Pearce v. Bank of Mobile , 33 Ala. 693 ( 1859 )

RICE, C. J.—

The term of the original charter of the Bank of Mobile expired, by its own limitation, on the 1st day of January, 1839. Before its expiration, and in 1834, an act was passed by the legislature, whereby the term of the original charter, and the powers, rights, privileges and immunities thereby granted, were continued and extended, from and after the 1st day of January, 1839, until the 1st day of January, 1859, and whereby the Bank was authorized (among other things) to take and receive upon promissory notes made negotiable and payable at any bank within the city of Mobile, after six, and not having more than nine months to run, at arate of interest not exceeding seven per centum per annum.—Clay’s Digest, pp. 124-130.

In 1852, the legislature passed another act, entitled, i(Ao act to extend the charter of the Mobile Bank,” which is in the following words: (See foregoing statement of facts.)

The most important question in this case is, whether the act of 1852, even if accepted by the bank before 1857, deprived the bank of the right, granted to it by the charter of 1834, to discount in 1857 such a note as is here, .sued on, at the rate of seven per cent, per annum. The -determination of that question depends entirely upon the nature and meaning of the proviso contained in the 1st .section of the act of 1852.

“ The proviso is generally intended to restrain the enacting clause, and to except something which would otherwise have been within it, or, in some measure, to modify the enacting' clause.”—Wayman v. Southard, 10 Wheaton, 30. “ The-natural and appropriate office of a proviso is, to restrain or qualify some preceding matter,” and the proviso should be “ confined to what precedes, unless it is clear that it was intended to apply” to some other matter.—Rawls v. Doe ex dem. Kennedy, 23 Ala. R. 248; Smith on Stat. and Const. Law, § 758; Sedgwick on Stat. and Const.. Law, p. 62 ; Vorhees v. Bank of U. S., 10 Peters, 449.

The act of 1834, as a legislative charter to a corporation, was a contract of inviolable obligation, which could not constitutionally be impaired by the legislature, without the assent of the corporation.—Bank of the State v Bank of Cape Fear, 13 Iredell, 75. By that charter, the right to discount all-such notes as that here sued on, at seven per cent, per annum, was inviolably secured to the bank, until the lsi day of January, 1859, the expiration of the charter. There is nothing in the act of 1852 which shows an intention to require the bank to surrender, or to consent to surrender, before the expiration of the charter of 1834, any right secured by that charter. “ The-powers, privileges and capacities ” of the bank, which are extended by the act of 1852, are extended “from the expiration ” of the charter of 18.34, leaving that charter-wholly untouched in its duration. And the restraint which was intended by the proviso, as to six per cent, interest, seems to us to be clearly a restraint upon the extended powers, privileges and capacities, and not upon the powers, privileges and capacities, which belonged to the bank at and before the passage of the act of 1852. By confining, as we do, the proviso as to six per cent.. interest to what precedes it in the act of 1852, we allow it to perform its natural and appropriate office, and to operate as a restraint upon the powers, privileges and capacities which were derived from the act of 1852, and which, but for that act, would not have belonged to the bank.

The special provision in the charter, allowing the proceeding by notice and motion, for the collection of such. a debt as that here sued on, is uot affected by any subsequent general law.—Mobile & Ohio R. R. Co. v. The State, 29 Ala. Rep. 573; Daughdrill v. The Ala. Life Ins. and Trust Co., 31 Ala. Rep. 91; May v. Robertson, 13 Ala. Rep. 86.

Note by Reporter.—After the delivery of the foregoing opinion, the appellant’s counsel filed an application for a rehearing; in response to which, on a subsequent day of the term, the following opinion was pronounced:

Uppn an examination of the whole record, we find no reversible error, and therefore affirm the judgment.

A. J. WALKER, O. J.—

The petition for a rehearing presents in a forcible manner some arguments opposed to the affirmance of the judgment of the court below, which are not noticed in the opinion prepared by the late chief justice.

The act to extend the charter of the Bank of Mobile contains two provisoes, placed in juxtaposition, which are as follows: “ Provided, that the said bank shall, in no case, charge more than six per cent, per annum on its loans or discounts, except in cases of settlement made to secure and doubtful debts; and provided further, that the said bank shall receive on deposit the funds of the county or city of Mobile, and pay out the same in such amounts as may be drawn for, for which it shall receive no compensation.”—Pamphlet Acts of’51 and’52, p. 104. On the same day with the act to extend the bank charter, another act was approved, which made it the duty of the bank to receive on deposit and pay out the funds of the city and county of Mobile.—Pamphlet Acts of ’51 and ’52, page 470. It is clearly indicated in this latter act, that it -was designed to become operative, at the farthest, on the first of April next after its adoption, and before the expiration of the old charter, or the commencement of the extended period. It is contended, that this latter statute is a coternporaueous legislative construction of the second proviso, and clearly indicates an intent that it should have a present operation. The inference is then drawn, that the legislature designed that the first proviso should also have a present operation, because it is supposed that the two provisoes must have a like interpretation as to that point.

"We do not consider, whether the second proviso should he understood as is contended; but we are unabje to attain the conclusion, that the same time for the commencement of the first proviso, as of the second, must necessarily be adopted. There are reasons, opposed to the allowance of an immediate- operation to the first proviso, which can not apply to the second. The restriction of the bank to six per cent, on its loans and discounts is, in its nature, a qualification of the powers previously conferred. The extension “of the powers, privileges and capacities ” of the corporation, bestowed the privilege of making loans and discounts; and tbe proviso, immediately following, would seem naturally to qualify that privilege. It is different, in tbat respect? from tbe proviso in reference to the gratuitous receiving on deposit and paying out the’ money of the city and county of Mobile. That proviso is not of such a nature as to qualify any of the acts which the bank is authorized to perform. iLdoes not, like the first proviso, pertain to the manner in which any of the granted privileges are to be exercised. It rather imposes a burden, as a part of the price in consideration of which the extension of the period of the franchise was granted. There is nothing in its nature which interferes with the allowance to it of a present operation.

These two provisoes differ from each other in another essential particular. The second proviso could have immediate effect, without the abrogation or repeal of any clause of the previous acts chartering and extending the charter of the bank. Tbe first proviso could not operate before the extended period of the franchise, without a repeal of the clause in the charter prescribing the rate of interest. To'give the first proviso immediate effect, it must not only be regarded as qualifying the privileges granted by the act, but as repealing a pre-existing law. Regarded in that light, the first proviso would have an operation not authorized by its language, and certainly not justified by the authorities which define the scope and effect of a proviso, several of which are collected in our former opinion in this case. It is an established principle, that a later statute shall not repeal an older one by implication, unless they are so inconsistent that they can not stand together.—Rawls v. Kennedy, 23 Ala. 240; George v. Skeates, 19 Ala. 738. The proviso now under consideration is not so inconsistent with the previous act, prescribing to the bank the rate of interest to be charged, that the two can not stand together. On the contrary, a perfect harmony between the two is" preserved, by giving the former effect upon the expiration oí the period appointed for the operation of the latter. We think it follows from what we have said, that the giving of immediate operation to the first proviso would involve the repeal by implication of a previous statute, while no such consequence would attend the allowance of an immediate operation to the second proviso.

For the reasons above set forth, even it be conceded that we have a legislative construction of the second proviso, which gives it a present force, we should not deem it our duty to place the same construction upon the first proviso.

On the 6th February, 1858, an act was passed, amending the first proviso, and modifying the restriction as to the rate of interest. We do not find in this act any evidence that the legislature regarded the first proviso to the act extending the charter of the bank as having any operation before the commencement of the period of extension. The language and the purpose of the act consist as well with the supposition that the proviso did not have, as that it did have a present operation.

The petition for a rehearing is overruled.