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gave them.

From the language of this opinion and the long and if it can be prevented no clause or sentence or line of decisions of the same court, it is manifest word shall be superfluous, void or insignificant.” that the decision was made to turn on the question As there is a clear expression of the legislative of the reservation of the right to amend or repeal, intent in the statute no rules are really necessary to etc. In order to hold that the right to alter, etc., aid in its interpretation. the contract made under Article 2 does not exist it It certainly was a very advantageous contract for is absolutely necessary to eliminate Section 6 from them to enter into. When these banks paid more than the article. No such rule for the interpretation of two-thirds of the taxes paid by all the banks with statutes can be found, as the meaning of the section the power in the Legislature to increase the amount is manifest and clear. Besides, by the very terms of if they should so desire, what reason can be sugthe act of 1856 a rule of interpretation is given that gested as to why the Legislature would desire to "all charters and grants of or to corporations or reverse the policy which had been steadfastly adamendments thereof and all other statutes,' shall hered to for so long and enter into an irrevocable be subject to amendment or repeal at the will of the contract with such banks. Why should it want to Legislature, unless a contrary intent be therein surrender a power which it had been so jealous to plainly expressed. It is proposed now by those preserve ? representing the banks to disregard the statutory The contract was made subject to the right of rule of construction. It is now in effect insisted the Jegislature to withdraw from it whenever it that in order to reserve the right claimed it inust be regarded the public interest demanded it should “plainly expressed in the act that it is reserved; do so. this being done it is still disregarded. The Legisla

Whenever the banks accepted the provisions of ture, doubtless anticipating such contention and the act of 1886 they surrendered any rights to imversatility, “plainly expressed' in the article that munity from increased taxation which their charters whatever was done thereunder or in pursuance thereof could only continue during its will." If

The acceptance of the act of 1886 was a consent section 6 was not for this purpose, I would like to

of the repeal of so much of their charters as was have had the court to suggest some reason as to why inconsistent therewith. Hence they stood in such it was placed in the article. The doctrine that when

a relation with the State as to future taxation as it is asserted that a State has bargained away her the Legislature saw proper to impose. If the proright of taxation in a given case, the contract must visions of their charters relating to taxation were be clear and can not be made out by dubious im- repealed, as it must be admitted they were by the plication. New Jersey v. Yard supra. The taxing act of 1886, then such provisions were no longer in power of the State is never presumed to be relin' force. It is unreasonable to say that the provisions quished unless the intention to relinquish is ex- of the charter fixing the rate of taxation on the pressed in clear and unambiguous terms. Bradley banks at fifty cents on each share of the capital stock v. McAtee, 7 Bush, 667. It is a familiar rule of of the banks equal to one hundred dollars can be in construction of statutes that effect must be given to force if the act of 1886 fixing such tax at seventyevery provision except in cases of absolute and five instead of fisty cents on shares in force. The irreconcilable incongruity. Dazey v. Killan, 2 court admits the latter is in force. In doing this it Duval, 407.

must be admitted the charter privilege has been If one statute refers to another for the power repealed. given by the former the statute referred to is to be If repealed then by the act of 1886 surely the considered incorporated in the one making the ref- only way in which the provisions of their charter

Nunes v. Weilisch, 12 Bush. 365. Mr. could be restored would be by the Legislature so Cooley in his work on Taxation (page 204) says: providing in same act. There is no pretense this “As taxation is the rule and exemption the excep

has been done. The fact that the law of 1886 has tion the intention to make an exception ought to be been repealed does not restore the former provisions expressed in clear and unambiguous terms; and it of the charter. Section 464, Kentucky Statutes, cannot be taken to have been intended when the provides: “ When a law which may have repealed language of the statute on which it depends is another shall be repealed the previous law shall not doubtful or uncertain."

be revived unless the law repealing it be passed durFor the interpretation of statutes this court in ing the same session of the General Assembiy." Nichols v. Wells, Sneed 259, said: “That the most It is a most groundless contention to say that natural and genuine way of construing a statute is if the present law is sustained the old banks will to construe one part by another part of the same be restored to the former privileges under their statute; that the words and meaning of one part of charter. a statute do frequently lead to the sense of another; It has been suggested that the provisions of their


charters with reference to taxation were vested the Constitution enacted the law for levying and rights and, although they consented to the legisla-collecting tax from the banks of the State, the tion of 1886 and became subject to the provisions validity of which is in question in these cases. of the act of 1856 still as the charter privilege as to For the reason already given I conclude that the taxation was a vested right, therefore it was saved obligations of no contracts were impaired by the to them by the provision which preserves "other action of the Constitutional Convention or the sucrights previously vested.” The purpose of the act ceeding Legislature. of 1856 was to reserve in the Legislature the power Some of the best lawyers in the State were memto destroy the privileges and franchises granted in bers of the convention which framed our Constituthe charters.

tion, who gave an earnest consideration to the quesIf it does not have this effect it would be entirely tions involved in those cases, and the conclusions inoperative, and the effort to retain control of cor- which they reached were chrystalized into section porations would be abortive. The claim that the 174 of the Constitution. I believe that their conprivileges granted by article 2 can be repealed, but clusions are correct. without the right to terminate the contract with The opinion of the court denies the power is in the banks, is not founded in reason.

the Legislature to say what taxes the banks of the The only privilege which the banks enjoyed was State shall pay for State purposes during the existto pay the seventy-five cents on each share in lieu ence of their several charters. It denies the right of all other taxes.

of the Legislature to compel them to bear any of the To say that the law granting the privilege can be burdens of county and municipal government. repealed because the right to do so was reserved as I cannot believe the Legislature did or intended is admitted by the court and still leave the bank in by article 2, of the act of 1886 to reverse its policy its enjoyment (as is the effect of the opinion of the so earnestly pursued for a generation and surrender court) is to employ lugic that has never been in to sixty odd banks of the State its right previously common use by this or any other court.

reserved to control them in the matter of taxation This logic gives the banks the substance and the and to give up its power to increase or diminish the State the shadow.

taxes imposed on 125 banks, this including the The preserved rights then are not privileges and national banks. franchises granted by the repeal charter, but “other Emergencies may arise requiring the levying and rights” which had rested previous to the act amend-collecting of vast sums to meet the public demand, ing or repealing the charter.

yet however great the emergency may be or imperaOther rights are such as the beneficiaries under tive the demand for money to meet such wants, the charter may have acquired in property, choses the Legislature is powerless to compel the banks to in action, real and personal property or interests of contribute more than they are now paying at any every character which they could acquire in time during their corporative existence. operating under the charter and also such rights or

The counties and municipalities are annually cominterests as other persons may have previously ac

pelled to raise large sums of inoney by taxation. quired by contract, mortgage, judgment or other. The counties of the State are compelled to incur wise in the property belonging to the corporation. large expense to support the county governments, My construction has been recognized as correct

to pay for bridges and public highways and supin all the decisions of this court in passing upon the

port their unfortunate citizens. The municipalities act of 1856. The Supreme Court of the United

must incur great expense in making all necessary States has so construed the act. It was said in

improvements for the comfort, safety and health of Griffin v. Kentucky Insurance Company, 3 Bush,

their citizens, to supply water and lights and to give 594, " the proviso was intended to secure the right police protection to their citizens and to the banks, of beneficiaries and others vested under the charter yet the court concludes that the Legislature has no before its amendment or repeal, and does not affect

power to compel the banks to contribute their fair the mere power to repeal the franchise."

share of such expenses. To the same effect is Cumberland and Ohio Rail

In this view I cannot concur. road Company v. Barren County Court, 10 Bush, 609. Section 174 of the Constitution recognized a just principle when it declared that all property Whether or not an indictment sufficiently charged whether owned by persons or corporations should the crime of murder in the first degree was for the be taxed in proportion to its value unless exempted State court to determine, and the decision will not thereby and that all corporate property should pay be reviewed on habeas corpus in the Federal court. the same rate of taxation paid by individual property. (Bergemann v. Backer [U. S. S. C.], 15 S. C. Rep.

The Legislature in obedience to that provision of | 726.)

New Books and New Editions. and seems most complete in every respect for the

purpose for which it was pubished. Published by CODE AMENDMENTS OF 1895.

Banks & Bros., New York and Albany, price $1.50. This book is one of the most practical that has been published this year, giving as it does two days Abstracts of Recent Decisions. after the governor signed the last law of 1895 all the important changes made in the procedure law of

CRIMINAL LAW-MURDER -PROOF OF MOTIVE. the State of New York, many of which were made

Where the court, at defendant's request, instructs necessary by the revised and amended Constitution the jury that they have a right to consider the abof 1895. There were over 270 amendments to the sence of any proof of a motive for the crime, it is Code of Civil Procedure alone, many to the Penal not error to qualify the same by stating that proof Code and over 115 to the Code of Criminal Pro- of a motive is not necessary to conviction. (Jolincedure. In some cases, of course, the only change

son v. United States (U. S. S. C.), 15 S. C. Rep. was that rendered necessary by the changed nomen

614.) clature of the courts, but in many cases the amend- DEED

ACKNOWLEDGMENT.-In the absence of ments, though apparently slight, in reality affect | fraud or duress, parol evidence is not admissible to greatly the law of the State. As already stated the impeach the certificate of acknowledgment of the governor signed chapter 1045, which was the last wife to a conveyance of the homestead, voluntarily law of this year, on Saturday, June 15, and the book signed by her in the presence of a notary, although appeared with over 160 printed pages on the follow- ignorant of his official character, with knowledge ing Monday. In other years when the amendments that her signature made in his presence was deemed were few in number this would not have been a very essential. (Jingwright v. Nelson (Ala.), 17 South. difficult task, but with the enormous amount of Rep. 91.) matter which had to be printed this year it was FEDERAL COU - JURISDICTION. - The Federal almost miraculous that the book appeared at such courts have no jurisdiction of a suit to set aside a an early date. The work is arranged on the Mayer's decree of a State court, on the ground that such deplan, with perforations around each amendment so cree is utterly void when tested by an inspection of that they can easily be detached and pasted in the the record, since in such case a motion, appeal, or code in their proper places. This system is not only bill of review, in the court which made the decree, unique but of material advantage to the practicing is the proper and sufficient remedy. (Little Rock lawyer, giving him a handy and speedy way of ar- Junction Ry. v. Burke (U. S. C. C. of App.), 66 Fed. ranging his code so that the existing law is apparent. Rep. 83.) Nearly all the amendments which were enacted to FRAUDULENT CONVEYANCE the Civil Code by chapter 946, and which was to issue as to whether a conveyance of personal propmake the Code of Civil Procedure conform to the erty was fraudulent as against creditors, evidence amended Constitution, do not go into effect until that after the alleged sale the purchaser went to the first day of January, 1896. The book shows at another State, and that the seller remained in pospage 117 that chapter 96 of the laws of 1854, chapter session and apparent control of the property, is ad57 of the laws of 1874, chapter 242 of the laws of missible to show fraudulent intent on the part of 1888, chapter 219 of the laws of 1883, chapter 243 the seller. (Ashcroft v. Simmons (Mass.], 40 N. E. of the laws of 1888, were repealed by chapter 946 Rep. 171.) of 1895. Under this the general law, which is sec

LANDLORD'S LIEN RATIFICATION.- Where pertion 3 of the last named chapter, and which relates to pending proceedings in certain courts, is given lien for rent, the latter's failure to repudiate their

sons converted property on which a landlord had a and following this it is shown that sections 94, 232, action, or to reply to their letter proposing to pay 262, 793, 1836 and 2342 were amended not only buy for what they had appropriated, was not a ratifica chapter 946, but also respectively by chapters 724,

tion of their act. (McCarthy v. Roswald (Ala.), 17 376, 580, 410, 595 and 746 of 1895. The Penal Code

South. Rep. 120.) is not materially changed this year; it might be

MUNICIPAL CORPORATIONS--CONTROL OF STREETS. noted, however, that the work shows that seventyone sections of the Civil Code were repealed by

- Where part of a county road is taken into a chapter 946 of 1895, and that sections 39 and 528 municipal corporation by the annexation of conof the Code of Criminal Procedure were amended tiguous territory, it is subject to the control and by chapter 580 and also respectively by chapters supervision of the municipal authorities, wlio may 889 and 119 of 1895. The work is printed on one improve it, by grading or otherwise, at the expense side of the paper so that the pages can be detached of the corporation. (Wabash R. Co. v. City of and pasted in the Civil Code as already suggested Defiance (Ohio), 40 N. E. Rep. 89.


On an

ute, and it


undoubtedly true that no such The Albany Law Journal.

force could be given to the action of the two

houses without the aiding action of the PresiALBANY, JUNE 29, 1895.

dent. The New York Constitution, however,

is much more explicit on this subject, as it does Current Topics.

not mention concurrent resolution in any of
its various sections. In article



it [All communications intended for the Editor should be addressed simply to the Editor of The ALBANY LAW JOURNAL. expressly provides that “no law shall be enacted All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY Law except by bill;" while section 9 of article 4 JOURNAL COMPANY.]

provides that "every bill which shall have ANY requests have been received asking passed the Senate and the Assembly shall, be

that the opinion in the matter of the fore it becomes a law, be presented to the GovArgus Company v. John Palmer, as Secretary ernor, etc.”—a provision which is similar to the of State, et al., in relation to the legislative The first decision as to what a concurrent reso

one contained in the United States Constitution. printing, be published in this journal, deciding,lution is was handed down by Judge Landon in as it does, the question as to whether a concur

his opinion in the Argus case, above referred rent resolution is a statute, and being a mat

to, in which it is held that “a concurrent resoter which is of great importance in many Ilution of the two houses is not a statute.” It States as well as New York. The history of


that a concurrent resolution is the manner in which legislative enactments binding only on the members of the Legislature have been made would be, perhaps, superfluous, which passes such resolution, and is operative though it may be remarked in passing that even

only on the members or those persons directly in the very early history of this country the ex

within their jurisdiction, or else in a case where ecutive power was necessary to enact a law it is expressly provided by statute that a conbinding on the people within the territory current resolution may operate in a certain over which the legislative body had jurisdiction. way. The order of Judge Landon was affirmed The Constitution of the United States provides by the General Term of the Supreme Court of principally for two methods of enacting statutes, the Third Department, and was subsequently and though they differ in name, yet they are affirmed by the Court of Appeals on the opinion practically the same. Article 1, section 7, sub- of Judge Landon; so that his opinion has pracdivision 2, provides that “every bill which shall | tically the same force and effect as one from have passed the House of Representatives and the court of last resort. The opinion in full is the Senate shall, before it becomes a law, be

as follows: presented to the President of the United States,

“The question presented is, whether under etc.;” and subdivision 3 of the same section, the statutes authorizing the defendants as the of the same article, provides that “every order, board to award the contract for certain public resolution or vote to which the concurrence of and legislative printing to the lowest bidder, the Senate and the House of Representatives they can adopt as a basis for computation, in may be necessary, shall be presented to the order to determine who is the lowest bidder, President of the United States, etc.” In either extra copies of legislative bills, assumed by the case, the approval of the President is necessary, | board to be called for and ordered by the conor else a bill or concurrent resolution must be

current resolution of the Senate and Assembly passed over his veto by a two-thirds vote of in 1892; such extra copies being in excess of both houses. It is generally recognized that the number authorized to be printed by section concurrent resolutions are more easily passed 72 of the legislative act, chapter 86, Laws of in Congress, and such a resort is taken on this 1892. account in many cases.

There is nothing, "The board advertised for proposals, rehowever, in the United States Constitutionceived several bids, and on the roth of May, which would give color to the proposition that 1895, proceeded to consider said bids with the a concurrent resolution, without the approval view of awarding the contract, and thereupon, of the executive, would be equivalent to a stat- as appears from the affidavit submitted by

VOL. 51 No. 26.

them, adopted a resolution to the effect that lected an interesting review of the legislation said board of State officers should include in respecting legislative printing. The statutes in the basis of computation of said bids for such force in 1892 were revised and superseded by legislative printing, the extra copies of bills the legislative law' of 1892. called for by the concurrent resolution at page “It appears from this review that the words 234 of the Senate Journal of 1892,' and there l 'ordered by statute' were inserted in chapter upon adjourned. I assume (as was assumed by

588 of the Laws of 1886, entitled 'An act to the board for the sake of the argument), with. I provide for and define the public or legislative out deciding and without prejudice to the de printing,' in place of the proposed words, ‘orcision of the matter by said board, that upon dered by concurrent resolution,' as the result of the basis of said resolution, the relator is not

a very persistent effort on the part of Governor the lowest bidder, but is the lowest bidder if Hill and others to reduce and confine public the said resolution is unauthorized by law.

printing within statutory bounds. “Sections 72 and 77 of the legislative law,' “ The concurrent resolution of 1892, at page chapter 682, Laws 1892, prescribe the duties | 234 of the Senate Journal of that year, reads as of the board in respect to the award of the follows: contract for legislative printing. Unless the

"Resolved, That the contractor to do the concurrent resolution mentioned in the resolu- public and legislative printing be and he hereby tion adopted as aforesaid by the defendants has is ordered and directed to print for the use of of itself, or by the aid of other statutes, the the Legislature, in addition to the number of force of law, said sections of chapter 682 con bills required to be printed by the seventeenth fer the sole power possessed by the defendants joint rule, 500 extra copies of all general bills respecting the printing mentioned in this reso introduced in either house.' lution of May toth.

“As this resolution is not a statute or law, it “Section 72 provides for including in the can be nothing more than an order of the Legcontract the printing of 640 copies of each islature of 1892 to the printing contractor to do Senate and Assembly bill, and also for each the extra printing specified, and trust to the additional 100 copies thereof when ordered by supply bill for his pay. The fact that the pubstatute. Section 77 provides that such con- lic printer has never been disappointed in the tractor shall print any extra number of copies supply bill in this respect may forecast future of bills

whenever ordered by law,' happenings, but nevertheless a spent resolution and that for this printing the contract shall and an expected clause in a future supply bill provide the price.

must not be mistaken for an existing statute or “ The contract now to be awarded is to be law. in force for two years from October, 1895. “ The defendants were, therefore, in error in

“I have no doubt that provided by statute' including in the basis of computation of the and provided by law' as here used mean the bids for legislative printing the extra copies of same thing. When there is a statute prescrib. bills called for by the said concurrent resoluing and covering the powers and duties of the tion. board in respect to the contract it is difficult to “So long as the defendants keep within the conceive how there can be any other law en- terms of the statute, which confers, defines and larging their powers and duties. Indeed, this permits their duties, the court cannot interpose. statute is called the ‘legislative law,' and the But when they go outside those limits to the pre' law' mentioned in section 77 is no other than judice of the public or of an individual whose this statute. A concurrent resolution of the rights are thereby injuriously affected, they two house is not a statute. * No law can be must be called back within them.

What they enacted except by bill,' Const., article 3, sec- may rightfully do within their prescribed powtion 14, and this, when passed by the Senate ers affords no test of their action outside of and Assembly, must be approved by the gove them. They can do nothing rightfully outside

of them, and it is improbable that they will do "The learned counsel for the relator has col- I anything improperly or wrongfully within them.


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