by section 60, could not be changed. Charters are to be expounded as the law was understood when the charter was granted.” 2 Inst. 282. And the history, situation, and past legislation of a state may be resorted to, in order to expound its legislative intention. Preston v. Boude, 1 Wheat. 115; Charles River Bridge v. Warren Bridge, 11 Pet. 420. The effect of the act of March 7,1842, providing expressly for the future amendment or repeal, therefore, necessarily had the same effect as if its provisions constituted one section, of the charter.

And if it could be shown (as we think it can not) that the tax ■law of March 21, 1851, divested a vested right of the bank to taxation only under the provisions of section 60, during its continued ■organization and future operations, unless the right so claimed rested in contract, the act of March 21,1851, would still be obligatory upon the bank. In pronouncing the opinion of the court in the case of Charles River Bridge v. Warren Bridge, 11 Pet. 539, C. ,J. Taney says: “ It is well settled by the decisions of this court that a state law may be retrospective in its character, and may divest vested rights, and yet not violate the constitution of the United States, unless it also impairs the validity of a contract.”

To the same effect are opinions expressed *in the case of Satterlee v. Matthewson, 3 Pet. 413, and in the case of Watson and others v. Mercer, 8 Pet. 110. Nor can the contract so alleged to be impaired by a statute, ever be sustained by implication. See United States v. Arredondo, 6 Pet. 738, and the cases there fully collected.

The plaintiff can not, therefore, rest a claim of exemption from taxation under the law of March 21,1851, upon a mere vested right-derived by the bank under section 60 of the act of 1845. The -claim of the bank to a continuance in future of the privileges conferred by section 60, after the passage of the tax law of March 21, 1851, if valid, must rest solely in contract. It must be maintained 'by the plaintiff, over the act of March 7, 1842, and all the other objections suggested to such a construction, that section 60 was and is a valid contract, obligatory upon the state, restraining the legislature from imposing any other tax upon the bank. And this character for the law of 1845, can only be made out, as it seems to me, from ingenious and illogical reasoning, instead of a plain reading of the several acts of the legislature under consideration.

There remains a still further objection to the construction insisted upon, on the part of the plaintiff. If by any reasoning section 60 of the general banking law of 1845, can be considered a contract, precluding the state from varying the mode and measure of taxing the banks thereby expressed, by analogy of reasoning it would seem inevitably to follow that there must be other exemptions. This rule of construction, once established, would be insisted upon, and seems equally applicable under other statutes. Taxes assessed upon lands within the state at the time of their purchase, especially upon the lands sold by the state, could not, for the same reason, be varied or increased by the legislature.

Let us illustrate the correctness of this proposition by its application to preceding acts of legislation in this state.

On the 27th of January, 1806, the legislature passed a law providing that all lands of individuals should be subject to tax as follows : That the lands should be rated according to their value *in a state of nature, into three classes; that lands of the first class should be taxed at the rate of ninety cents, the second class at sixty-five cents, and the third rate at forty cents per hundred acres. After enacting this law, and while it was in full force, the legislature passed another law authorizing certain lands belonging to the state to be sold at public auction to the highest bidder, at not less than two dollars per acre. Notice of the sale of these lands was required by the law to be given as well in certain newspapers of adjoining states as in this state, in order to invite competition. Now upon the day of sale was it not as reasonable to suppose that the farmer who had come from another state to invest. his capital in the purchase of unimproved lands, to be cultivated and rendered valuable, and thereby to increase as well that of the state, as his own wealth, would not look to the probable amount of tax to be paid to the state on the land, as well as the purchase money to be paid to the state for the land ?

The only difference observable between these laws relating to the farming interests, and those under consideration relating to the banking interests, is certainly in favor of the former, if natural persons are entitled to the same respect as artificial persons under our government. The reasons to be rendered are in favor of the farmers’ tax law, in the case proposed, not being increased, when compared with those urged against an increase of the tax upon the banking interests. The state received a stipulated consideration, not less than two dollars per acre for the land, from the purchaser, and a tax of perhaps ninety cents per hundred acres to bo certainly paid, under such purchase, in all time future, and also the consequent necessary increase of the strength and wealth of the state* by the settlement, cultivation, and improvement of the lands so-purchased.

The banking companies paid no consideration, and in their contemplated operations promised no such prospective advantages to the state as did the farmers. Why, then, might not the farmer, who, accepting the published invitation of the state, had complied with the proposition so advertised, and purchased and paid for his farm — why might he not object to an increase of the tax *after improving his lands, beyond that imposed by the existing law under which he had so purchased.

But it has never been pretended or claimed by the purchasers of lands under such circumstances, that the mode and measure of taxing the lands so purchased could not be varied and increased by future legislation. The legislature has exercised this right, repealed the tax law imposing only from forty to ninety cents per hundred acres, and in some cases has increased the tax upon the lands a hundred fold. And this action of the legislature has boon cheerfully and unanimously acquiesced in by those affected thereby.

Neither the language of section 60 of the general banking law, nor of any other section in that act, expresses any intention of the legislature to prohibit future legislatures from amending or varying the mode and measure of taxing the banks. And such intention can never be presumed.

But if there could otherwise be infex*red any doubt as to the understanding and intention of the legislature that section 60 was in fact subject to future amendment like other tax laws, that doxxbt would seem to be dissipated by another statute already referred to. At the time of the passage of the genox’al bapking law of February 24, 1845, the statute of March 7, 1842, was in full force, providing that all subsequent corporations, whether possessing banking powers or not, were to hold their charters subject to alteration, suspension, and repeal, in the discretion of the legislature. See 40 Ohio L. 70.

It appears, therefore, that when the legislature enacted section 60, instead of thereby intending an unalterable contract, they enacted that section under an existing statute law authorizing any subsequent legislature to correct the rule of taxation thereby established ; to modify and reduce the tax thereby imposed, if found too high, or to increase the tax if too low.

Unless, therefore, legislators are exceptions to the general maxim, that “ all men ax’e presumed to know the law,” it follows that the legislature, at the time of enacting section 60, had certain knowledge that the same was, like other laws, sxxbject to revision and ^amendment by futxxre legislatures. It is evident, thexx, that when the act of February 24, 1845, called the general banking law, was enacted, section 60, prescribing the mode and measure of taxing banks organized under that law, was not a contract, but a simple legislative enactment, susceptible of amendment or repeal,’ like all other tax laws.

It is therefore certain, if section 60,'at the time of the enactment of the tax law of March 21,1851, was a contract on the part of the state, so as to preclude further legislation upon the same subject, invalidating section 60, it must have changed from an amendable and repealable statute into a contract, at some time subsequexxt to its enactment, and previous to the passage of the law of March 21, 1851.

At what time, and by what agency, then, was section 60 of the general banking law of 1845 changed from its admitted character of an amendable and repealable law when enacted, into a contract obligatory upon the state, in March, 1851, so as to then be, like the .laws of the Medes and Persians, unchangeable ? It appeax’s, therefore, evident, both from the language used, and the provisions contained in the act of February 24,1845, and also from the fact of the-statute of March 7, 1842, authorizing its future amendment or repeal, .that the legislature, at the time of enacting the banking law of 1845, did not regard section 60 of the act as a contract; but supposed the same amendable by subsequent legislatures, like other tax laws.

It is not, perhaps, material whether the banking companies, organizing under that act, did or did not regard any of the sections of the act as amendable. But if the companies organizing and commencing operations under the act, gave the matter any attention, it would seem that they must necessarily have regarded section 60 of the- act as amendable, for the following reasons, among others:

1. Independent of the consideration of want of power in the legislature to inhibit a future amendment of a revenue law, there had been upon the statute book, ever since the session of 1841-1842 of the legislature, a statute providing “ that the charter of every corporation, of every description, whether possessing ^banking powers or not, that [should thereafter] be granted by the legislature-should], be subject to alteration, suspension, or repeal.” And this act was not repealed until March 12, 1845.

2. The provisions of the act itself indicated no more intention of perpetuity of the particular mode and measure of taxation, expressed by section 60, than previous laws imposing taxes upon different classes of persons and property, and which had all been ’subject to repeal or amendment, in the discretion of future legislatures.

3. Those organizing under the provisions of the act of February 24, 1845, knew that they had paid the state no bonus, no consideration, for the mode and measure of taxation imposed by section 60, and therefore must have supposed it expressive of a rule which was intended to impose a just and equal tax upon the property to be invested in banking; and subject to any proper correction by future legislatures.

But the act of February 24, 1845, now under consideration, has already received the construction of this court. That act, for the first time, came before this court, for a judicial construction, at the January term, 1853. By the unanimous opinion of all the members of the court, section 60 of the act was then held to be no contract, but a statutory law, subject to amendment or repeal, like other statutory tax laws, which have been from time to time enacted and. amended, or repealed, in the discretion of successive legislatures.

This court has, subsequently, had occasion, in quite a number of cases, to give a construction to that act; and the construction given, by the court has uniformly been the same.

It is true, some of these cases have been taken before the Supreme Court of the United States for revision; and a bare majority of the members of that court gave a different construction to the statutes of this state from that given by the undivided opinion of this court.

In pronouncing the opinion upon the construction of the statute, in one of those cases, C. J. Taney says: “ It is true that this court always follows the decisions of the state courts in the construction of their own constitution and laws. Butwhere those ^decisions are in conflict, this court must determine between them.”

Mr. Justice Catron states the rule in even stronger language. Speaking of the construction given by this court to our statutes and the constitution of this state, he says: “ It must be conceded, as I think, that the Supreme Court of Ohio has the uncontrollable right to declare what that meaning is; and that this court has just, as little right to question that construction, as the Supreme Court of Ohio has to question our construction of the constitution of the United States.”

But even if we concede all that is claimed by the distinguished Chief Justice, that where the decisions of the state court upon the construction of the laws of the state, relating to its own domestic police, ate in conflict, that court should dictate a construction; we, do not recognize this as such a case. ¥e are not aware that the statutes under consideration ever came before the Supreme Court of this state for a judicial construction previous to 1853. And all the members of the court were then unanimous in the construction given to these statutes; and from that construction this court has never departed. We do not, therefore, in view of the rules held by that eminent court in such cases, with all the respect and deference entertained toward the opinion of the majority of that court, feel at liberty to depart from our own settled convictions of the correctness of the construction heretofore uniformly given to the statutes under consideration by this court.

Judgment must therefore be entered for the defendant.

Bartley, C. J.

I concur in the views so well and forcibly expressed in the opinion just announced. And for further and additional reasons for my concurrence in the judgment in this case, I refer to my opinions in the following cases, to wit: Toledo Bank v. Bond et al., 1 Ohio St. 622; Milan & Richland Plank-road Co. v. Husted, 3 Id. 578; and Matheny et al. v. Golden, 5 Id. 375.

Brinkerhoff, J.,

concurring. The plaintiff claims to be lawfully exempt from any other or further tax than that of six per *cent. of her net profits, as named in the 60th section of the act of February 24, 1845, “to incorporate the State Bank of Ohio and other banking companies,” all subsequent legislation on the subject to the contrary notwithstanding. Is she entitled to such exemption? This is the question of the case, and depends, in my mind, solely on the solution to be given to this subordinate question — to wit, does the said 60th section, taken in connection with the fact that the plaintiff has been duly organized and gone into operation under the act aforesaid, constitute a contract for the exemption claimed, or not ? If it does constitute such contract, then the plaintiff is entitled to the exemption which she claims: for I admit the power of a state, in the absence of constitutional restriction, and through the medium of a legislative act, to contract for the exemption, for any period, of any given property, person, or thing from taxation; and such contract, when made, is binding on the state, and ought to be enforced by all courts having jurisdiction of the question. - Matheny v. Golden, 5 Ohio St. 361. If said 60th section does not constitute such contract, then there was no constitutional obstacle to the alteration, amendment, or repeal of the legislation contained in that section, and subsequent legislation, imposing an additional, but more equal, and therefore more equitable, rate of taxation upon capital employed in banking, is of valid obligation.

Said 60th section (Swan’s Rev. Stat. 99) is as follows:

“ Each banking company organized under this act, or accepting thereof and complying with its provisions, shall semi-annually, on the days designated in the 59th section for declaring dividends, set off to the state six per centum on the profits, deducting therefrom the expenses and ascertained losses of the company, for the six months next preceding; which sum or amount so set off shall be in lieu of all taxes to which such company, or the stockholders thereof, on account of stock owned therein, would otherwise be subject; and the cashier shall, within ten days thereafter, inform the auditor of state of the amount so set off, and shall pay the same to the treasurer of state, on the order of said auditor; but in computing the profits of the company, for the purposes aforesaid, the interest received on the certificates of the funded debt of this state, held by the company, or deposited with and transferred to the treasurer of. state, or to the board of control, by such company, shall not bo taken into the account.”

*Is this a contract for the exception claimed for the twenty years to which the operation of the act is limited?

In considering this question it is important to remark in the outset, that however great may be the differences of opinion which •have arisen among jurists and statesmen on the general subject of legislative contracts, through the medium of charters and acts of incorporation, there is one rule, fundamental and-vital in this discussion, in reference to which there is no difference of opinion, or, at all events, so far as I know, no difference of authority; and that is, that where an exemption from taxation, in whole or in part, is claimed on the ground of a legislative ■ contract, such contract must he expressly contained in the terms of the act, and will not he presumed. Such claims, being odious and unequal in themselves, in derogation of common right, and of that principle of equality before the law, characteristic of our institutions and of all just governments, are not favored in law, and courts ought not to resort to presumptions to sustain them. Such is the rule, substantially, as laid down by Chief Justice Marshall in Providence Bank v. Billings and Pittman, 4 Pet. 561; by Taney, C. J., in Charles River Bridge v. Warren Bridge, 11 Pet. 420; by Ranney, J., in Debolt v. Ohio Life Ins. and Trust Co., 1 Ohio St. 573. It is in the light of this rule — a rule sanctioned by the highest and most venerated authority, and the wisdom and justice of which commend it to my reason and conscience — that I look at this statute; and, excluding all assumptions and presumptions, inquire whether the contract for the exemption claimed, is to be found in express terms embodied therein?

Looking at the section of the act above quoted in this light, I confess my inability to find there any such contract.

In rhe first place, its language is not the language of contract,, but the language of ordinary legislative enactment. There is nothing to indicate that anything out of the ordinary current of legislation was intended. There is nothing said about contracts, agreements, bond, or obligation; and no phraseology such as men and states ordinarily employ, when they aim to give expression in langnageto a contract obligation; and to me it seems strange that an ^intelligent legislative body should have left a matter of such momentous interest to remote inference or conjecture, when the use. of the most familiar terms usually employed in the making of contracts would have placed the matter beyond all doubt.

In the second place, I find no consideration for such, or for any contract. None whatever is expressed ; and if we were at liberty to resort to implication, I should not know where to look for an implied consideration. The bank or banks organized under the act named, give no bonus to the treasury of the state, nor to^ the promotion of any object of state policy, for the privileges and exemptions which the act of incorporation confers, and which might constitute a good-consideration for any stipulated exemptions. On all this subject the act is silent. And if we were to inquire for an implied consideration, I repeat, I do not know where we should look for it. Capitalists who embark in banking under this act sacrifice nothing to the state. They give nothing to, and they do nothing for the state. The act is, from beginning to end, a grant, on the part of the state, of extraordinary powers and privileges, not possessed by other citizens, to those who shall embark in the business of banking under it, and this, without stipulating for the doing for, or giving to, the state anything in return, from which a good legal consideration can be fairly implied. These powers and privileges are, it is true, limited and restricted in many important particulars. But it will hardly be contended that a limitation upon what is of itself purely a gratuitous grant of extraordinary privilege, is a legal consideration for such grant, and that a matter of mere grace can thus be transformed into one of binding obligation. Nor can any consideration be inferred .from any mutuality of obligation. No man or set of men is, by the provisions of this act, placed under any obligation to enter upon the business of banking under it, or, having entered, to continue it. The bank which might be organized under the act one day, was free to abandon its corporate existence, and discontinue its business the next.

It seems to me, therefore, that unless I am in error in supposing that a consideration of some kind is essential to the existence of *a valid contract, here is no contract either expressed or implied.

In the third place, the act fixes no time during which the six per centum of net profits shall be in lieu of all other taxes to which such company would otherwise be subject. The plaintiff claims' that this rate of taxation shall not be exceeded during the whole twenty years to which the operation of the act was, by its terms, limited. I find no express stipulation to that effect in this sixtieth-section. Presumptions are excluded by the rule of construction-before mentioned; and therefore I look at this language in the same light as if it were employed in reference to the taxation of any other species of property belonging to individuals. And can any one doubt, that, if a legislative act, on the subject of taxation, and under the constitution of 1802, had used identical language in-respect to horses, or farms, or merchandise, and had declared generally that they should pay six per centum upon their profits, “ in lieu of all other taxes,” naming no time during which this rate and' rule of taxation, should continue, it would have been competent for any subsequent legislature to prescribe another and different rate and rule? Under that constitution, as matter of fact, the rule and rate of taxation, on different kinds of property and business, was-frequently and constantly changed from time to time, and no one-thought of questioning the validity of such changes, although particular property may have been acquired, and particular branches of business may have been undertaken under the belief that the then-existing rate and rule of taxation would be adhered to in the future. However greatly individuals, under such circumstances, may have been disappointed in their hopes, there being no contract in the case, they were left to continue or discontinue the ownership of property or the prosecution of their business, under the altered circumstances, as they might suppose to be to their advantage.

Had this act of the general assembly declared in express terms, in the following, or any other equivalent language, “that, in consideration of a bonus of one per centum upon its capital stock, to be-paid into the treasury of the state by any banking company to be organized under this act, no more than six centum upon the net profits of any such company shall be levied or collected as taxes on such company in any one year for the term of twenty years,” the question before us would be very different. Bo, if' any extraordinary services were exacted from these companies, not due-as matter of common duty from citizens at large. But, being unable to find any consideration for the contract of exemption claimed, and no stipulation for the continuance of such exemption, I fail to find the essential elements of an express legal contract, and am therefore compelled to concur with the majority of the court in the conclusion to which they have arrived.

I am aware that the Supreme Court of the United States have decided the question here pending, adverse to the views I have expressed. In those cases I have bowed in submission to the mandates of that court, and have concurred in ordering them to be entered on our journals. . But these decisions are understood to have been made by a bare majority of that court; and, as its reasoning has failed to satisfy my judgment, I am desirous that it should have an opportunity to reconsider them.

J. R. Swan, J.

One of the questions made in this case is, whether the general assembly, who enacted the 60th section of the charter of the State Bank of Ohio, intended that section as a stipulation, fixing, beyond alteration or change, the amount of tax upon the banks. Whether the state can enter into such a stipulation, is not a question discussed in this case, nor does it arise in the opinion of the majority of the court. The sole question here is: Did the general assembly intend this 60th section as such stipulation.

In 1835, the Supreme Court of this state decided the case of The State v. Commercial Bank of Cincinnati, 7 Ohio, 129, 130. The question in that case, and its .determination, is thus stated by the court:

II Th.e clause in the charter which is supposed to exempt the Commercial Bank from the payment of a tax upon its business, similar to that paid by other banks, is that which has been already quoted:

‘ The State of Ohio shall be entitled to receive *four per cent, on all dividends made by said bank.’ Now, let us for a moment examine this subject, considering the charter as a contract, and applying to it the ordinary rules of construing contracts.
“ The general assembly propose to confer upon such persons as .shallbecome stockholders in the bank, certain powers and privileges. They propose to confer upon them all the privileges of banking. But, as these privileges are valuable to the recipients, it seems to be but right and proper that a suitable return should be made for the benefit received. Therefore, the legislature impose upon the corporators, in their corporate capacity, the. condition that they shall pay to the state four per cent, of their dividends,, and they reserve to themselves no right to change these terms. The only consideration required, the only consideration to be paid, is this four per cent. In other words, the general assembly say to such persons as may take the stock, you may enjoy the privileges of banking, if'you will consent to pay to the State of Ohio, for this privilege, four per cent, on your dividends, as they shall from time to time be made. The charter is accepted-, the stock is subscribed, and the corporation pays, oris willing to pay, the consideration stipulated; to wit, the four per cent. Here is a contract, specific in its terms, - easy to he understood. Privileges are proffered for certain and definite considerations to be paid; and those privileges being accepted, the payment of the consideration can be enforced. After a contract similar to this, between individuals, where one undertook to convey any interest to another for a definite consideration, and the conveyance is made and accepted, it will not be pretended that anything more than the definite consideration can be recovered. But a contract between the state and individuals is as obligatory as any other contract. Until a state is lost to all sense of justice and propriety, she will scrupulously abide by her contracts; more scrupulously than she will exact their fulfillment by the opposite contracting party. As here was a contract between the state and the corporators of the Commercial Bank, in their corporate capacity, that the latter should enjoy certain privileges, in consideration of certain payments to be made, any *law requiring the payment of a greater amount, varies this contract and impairs its validity. The tenth section of the first article of the constitution of the United States provides, that no state shall pass any law impairing the obligation of contracts ; and the sixteenth section of the eighth article of the constitution of Ohio, that ‘no ex post facto law, or law impairing the validity of contracts, shall ever be made.’ A law, then, made in express terms, and for the avowed purpose of collecting a greater tax than four per cent, upon its dividends, from the Commercial Bank, would be in contravention of both these constitutions, and could not be enforced, unless we adopt the principle that an unconstitutional legislative enactment is a binding law of the land; unless we adopt the principle that the law-making power is above the constitution under which it acts; unless, in fact, we adopt the principle, that in this country, where we boast of constitutional and limited government,- legislative supremacy is co-extensive with with parliamentary omnipotence.”

Collett, judge, dissented,- but the grounds of his dissent are not •stated.

This decision of the Supreme Court determined and settled, as .fully as the highest judicial tribunal of the state can settle any question within its constitutional jurisdiction, that when the general .assembly provide in a bank charter that “the State of Ohio shall be entitled to receive four per cent, on all dividends made by said bank,” the legitimate interpretation and constructioñ of such language is, that the general assembly intend and do stipulate that the tax so provided for is fixed beyond alteration. '

Whether these terms in the charter were so express and explicit ¡as to justify the construction given them by the court, I do not stop to inquire, for we are now dealing with the simple fact, that the .Supreme Court gave to them, by interpretation and construction, the force and effect of such a stipulation.

This judicial construction was promulgated in 1835; remained, without being questioned or doubted by the Supreme Court, as the law of Ohio, when the general assembly, in 1845, introduced into the charter of the State Bank of Ohio the following section:

*“Each banking company organized under this act, or accepting thereof and complying with its provisions, shall, semiannually, on the days designated in the fifty-ninth section for de•claring dividends, set off to the state six per centum on the profits, •deducting therefrom the expenses and ascertained losses of the company, for the six months next preceding; which sum or amount, so ■set off, shall be in lieu of all taxes to which such company or the stockholders thereof, on account of stock owned therein, would otherwise be subject; and the cashier shall, within ten days thereafter, inform the auditor of state of the amount so set off, and shall pay the same to the treasurer of state,” etc.

And now the question is, in view of the previous adjudication of the Supreme Court, whether the general assembly intended that these terms should have the force and effect which'judicial interpretation had given like terms, less express and explicit, and less clearly indicating a stipulation fixing the amount of taxes. The general assembly must bo presumed to know — indeed, no one can deny that they in fact knew — what construction had been given to like but more uncertain terms, by a co-ordinate branch of the gov■ernment, authorized to construe statutes and charters. How, then, ■can any one entertain the remotest doubt that this section was inserted in the charter of the State Bank with an intention that it should have the force and effect which had been given to like language by the Supreme Court?

Whatever opinion this court may entertain of the intention of the general assembly who granted the charter to the Commercial Bank, it seems to me that there can be no doubt of the intention of the general assembly who passed the charter of the State Bank. The first was an open question for judicial determination on the terms of a charter; the second is the grant of a charter based upon that judicial determination. Besides, what is the position of this court now upon this question ?

The highest judicial tribunal of the state, and upon which devolves the power of interpreting statutes and charters, determine and fix, in 1835, the force and effect of certain words in a charter. These words were held to create a specific contract ^between the state and citizens who might become stockholders under the charter. After this determination had been promulgated for ten years, the general assembly adopt like words in a charter, and citizens become •stockholders. The two co-ordinate branches of the government thus .proceed harmoniously, the one first fixing the interpretation, force, and effect of words in a charter, and the other afterward incorporating the like words in charters. And now the same judicial ■department of the government is called upon to say that these same words, which it had before pronounced “a contract, specific in its terms, easy to be understood,” so uncertain in their terms and so difficult to be understood, that, on the whole, the general assembly who used the words in view of previous judicial interpretation, could not have intended them as any stipulation whatever.

A question is made in this case as to the continued operation of the act of March 7, 1842, after its repeal.

The act of March 7,1842 (Curwen, 907), reserved to the general assembly the right to alter or repeal all charters thereafter granted. The chai’ter of the State Bank of Ohio was passed February 24, 1845, and afterward, and at the same session, by act of March 12, 1845, the act of March 7, 1842, was repealed. The act of February 24, 1845, however, for the organization of the State Bank, did not become operative as a charter, or any citizens accept its provisions, or cox’poration exist under it, until after the repeal of the act of March 7,1842. It is insisted that the general assembly, by force of the act thus repealed, can now change and modify the rights of the ■corporators under the charter of the State Bank. On the contrary, it seems to me that the very object, intent, and effect of the repeal of that law by the general assembly, was to divest them of the powers reserved by it.

I do not deem it necessary to discuss the last two propositions of the syllabus, at the head of this case. They are not so definite and limited as to meet my concurrence; and the principles involved in them have not in my opinion any application to the ^present case. I am constrained, therefore, to dissent from all the rulings in this case.

Scott, J., also dissented on the same grounds.


source: Caselaw Access Project

author: Sutliff, J.

license: Public Domain

text:
    John Whetstone and William Price v. James Riley.
    In an action against special bail, judgment was entered against the principal, at the April term, and execution issued thereon, and returned “not found,” and suit commenced against the bail, in which summons was issued returnable on the 10th, and served upon the 3d of September, and duly re-' turned; and September 29th default of bail for answer to petition was entered upon the docket by order of the court, and cause continued to the October term, during which, on the 8th of October, the bail, without showing cause arising previous to their becoming finally charged, obtained leave of court, and surrendered their principal. Held—
    1. That the bail having become finally charged, and their undertaking being no longer conditional, such order of court did not give them legal authority to surrender their principal in discharge of their liability.
    2. That an answer filed by the bail setting forth such surrender of the principal in accordance with the order so made by the court, does not show a legal defense to the action.
    3. That the court refusing to hear proof of such surrender, upon a motion filed with their answer by the bail for exoneration, and overruling the motion, and holding the facts so stated in their answer to be an insufficient defense» and refusing to set aside the default, did not show an improper exercise by the court of its legal discretion.
    In error to the Superior Court of Cincinnati.
    This was an action brought by Riley against Wbetstone and Price on their undertaking as special bail for Newman.

      • The petition Was filed in the Superior Court of Cincinnati, August. 31,1855, and alleged the commencement of the original suit against, Newman, the principal, for $750; his arrest on the ground that he-fraudulently incurred the obligation; the undertaking of the defendants as special bail, dated March 26, 1855; the release of Newman from custody; the judgment against Newman at the April term, 1855, of the Superior Court of Cincinnati, *for $750 and costs; an order of arrest to the sheriff of Hamilton county, and a return that the body of Newman was not found, and demanded a. judgment against defendants, as bail.
    The summons was returnable in ten days. Service was made on the 3d of September.
    On the 4th of September, defendants procured a bail-piece, and sent an agent with it, for Newman, to the interior of Maryland,., where he then résided; and, by the quickest mode of conveyance,, brought him to Cincinnati on the 12th of September.
    On the 29th of September, the clerk, by order of court, entered, upon the docket the default of defendants for answer to the petition, and the cause was continued to the next (October) term.. During the October term (October 8th), on motion of the defendants, the court granted the following order:
    “ On motion by the defendant, for an allowance of further time-within which to surrender Edward Newman to the sheriff of the county of Hamilton, in discharge of their undertaking as special bail for said Newman, dated March 26, a. d. 1855, on which undertaking the present suit is founded, and upon affidavits and other-evidence exhibited, and arguments of counsel, the court order that the said defendants, ffm. Price and John Whetstone, be allowed till twelve o’clock at noon, on Wednesday, the 10th day of October,, instant, as further time within which said defendants, as bail, may surrender their principal, the said Edward Newman, to the sheriff of Hamilton county, in discharge of their said undertaking; provided, and it is ordered, that the said defendants shall pay all the-costs which have accrued in the present case, and the jailor’s fees, in committing said Newman to jail.”
    On the 8th of October, the same day the .order was granted, allowing the further time, the defendants surrendered Newman to-the sheriff, with a copy of the undertaking and bail-piece,-and paid costs and jail fees, and Newman was committed to jail.
    The defendants then filed a motion for an exoneration on their-¡undertaking; and also, on the 20th of October, filed their answer to the petition, setting up these proceedings, to wit, the order of «court set out above, allowing further time within which to surrender Newman; his surrender and commitment to jail, and the payment of costs and jail fees.
    No reply or demurrer was filed by the plaintiff to the answer. But the judge, at special term, January 26, 1856, on hearing, ordered *“the case to be certified to the court sitting in general term, for its opinion upon the question, whether the facts set forth in the answer constitute a defense to the plaintiff’s cause of action.”
    The court in general term, on May 10, declared its “ opinion to be, that the facts set forth in the defendants’ answer did not constitute a defense to the plaintiff’s cause of action, and. were not a bar to his right to recover,” and remanded the case to special term, with instructions to proceed in accordance with its opinion.
    A hearing was had at special term, on the petition and answer, as well as on the motion for an exoneration; and on the 30th of May, the court overruled the motion; and “ being of opinion that the facts set forth in the defendants’ answer are not sufficient in law to constitute a defense to the action,” rendered judgment against them for the amount of the original judgment, with interest and -costs.
    This judgment was affirmed by the Superior Court, at general term. And to reverse the judgment of affirmance, the defendants below filed a petition in error in this court.

      Taft & Perry, for plaintiffs in error, argued:
    1. That when the court has ordered the allowance of further time to bail for the surrender of their principal, and the principal has been surrendered agreeably to the terms of the order, it may be pleaded in bar of a recovery against the bail, though -no exon*eretur has been entered on the undertaking. Code, sec. 168; Cooke v. Beale, 1 Wash. (Va.) 405.
    2. That, under the code, the court has power to allow further time to bail within which to surrender their principal, though the application for further time was not made till after the return of the summons in the suit against the bail. Code, sec. 168; N. Y. Code, sec. 191; 7 Cowen, 422; 2 Wend. 251; 1 Johns. Cas. 413; 5 Cow. 25.

      James Riley, defendant in error,
    cited: 1 Marsh. C. P. 166; 16 East, 389; 3 Ib. 145; 1 Taunt. 320; 6 D. & E. *246, 247; Tidd’s Pr., 8 ed.; 4 East, 102, 188; 13 Mass. 93; 4 N. H. 29, 172; 5 Cowen, 25; 1 Duer, 668; Strange, 419, 872, 1270; 6 Taunt. 75; 8 East, 433; 3 Wend. 251, 263; 7 Cowen, 422; 1 Ohio, 35.
   Sutliff, J.

Two questions are urged upon our consideration in "this case:

1. Does the record show error in overruling the motion of plaintiffs for an exonoration ?

2. Does the record show error in the holding of the court, that the matters stated in the answer were insufficient to constitute a -defense ?

Previous to the • adoption of the code of civil procedure in this state, the provisions and practice in relation to the liability of special bail, had been very uniform, and well understood.

Under the statutes of 1816 and 1824, as well as that of 1831, the undertaking and liability of the special bail became absolute upon neglect to surrender the principal after the return “ not found ” upon the capias ad satisfaciendum against him until after the service and return day of process against the bail. The limitation of the time for surrender is substantially the same in the statute of 1831, as in the preceding statutes, and is expressed as follows: “ Provided that such surrender be made at or before the appearance day of the first scire facias against the bail, returned scire feci, or of the second scire facias returned nihil, or of the capias ad respondendum, or summons in an action of debt against the bail on his recognizance returned, ‘served,’ and not after ;” providing that there should be at least fifteen days between the service and return of said writs. During the time so fixed by the statute, the undertaking of the bail remained conditional, and the condition was saved by the statute by a surrender of the principal at any time before or upon the ■ appearance day of the special bail so served with process.

Under the English rule, the bail were held to be legally fixed upon the return of the capias ad satisfaciendum against the judgment defendant, not found. And the right of the special bail to still surrender-the principal at any time before the return of a *seire facias upon them, served, or the return of nihil upon a second scire facias, was regarded by their courts, ex gratia, mere matter of indulgence on the part of the court, beyond the terms of their contract. But this matter of indulgence in their courts became a matter of practice; and matters of practice being of positive regulation, the law became, and has long remained in the English courts established, that the bail might, at any time before the return of a scire facias, capias, or summons upon him as bail, served, or before the return of the second spire facias nihil, surrender the principal, and thereby, on payment of costs, become entitled to an exoneretur upon his bail bond. The bail are, however in England, regarded as legally fixed, and, to some extent, liable upon the return of the 'capias ad satisfaciendum, against the principal, not found. The bail are then, by the terms of their bond, liable; and, in the further time so given by the indulgence of the court, they are, by the rule of practice so established in the English courts, permitted to discharge his liability by the actual surrender of the principal within the further time named. But neither the imprisonment nor death of the principal, after the return of the capias ad satisfaciendum against him not found, will exonerate the bail from their legal liability. And if their principal is not surrendered previous to such suing out and service of process against the special bail, they are then said to be definitively fixed, and their contract to pay the judgment of their principal, before then conditional, is then regarded as absolute.

The statute law of this state, it will be observed, previous to the code, while it closely adheres to the general practice of the English courts in regard to the liabilities of special bail, had alleviated the rule somewhat in their favor. The rule of practice, as established by our statute, extends the legal right of the bail to an exoneration on their undertaking, upon a surrender of their principal, to the time at which, under the English rule, the bail were held to become definitively fixed, in case of a neglect to surrender. And previous to the time so limited by our statute, if the principal should die, although after the return of the capias ad satisfaciendum not found, the bail would thereby become ^exonerated. Bank of Mt. Pleasant v. Administrator of Pollock, 1 Ohio, 35.

The record in this case discloses the facts of the defendants’ liability upon their bail bond having become definitively fixed and absolute, and the default of defendants for answer to the petition, entered upon the docket by the order of the court, and a continuance of the cause until the next term of the court; and that, under these circumstances, during the next, the October term, leave was given by the court for the bail to surrender their principal, and that, in accordance with the order of court, the defendants surrendered the principal, and on the 20th of October filed their answer, setting forth the surrender, while said default remained unvacated, and without leave to answer; and at the same time filed their motion for exoneration.

Without regard to the regularity or irregularity of tho proceedings, does the face of a surrender made under an order of court, under such circumstances, constitute, by the provisions of the code, -a good defense ?

The code provides that the liability of the bail shall be fixed by the return of “not found,” upon an execution against the body of the defendant; following the English practice, rather than that before established by statute in this state in that particular. Section 167 provides that “ for the purpose of surrendering the defendant, the bail, at any time or place before he is finally charged, may him■self arrest him, or by a written authority, indorsed on a certified copy of the undertaking, may empower any person of suitable age .and discretion to do so.” The express provision of the former statute, that the surrender of the principal in discharge of the bail, shall not be after the bail became fixed, has been left to be implied rather than expressed. We think, however, from the express provision that the principal may be arrested by the bail for the purpose of being surrendered, at any time or place before he is finally charged,” it is clearly implied, under this provision of the code, that he can -not be arrested for such surrender, after the bail becomes finally charged. In this case the bail were finally charged, and their liability on their bail bond absolute, on the 8th of October, at the *time the order was made for further time to surrender their principal. The record shows no reason for the motion or for the order. The order was for two days’ time, but the date of the surrender is the same as that of the order; from which it might be inferred that the principal was then in court. There is no more reason shown for an extension of the time two days than for two months. The record does show that after the service of the summons upon the bail, on the 3d of September, the bail proceeded to Maryland, or procured an agent to do so, and brought their principal to Cincinnati on the 12th of September; but if they had the .authority to arrest him upon a bail-piece at that time, after the 3d of September, they likewise had authority to surrender him. This they did not assume to do, nor to make any answer to the petition ,- but suffered their default to be entered in the case; and made no-answer for more than a month after the arrest upon thei.r bail-piece, and return of Newman to Cincinnati. Nor does the record offei explanation for the neglect, on the part of the bail, of any attempt, to surrender the principal from the date of the judgment against him, at the April term, down to the 4th of September, when they sent their agent to Maryland for him.

If it were conceded that the court, on the 8th of October, had the right, in the exercise of their discretion, to grant an extension of time for the surrender of the principal, the motion for entering an exoneration being on hearing, as well as the defense set up by the-answer, it was the duty of the court to look at all the facts and circumstances of the case, in order.to determine the propriety of allowing or disallowing the motion. This the court seems to have done, and exercised their discretion at the May term, 1856, of the-court, by overruling the motion and refusing to set aside the default, and not admitting as a legal defense the matters set up in the-answer. At that term, the court rendered a judgment against the bail for the amount due upon the judgment against Newman, and' for costs of suit. No exception appears to have been taken, nor any bill of exceptions presented or allowed during the term. There-is nothing in the record, in this view of the case, that would authorize us to find that the court did not ^properly exercisers legal discretion in overruling the motion and entering up judgment against the bail at the May term.

But we do not think the court, on the 8th of October, 1855, had-authority, under the circumstances, to allow a surrender of the principal in discharge of the bail. Section 168 of the code, if susceptible of such a construction, should be so construed as to harmonize' with the preceding provisions of the code upon the same subject. We think it very clearly susceptible of such a construction. All the preceding provisions of the code, in accordance with the former-uniform practice of this state, recognize and express the rule, that a surrender of the principal in discharge of the bail, can only be-had previously to the bail becoming definitively fixed. And the lan guage of section 168 is not inconsistent with a continued adherence to that rule. Indeed, the expression relied upon, “ within the time-fixed by section 166, or within such further time as the court in which the action is pending may allow,” can not be regarded as anything more than an implied authority for the court, in a proper case, to enlarge the time, by a special order previous to the bail becoming finally charged, beyond the period fixed by section 166. And a surrender made within the limit of such order, would be as-evidently a surrender previous to the bail becoming finally charged, as would a surrender previous to the return'day of the summons in the action against the bail.

It is true, cases are frequently found in practice, where motions for the relief of bail have been successfully made after the bail has become definitively fixed, but in all of those cases, unless it be an exception to a general rule, it'will be found, I apprehend, that the cause for relief, whether the death, or imprisonment, or bankruptcy of the principal, will be found to have arisen previously to the bail having become finally charged. See the case of Oleott v. Lilly, 4 Johns. 407; also Rathbone v. Warren, Bail, 4 Johns. 309.

Judgment affirmed.

Bartley, C. J., and Swan, Brinkerhoee, and Scott, JJ., concurred.