Williams v. State , 23 Tex. 264 ( 1859 )

Roberts, J.

This is a criminal proceeding by information. The act, which requires the attorney-general to institute it on behalf of the state, makes the act, intended to be charged against the defendant, a misdemeanor. (Hart. Dig., Art. 87.) “ Ho person shall be holden to answer for any criminal charge, but on indictment or information.” (Bill of Rights, part of sec. 8.) It is instituted in Galveston county, because that is the county in which the association of individuals kept their office. (Hart. Dig., Art. 88.) The information does not allege that fact in the language of the statute, but the same idea is conveyed by alleging that the defendants, in the county of Galveston, were associated together, being the president, cashier, and directors of an illegal bank, “ the said illegal bank having and keeping an office in the city of Galveston, in the said county of Galveston.” This expression is as certain, as if it had been literally accurate. For if they are the officers of the bank, which has an office in Galveston, it is their office necessarily.

They are charged as an “ association of individuals.” Again, the pleader has departed from the words of the statute, without varying from their meaning. The statute provides, “ that any corporation, company, or 'association of individuals, who shall use or exercise banking or discounting privileges in this state, or who shall issue any bill, check, promissory note or other paper, in this state, to circulate as money, without authority of law, shall be deemed guilty of a misdemeanor, and shall be liable to a fine of not less than two thousand, nor more than five thousand dollars ; which may be recovered by a suit in the District Court, in the name of the state.” (Hart. Dig., Art. 87.)

It is alleged, that the defendants, (setting out their names,) “ were then and there, and previously thereto, had been, associated together, being the said Samuel M. Williams, president, and a director, the said Henry Jenkins, cashier, and the other defendants, the other directors, of a certain illegal bank, called 6 The Commercial and Agricultural Bank,’ the said illegal bank, then and there, having and keeping, and previously thereto, had and kept, an office in the city of Galveston, in the said county of Galveston, and in the said state; and that on the said 18th day of February, 1853, in the county of Galveston aforesaid, the said defendants, in the characters and capacities of president, directors, and cashier, as aforesaid, did, then and there, without authority of law, issue in this state, to circulate as money, a certain lithographed, or engraved and written promissory note,” &e.

The facts, here alleged in connexion, show that they were associated together, as an organized banking company, and acting together as officers, in doing the thing complained of. If they were thus associated with a common interest, purpose, and action, they were surely an “ association of individuals.”

It is contended by the defendants, that they, being the officers of a bank, and only a part of the stockholders, do not constitute the association of individuals, contemplated by the statute. This question is raised by a plea, in which it is alleged, that they were president, directors, and cashier of an association, claiming to be a corporation, under the name of the Commercial and Agricultural Bank, and composed of a large number of members and stockholders beside themselves; and that they were not an association, or associated together, otherwise than by holding said offices, and by being such members. By this it is assumed, that all the stockholders constituted the association, and that they should all have been prosecuted, in order to reach the association of individuals. The statute evidently contemplates, that the persons prosecuted shall be an organized association of individuals, having officers, who may be served with process, and upon whose property execution may be levied, in default of the estate which may belong to the association. (Hart. Dig., Art. 88.) It would seem, that as this common estate is owned by all the stockholders, and is the fund primarily resorted to in satisfaction of the penalty imposed, it would be most appropriate to join them all as defendants, as constituting the association, if the subject be considered alone in reference to the property, which may thus be subjected to the payment of the fine. If this were a debt, arising upon a joint liability, then the stockholders would constitute the association, in respect to that liability, and should all be joined. If a portion of them were left out, their remedy would not be to plead in bar generally, that there were a number of other stockholders not sued, as the plea states in this case, but by plea in abatement, showing who else should be joined. (1 Chitty, Pl. 46, 47.) Where the liability arises out of a tort jointly committed, all need not be joined. There may be exceptions to this rule, when in some cases the default is by persons having a joint interest in the subject-matter, imposing a joint duty, and then the non-joinder must be pleaded in abatement. (Gould’s Pl. 207, 208.) In criminal cases, any one, a part, or all of those jointly concerned in committing an offence, may be prosecuted. (1 Chitty, Crim. Law, 267, 268, 269.)

The expression, “ any association of individuals,” as used in the statute, must be considered also in reference to the prohibited act, to wit: the issuing of a promissory note, in this state, to circulate as money, without lawful authority. The act, which inflicts the injury,- must be done in this state. Some of the stockholders may have lived in Europe, and may never have been in Texas. Some of them may have opposed and protested against the act of issuing, as an unauthorised act of the directors. Even nine-tenths of them may have done so. If the mere allegation and proof, that there were other stockholders not sued, would defeat the prosecution, who should the state prosecute ? Upon the supposition, which alone would justify a prosecution in this case, the association was unauthorised; and if so, it was not subject to any visitation by any one, who could give information, as to who were stockholders. And if it be important to join all the stockholders, so as .to make the judgment subject their property to the satisfaction of the penalty imposed, then it would follow, that new parties must be made during the prosecution, just as the stock may be transferred from one person, who is sued, to another, who is not. Infants, married women, lunatics, trustees, administrators, executors, guardians, and corporations, whether abroad or at home, may own or control portions of this stock.

These considerations serve to indicate, that who may own the capital invested, and what are the terms of association, as a private financial adventure, are of no sort of consequence. The important matter is, what individuals are associated together in doing the prohibited act. They constitute the association of individuals contemplated. If they are but agents, without interest in the capital, otherwise than to control and manage it, and by their associated and organized action, become the instruments by which this criminal act is perpetrated, they cannot shelter themselves under their agency. They maybe agents as to the capital which they manage, but they are principals as to the offence, by acting in organized concert, in doing that which the law forbids. The statute uses the words, any association of individuals, in designating the persons to be prosecuted. It is not the object of the law, to enable the state to realize a large amount of money by forfeiture of capital vested in illegal banking within the state. Its object is, to prevent any persons from associating together, whether as agents for others, or as principals, in the management of capital, or in any capacity whatever, for the purpose of issuing notes to circulate as money. The forfeiture of the capital, or a portion of it, which they control for themselves, or are permitted by others to control, in this illegal business, is merely incidental,—a means adopted to deter persons from forming such an association, for such a purpose. In default of the estate of the association, the property of the officers must be taken in execution. An officer may have no sort of interest in the capital stock, or the profits of it; and may constitute no part of the association of stockholders, who own the capital. Why then does the law render him liable to this prosecution, and subject his.property to the payment of the penalty? Simply because his want of interest, and not being a stockholder, are not the only tests of his criminality. Being an officer, and in that capacity participating in the prohibited act, makes him a member of the association. Stockholders may be liable to prosecution. They are linked to the association by their capital, through the use they permit to be made of it. But officers are linked to it by their participation in the illegal act. Corporations even may be formed, wherein those who are the beneficiaries, the parties interested, are not a part of the association who control the business.

The plea admits both the interest as stockholders, and the participation in the prohibited act as officers, on the part of the defendants, and that they are associated as officers for the performance of that very thing. The fact that other persons, who are not joined with them, may also be liable to be prosecuted as a part of the association, is no defence.

The next question is, was this note issued, as it is alleged to be, “ without authority of law?” The defence set up to establish their lawful authority is, that Decree No. 308, of 1835, of the congress of Coahuila and Texas, created at the time of its passage, a body corporate, and vested in Samuel M. Williams, an interest, in it, which no subsequent legislation has divested. And that the association, in 1847, having been properly organized, under the charter then granted to him, these defendants being officers thereof, had lawful authority to issue said note to circulate as money, according to the terms of the said charter. The leading subject of inquiry is the character of interest vested in Samuel M. Williams by this decree.

It is matter of history, that Samuel M. Williams was intimately connected with the foundation, growth, and prosperity of Austin’s colony. In 1835, its population and resources had

so increased, as to induce some of the colonists to desire greater monetary facilities, in their isolated situation, than could be enjoyed by the use of gold and silver, and foreign bank bills. To provide for this want, whether real or not, Samuel M. Williams, as we may presume, applied to the state government, for the establishment of a bank, in the department of Brazos. In response to this application, this decree was made, in which the. establishment of a bank is permitted, granted, or conceded.

The first article says, as it is translated in the laws and decrees of Coahuila and Texas: “ It is hereby granted, that a bank be established in the department of Brazos, to be called ‘ Commercial and Agricultural Bank.’ Samuel M. Williams, as empresario, shall take the proper measures for the establishment thereof.” (“Se concede el establecimiento de un banco de avio en el departamento de los Brazos, que se denominará Banco de Comercio y Agricultura. El cindadans Samuel M. Williams promoverá como empresario lo conveniente para su plantación.”)

The portions of said decree, which it is necessary to recite, to ascertain what measures were necessary to be taken, in order to establish the bank, are as follows:

“ Art. 3. The subscribers having joined for three thousand shares, at least, (shares were one hundred dollars each,) the empresario shall call a meeting of the same, and proceed to elect eight directors, who shall choose a president among themselves, and they shall perform the duties of their office one year.

“ Art. 7. The board of directors shall form internal regulations for the financial management for all the business of the association.

“ Art. 10. The subscribers shall adequately secure the value of their shares with real estate in the republic; and as soon as one hundred thousand dollars, at least, have entered the .vault of the bank, it may commence operations; a commissioner to be. appointed by the executive, (gobierno,) previously intervening, who shall furthermore examine, every year, the state of the concerns of the association.”

In devising the means of settling the country, the state had been familiar with the use of empresarios and commissioners; and their duties and powers in their colonial system, were well known. It was quite natural that it should adopt the same instrumentality, in developing the resources of one of its established colonies; and hence, the decree is so meagre, in defining the duties and powers in this enterprise. The empresario did not, .by his contract, acquire a right to the land within the limits of his colony. His right depended upon his introducing settlers after making the contract; and whatever preparation he might make, or expense he might be at, if he failed to comply with the terms of his contract, his right failed; and if his services had been beneficial to the country, his only remedy was to apply to the government for relief, as was done in the case of Power and Hewitson. (See Laws of Coahuila and Texas, Decree.) The commissioner of a colony was an officer of the government, appointed to investigate the acts of the empresario, in the performance of his contract, and to grant titles to those who might be shown to be entitled to them under the law of colonization. This view will throw light upon the provisions of this decree.

There are no express terms of incorporation used. But from the organization devised, it is evident, that a corporation aggregate was intended to be established; with subscribers of stock, who should elect a board of directory to manage the institution. This was the object ultimately to be attained, in relation to the character of the body corporate, intended to be created. This was the personal organization of the establishment, conceded for the benefit of the department of Brazos. Samuel M. Williams was deemed a proper person to undertake this enterprise, and take the proper steps for the erection, or laying the foundation of (para su plantaron,) this establishment. His duties obviously, were, to look out for and select persons, who would unite as subscribers for shares in the bank, and when three thousand shares were taken, it was his duty to call a meeting of the subscribers, to elect a board of eight directors, who should, among themselves, select a president. The financial management of the business of the association was then vested in this board of directors. Suppose, at this initiatory step towards a complete organization, Williams had been unable or unwilling to unite with the subscribers, and had not taken any share; he could have had no interest in the institution; nor would he have been a member of the association. For without one share he could not have been a subscriber, entitled annually to vote for directors; and without being an “ owner of five shares, at least,” he could not have had the prescribed qualification for a director. After the directory should have been elected, and the value of the shares secured with real estate, in the republic, and one hundred thousand dollars entered the vault of the bank, it would then have been necessary for a commissioner to have visited the institution, and inspected and approved of these acts, as having been done in accordance with the charter. Upon this being done, and not until then, would the association have been organized completely, so as to commence operations. Had Williams taken all the stock, and furnished the requisite security, and money, and exhibited them to the commissioner, assuming to be sole subscriber and director, the commissioner could hardly have decided that such an arrangement met the policy of the law, which prescribed eight directors to manage this institution. The object of the government in its establishment, was the benefit to the public, as well as an advantage to the subscribers, and the interest of the public might be much better subserved, in affording accommodations to the citizens, by eight directors, than one. So, if the commissioner was not satisfied, that the shares were secured adequately, so that citizens would be safe in dealing with the institution, or if not satisfied that the proper amount of money had entered the vaults of the bank, it would have been his duty to decline giving his sanction; and the organization would still be incomplete. The rights of those concerned, if a sufficient number had united, would be imperfect. If the government should never appoint a commissioner to pass upon these measures, then the association could not be organized, and the initiatory steps, which may have been taken by the empresario and others uniting with, or through him, would fall to the ground. As in case of a colony, if no commissioner, or other person in that capacity, be appointed to pass upon the rights of colonists and empresarios, and no titles be granted, the empresario could have acquired no vested right to any land in the colony. His equity, as against the government, for redress for his trouble and expense, may have moved the government into additional action for his relief, but if it should not, he must have been without remedy.

This view of the subject shows, that at the time this decree was passed, the state was not prepared to say what individuals should compose this aggregate corporation, intended to be conceded, and thereby at once create it. Therefore, it granted the establishment of the bank in the department of Brazos. And to perfect the grant, it authorised Williams, as manager of the enterprise, to move forward with, and procure to be adopted, the necessary steps, which were prescribed for starting into existence this corporate body; and at the same time, the state reserved to itself the right to determine, through a commissioner, when those measures thus to be taken had been perfected, as prescribed in the decree; so that the commencement of its existence was made to depend upon the concurrent action of the subscribers, who might unite under the instrumentality of the empresario, and of the government, thereafter to be performed through a commissioner, to be appointed for that purpose. (Laws of Coahuila and Texas, 296.)

Bacon says, “ Yet the king may give power to a common person, to name the corporation, and the persons it is to consist of; but when he has so done, this corporation does not take its essence from the common person, but from the king.” (Cites 10 Co. 33 b.) In the case before us, the state reserved the right to determine, whether or not the persons had qualified themselves by their acts to become corporators, so as to form the association, or body corporate, conceded. Justice Story said, “ When, on the other hand, the corporation is to be brought into existence by some future acts of the corporators, the franchises remain in abeyance until such acts are done; and when the Corporation is brought into life, the franchises instantaneously attach to it.” (Dartmouth College v. Woodward, 4 Wheat. Rep. 690.) Chancellor Walworth said, “ The act under which the commissioners opened books of subscription to the capital stock of the Utica and Schenectady railroad company, did not create a corporation, eo instanti, when that act took effect as a law; it only constituted such persons a body corporate, as should thereafter become stockholders, in the manner prescribed in the act. As there could be neither a corporation nor stockholders in existence until after the stock was apportioned, the commissioners did not hold the stock, nor did they act in the character of officers, servants, agents, or trustees of the corporation, or of the subscribers. But they acted merely as officers, or agents of the government, appointed by the legislature, to assist in the organization of a corporation, and to create a stock in the same.” (Walker v. Devereaux, 4 Paige, Ch. 245.)

In the case last cited, the persons called commissioners, combined the duties of both empresario and commissioner, as contemplated in the decree, No. 308. The reasoning above quoted, will apply to this case, if it be considered that the decree indicated that the subscribers for shares were to be the corporators, as plainly as though it had been expressed.

Had the intention existed of creating a corporation, eo instanti, and of making Williams the sole corporator, until he chose to unite others with him, the grant would have been made directly to him, or to him and his associates. (Angell & Ames on Corp. 24, § 28.) It is said, in Pennsylvania, in accordance with the general authority in relation to corporate privileges, “ no privilege is granted unless it be expressed in plain and unequivocal words, testifying the intention of the legislature, in a manner too plain to be misunderstood.” (Sedgwick on Stat. and Con. Law, 342.)

We have instances of the direct grant of exclusive privileges in the decrees of Coahuila and Texas, which may serve to illustrate the mode of expression adopted in such cases. After accepting formally the proposition of Benjamin H. Milam, to clear out the Colorado river, the second article of Decree No. 302, says: “In pursuance thereof, exclusive right is hereby granted to said Milam, for the term of ten years, for navigating the said river,” &c. (Laws of Coahuila and Texas, 292.) Again, in Decree No. 271, it is said: “ Art 1. Exclusive privilege is hereby granted to James Grant, for the term of ten years, for manufacturing with machinery every kind of cotton and woolen goods,” &c. (See also No. 160.)

This authority granted to Williams, of taking the steps to establish a bank, was confirmed and continued by an act of the legislature of Texas, in 1836, in the following words: “ That the president be, and he is hereby authorised and required to appoint a commissioner, for the purpose contemplated in the tenth article of the charter of the Bank of Agriculture and Commerce, granted to Samuel M. Williams, by the legislature of the state of Coahuila and Texas, in April, 1835, in order that the parties may exercise and enjoy their privileges under said act.” It was doubtless well known to many members of that legislature, that Samuel M. Williams had been mainly instrumental in obtaining the charter, and being named in it, as the person authorized to take the necessary steps for its establishment, it might very well be said, that it was granted to him by a mere recital in an act, (whose object was the appointment of a commissioner,) without intending to increase his powers, or confer upon him new rights, not before possessed under the decree. The shape and object of the section quoted shows, without question, that the legislative attention was not addressed to the powers or rights of Williams in the charter, but to provide the means necessary to enable him to give effect to them, by the appointment of a commissioner. It takes for granted that his powers were still in force. These considerations render it sufficiently obvious, that it was no part of the intention of the legislature to make any change in the decree, so as to alter the relations, which Williams bore towards the establishment of the bank, but to put in force the provisions of the decree, “ in order that the parties may exercise and enjoy their privileges under said act.” (Referring to the decree, and styling it an act.)

Without discussing the point, as to whether or not the repealing clause of the Act adopting the common law, in 1840, repeals this decree, No. 308, we may advance at once to the enactments, immediately connected with the subject. An Act of 1844, passed three years before this association claims to have been organized for business, provides, “that all laws, granting to any individual, individuals, or corporations, the authority to issue either bills or promissory notes, to pass and circulate as money, are hereby repealed; and the authority to issue either bills or promissory notes, or any other instrument in writing, in print, hieroglyphics, or engraving, to circulate as money, is hereby abrogated.” (Hart. Dig., Art. 83.) This is too plain and pointed, to admit of comment. If Williams, or others, had not, up to that time, acquired a vested right as corporators, this privilege of issuing notes was abrogated, whatever other powers it left, in force, to be exercised under the charter.

The constitution of the state makes provision, that “ the rights of property and of action which have been acquired under the constitution and laws of the republic of Texas, shall not be divested,” &c. And further, that “no corporate body shall hereafter be created, renewed or extended, with banking or discounting privilegesand further, “the legislature shall prohibit, by law, individuals from issuing bills, checks, promissory notes, or other paper, to circulate as money.” And further, that “ the offices of president, &c., and others repugnant to this constitution, shall be superseded by the same,” &c. (Hart. Dig., Art. 73, 74, 82.) These provisions show, that the policy of the state had changed gradually from 1836 to 1845, and that the state could, thereafter, not be instrumental in, or give its consent to, the creation, extension, or renewal of any banking corporation. And it would have been repugnant to this policy, so fully developed, to tolerate the continuance of the office of commissioner, whose only duty was to do that which would start into existence exactly such a corporation, and to visit it from year to year.

In relation to the measures taken by Williams for the establishment of the bank, the plea states, that he accepted the charter ; that he procured subscriptions to the capital stock ; expended means in engraving the blank notes for future use of said bank; that, in 1837, he sold, for a valuable consideration, a portion of his interest to Henry H. Williams; that Niles F. Smith, in 1836, or some time soon thereafter, was appointed commissioner, which office he accepted, and that he has ever since discharged its functions; that the revolution, and embarrassments of the money market, delayed the completion of the measures necessary for its establishment; that in December, 1847, the subscribers, including said Henry II. Williams and others, who had previously subscribed, having joined for more than three thousand shares thereof, and the money having been counted by the commissioner, as appears by his certificate; that a meeting of the subscribers having been called by the empresario, was held, and directors were elected, and that the bank then went into operation.

It is to he observed, that it is not shown that the value of the shares were secured by real estate in the republic or state; that the commissioner did anything except count the money, and certify to that fact; that at any time, before 1847, was there as much as three thousand shares subscribed, or a meeting of the subscribers called. If there were not three thousand shares subscribed, the whole matter was in abeyance, and no right was acquired by a subscriber. If there was no meeting of the subscribers, and election of directors, there was no organization of the association. Williams, then, could have acquired no vested right, as a subscriber, or director, up to 1847. His sale to Henry H. Williams, in 1837, of a portion of his own interest therein, could convey no greater interest than he then had, which was just what the decree itself conferred; which, as we have seen, was simply the power or authority granted to him by the state, to set in motion and superintend the necessary measures, as prescribed for the establishment of the bank, subject to the future sanction of the government, through its commissioner, so as to give the aggregate corporation, contemplated in the decree, a recognised commencement and existence.

This association, as a corporate body, was put in existence, if at all, in 1847; after the repealing law of 1844, and after the prohibition' of the state constitution.

The authority of Samuel M. Williams, was not, then, that sort of vested right or privilege, as that the sovereign powers of the republic and state could not cut it off, by repealing or abrogating the decree conferring the authority; and therefore defendants had not authority by law to issue such note.

Upon another ground assumed in defence,—that this association having assumed to act as a corporation in doing this act, its corporate powers can only be called in question by a direct proceeding of quo warranto, or of scire facias,—it may be answered, that if the state recognised in any corporation whatever, such a privilege, as issuing notes to circulate as money, it would have a right to prescribe, that that matter should be tested, by just such proceedings as those provided in the Act of 1848, under which this suit was instituted; and, upon finding the privilege to have been usurped, to impose a fine for it. This proceeding is not intended to call in question their power to act as a corporation, except on this subject. It seeks to establish, that this power or privilege, considering the time of its organization, was never vested in this association. The same argument would shelter any railroad corporation, that might usurp this privilege. The authorities cited in support of this defence, refer to a different state of case, as -may be readily shown by an examination of the cases, and the principles upon which they rest.

These are believed to be the main questions involved in the case, which require an exposition. We do not think that the court below erred in its judgment.

The code contains a saving clause, which prevents this prosecution from being defeated, notwithstanding there may have been a repeal, by necessary implication, of the law of 1848. (Code Crim. Proc., Art. 187.) This offence, committed by an association of individuals, has not been continued in existence, therefore, it cannot be said that the punishment has been ameliorated. The same evil is sought to be reached by a different definition of an offence, in which the idea of association, as an element thereof, does not enter. (Penal Code, Art. 17, 400, 401, 402.) Judgment is affirmed.

Judgment affirmed.