Delaware gazette. [volume] (Delaware, Ohio) 1855-1886, 1870-10-21

ca requires a statutory Limitation
Courts win never enforce contracts
against public policy.
ssIf q contract be void as against the
policy of the law, the court viii nelth-
er enforce it while executory, nor re-
Iieve a party from loss by having per-
formed his part" Foote IS. Emmer-
son 10 Vermont, r. 344.
IF any part Of the entire consider
alton Of q contract is Illegal as against |
sound morals or public policy. the |
whole is void" Donal1en US. LenOx 6. |
Dana, 81; Armstrong u.s. Toller H. /
Wheat. 25S.
IAN attempt TO contravene the poll !
eyt of a5publie statute IS Illegal, though |
the statute contains. no express prOhi- |
bitfon of such attempt Sharp rs. |
TeeIe 4 Halst. 352, 4 Peters r. 1s4 & 40. |
But admitting that there may be q
doubt as to whether any other penalty
or forfeiture can be implied or infiict-
ed than that which is expressly pro
vided by this statute, let rs proceed to
consider the other objection made by
the defendents to this contract TO wit:
that II is void for want of power in the
Bank TO make it.
The plaintiff is a corporation, and
such, can have no power other than is
delegated by law-it can only do what
il is distinctly authorized to do by
Legislative enactment. Bank of Chill
licothe US. Swayne, ct. al. o. r. 2S5.
In determining the capacity of a cor
porafion, ttnO natural rights are recOg-
nized-its powers and privileges must
be expressly conferred" Greed Us. Com
mercial Bank of Cincinnati IL o. r. 4S9.
And notes taken to secure a loan at
greater rate of interest than is author
lied by the charter of a Bank, are void.
see same authorities, and Preble CO.
Bank rs. Russell et. al. 1st o. ST. r. SlS,
and Busby rs. Finn id 4O9: See also
SpauIding rs. Bank Of Muskingum, u.
o. r. 544.
In the case of the Bank of Chillicothe
Us. Swayne, the only restriction upon
the 20 Rer of the bank as to the rate of
interest was the following "'That said
corporation shall not take more than
at the rate of six per fcentum per
and in a suit against sureties on
was reserved, it was held that
the contract was void for want of
power in the bank to make.(8. o. r 25).
As subsequently, stated in argumentby
the learned judge who declared this
express power was given to
| loan money at per cent. interest. Be
yond this it had no power; and as 1t
| had made the attempt to 20 beyond
this, it had exceeded its powers, and
the contract thus attempted to be
made was as no contract" 1S 0. r. IL.
/ 1t cannot be contended but that the
i doctrine established by this case, and
/ followed by all the other cases above
cited, applied to the facts stated by the
defendants in the pleas now under
i consideration must ontitle them to
judgement upon the demurrer, unless
the provisions of the national banking
law in relation to the forfeiture of the
/ interest, authorizes different con-
structiOn of the act as to the pOsCeT of
| the banks in making loans.
The~Iearned counsel for the plaintiff
/ argues that the effect of these pTOYis-
ions is the same as if Congress had in
terms declared, that no contract for a
/ loan at the prohibited rate, should there
i bV be rendered UOid, but lOheReUeT tn q
suit atpOR such coItedet It should appear,
that illegal interest had been contracted
for, the plaintiff should forfeit the interest,
bat should hare judgement for the P7-i71-
cipGL. Andt his in my opinion is a fair
and candid statement of the eonstruc-
ton which must be given to this stat
/ uteto sustain the claim of the plaintiff.
| In reference to this construction, I
observe in the first place, that there
would seem to be considerable
doubt as to the power of Con-
of the States should do and
compel them to give validity to con-
tracts that are void, because ultra OiI'eS.
1t may give or it may withhold the
power to make such contracts. and the
courts will be bound to follow its en-
omits to confer upon corporation the
power to make such contract as this,
and not only so, but declares that they
shall not be made-hoW can it be COM
petent, in view of the admitted legal
rule that corporations have no power
except such as are expressly conferred
by law, to direct a state court, or Gny
court to hold contract thus made to
be valid, to the extent of the money
loan?
!
these Banks the power, subject to a
i forfeiture of the interest to max
i loans at a higher rate of interest than
that prescribed by the law This ques-
tion in view of the few and simple pro-
1 visions of the statute admits of but very
little elucidation by argument. To
make such contracts is to violate the
| statute or it is Motif the act is in Vio-
lation of the statute it is difficult to
understand why it is not prohibited
bv it.
Section 53 of the act provides as fol-
/ lows: stIf the directors OF any assOcia-
tion shall knowingly violate, or know
ingly permit any of the officers, or
agents or servants of the association to
violate any of the provisions of this
act, all the rights, privileges and fran
chises of the association derived from
this act shall thereby be forfeited &c. -
Then follows the provision that the
forfeiture mustabe adjudged by prop
er u. S. Court upon proceeding insti-
tuted BIZ the Comptroller of the cur
i rency. Now will it be pretended by
any lawyer that the knowingly con-
tracing for the loan of money at the
illegal rate of interest is not a viola
tion of the provisions of the act with
in the meaning of this section2 If
this cannot be maintained, how can it
be insisted that the act gives authority
to make such eOntracts2
But to enforce these contracts, in the
manner claimed by the plaintiff, is to
enforce a contract which the parties
never attempted to make. The con-
tract set up in these pleas is one in
which interest was reserved at the rate
OF 2}9qle pee cent. per GnHupl. This is the
contract Clearinghouse, the principal,
/ attempted to make on behalf of him
self and the other defendants, by the
delivery to the plaintiff of the paper
signed by them, which was filed up
for an amount to include this rate of
interest. Now it is admitted that this
contract was not made, and could not
! be, for tDd9et Of D01Uer. But the plaintiff
insists that the court shall enforce
against these sureties a different con-
tract-a contract for the repayment of
the money actually borrowed by Gar
Hnghouse.
IG seems to me that the language of
the Supreme Court, in Miami Export
ing Co. Us. Clark, is quite pertinent in
the case, can it be seriously contended
that the law will make out of this ille-
gal contract, a legal one; that it will
imply contract differing substantial
ly from the express contract made by
them? Clearly this cannot be-" I3 o.
r. 10.
tits argued that general power to
loan money, &c, is conferred in one
1 part of the statute, and that in another
section we have the provision as to the
rate of interest-thst this. does-noGs ef-
feet or limit the former power except
as to the rate ofinterest. Certainly,
according to, all rules of construction,
it can make nc, difference in the mean
! ing of the law, that these two provis-
ions are found ia different sections
/ The statute must be all taken together,
/ and the same construction given as if
i there were but one section.
But here again it is urged, as we
have observed in the discussion of the
other branch of this question, that un-
less we give the act the construction
claimed by the plaintiff, the provision
I 49, H. le-aA = ~