allegation in constant use in respect to all defendants whose interests are recognized, but claimed to be subordinate to the mortgage, and against whom no personal claim is made. It has been often held that this general allegation is sufficient without more particularly defining the character or extent of such interest, and in many of these cases this general allegation has been directed against and recognized as covering the interest of the subsequent purchaser and owner of the equity of redemption: Hoes v. Boyer, 108 Ind. 496; Anthony v. Nye, 30 Cal. 401; Horton v. Long, 2 Wash. 435; 26 Am. St. Rep. 867; Drury v. Clark, 16 How. Pr. 424; Short v. Nooner, 16 Kan. 220. But the object of making James L. Ingalls a party defendant is the same in both cases, to wit, to cut off his right to redeem. If, in the supposed case, the allegation that he claimed an interest in the property might mean that he was the subsequent purchaser and owner, why may it not mean the same in this case? If it does so mean, then there was no defect of parties defendant, for in such case he was the only necessary defendant. We do not think the complaint shows upon its face that any other person is a 53 necessary defendant, because its allegations are entirely consistent with this sole defendant being the owner of the mortgaged premises, and the only person having a right to redeem the same, in which case he would be the only necessary defendant. In other words, the only strictly necessary party defendant is the owner of the equity of redemption; and the complaint does not show that defendant is not such owner. If it should transpire on the trial that he was only a subsequent lienholder the plaintiff's action would fail; if, on the other hand, he proves to be the owner of the premises, it would not fail; and, because the complaint is quite consistent with the conditions under which there would be no failure on account of defect of parties defendant, it is not demurrable on that ground. The order of the circuit court overruling the demurrer is affirmed.

All the judges concur.

MORTGAGES-FORECLOSURE. PARTIES DEFENDANT: See the notes to O'Brien v. Moffitt, 36 Am. St. Rep. 574; Turman v. Bell, 26 Am. St. Rep. 43; Gaskell v. Viquesney, 17 Am. St. Rep. 372, and Berlack v. Halle, 1 Am. St. Rep. 189.

STATE V. SCougal.

[3 SOUTH DAKOTA, 55.]

A FRANCHISE IS a royal prerogative, a branch of the king's prerogative vested in the hands of the subject. In this country it is a special privilege conferred by the government upon individuals, which does not belong to a citizen of the country by common right.

BANKING WAS NOT A FRANCHISE AT THE COMMON LAW, but, if a bank is given the privilege of issuing demand notes to circulate as money, it thereby exercises a franchise. CONSTITUTIONAL LAW-BANKING, POWER TO PROHIBIT EXERCISE OF POWERS OF.-The carrying on of the incidental powers of banking by discount. ing and negotiating promissory notes, bills of exchange, drafts, and other evidences of debt, receiving deposits, buying and selling exchange, coin, and bullion, and loaning money on personal security, is not a franchise, and cannot be made so by legislative action. Hence, an individual citizen cannot be deprived of the right to exercise those powers, nor can their exercise be restricted to corporations.

CONSTITUTIONAL LAW.-UNDER THE POLICE POWER it is not competent

for the state to prohibit a citizen from carrying on any trade, occupation, or business not injurious to the community. The business may be regulated, but not prohibited. BANKING, STATUTE RESTRICTING POWERS OF TO CORPORATIONS.-A constitutional provision that no law shall be passed giving to any citizen, class of citizens, or corporations privileges and immunities which upon the same terms do not equally belong to all citizens or corporations, inhibits the enactment by the legislature of a statute confining the right to exercise banking powers, other than the issuing of bills to circulate as money, to corporations. CONSTITUTIONAL LAW-BANKING, RESTRICTING RIGHT OF.-A state statute prohibiting the exercise of banking powers by natural persons, and authorizing their exercise by corporations, is in conflict with the provision of the constitution declaring that all men have inherent rights, among which are those of enjoying and defending life and property, and of acquiring and protecting property, and the pursuit of happiness. Robert Dollard, attorney general, for the plaintiff in error. Bartlett Tripp, for the defendant in error.

69 CORSON, J. This case comes before us on a writ of error issued on behalf of the state, to the county court of Yankton county, to review the judgment of that court sustaining a demurrer to the information filed against the defendant in error, and quashing the same. The legislature of this state at its last session passed an act for the organization of state banks, entitled "An act to provide for the organization and government of state banks," approved March 10, 1891, and constitutes chapter 27 of the Laws of 1891. The first section of the act is as follows: "Associations for carrying on the

business of banking under this title may be formed by any number of natural persons not less than three (3), one-third of whom shall be residents of the state. They shall enter into articles of association, which shall specify in general terms the object for which the association is formed, and may contain any other provisions not inconsistent with law, which the association may see fit to adopt for the regulation of its business and the conduct of its affairs. These articles shall be signed by the persons uniting to form the associa tion, and a copy of them shall be forwarded to the secretary of state of the state of South Dakota." The second section provides what the certificate of incorporation shall contain, and the third section provides for the manner of its execution, filing, etc. The fourth section confers upon such corporations or associations the following powers: 1. To adopt and use a corporate seal; 2. To have succession for twenty years; 3. To make contracts; 4. To sue and be sued; 5. To elect officers and prescribe their duties; 6. To make by-laws to govern and control the business; and 7. "To exercise by its board of directors or duly authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking, by discounting and negotiating promissory notes, bills of exchange, drafts, and other evidences of debt, by receiving deposits, by buying and selling exchange, coin, and bullion, by loaning money on personal security." And section 27 provides as follows: "It shall be unlawful for any individual, firm, or corporation to continue to transact a banking business, or to receive deposits, for a period longer than six months immediately after the passage and approval of this act, without 60 first having complied with and organized under the provisions of this act. Any person violating the provisions of this section, either individually or as an interested party in any association or corporation, shall be guilty of a misdemeanor, and, on conviction thereof, be fined not less than five hundred dollars, nor more than one thousand dollars, or imprisonment in the county jail not less than ninety days, or either or both, at the discretion of the court." These are all the provisions of the law that it is necessary to give to a proper understanding of the questions presented for our decision.

On the twenty-second day of September, 1891, the state's attorney filed an information against the defendant in error in the county court of Yankton county, containing eleven

counts, charging him in the various counts with carrying on the business of banking "discounting and negotiating prom. issory notes, bills of exchange, drafts, and other evidences of debt, by receiving deposits, by buying and selling exchange, coin, and bullion, by loaning money on personal property," without having complied with the provisions of the banking act. A demurrer was interposed to each count of the infor mation on the ground that it did not state facts sufficient to constitute a public offense. The demurrer was sustained by the county court, and judgment rendered quashing the information. The principal ground relied on to sustain the demurrer and judgment of the court below is the unconstitutionality of section 27 of the act, under which the inforination was filed, and this presents the only question we shall discuss or consider, as the other objections to the information were purely technical, and in our opinion are without merit.

The learned attorney general contends: 1. That the privilege of banking is, or may be made by the legislature, a franchise, and as such is subject to the control of the legislature of the state, and that, it being a franchise, or made such, the legislature has the power of conferring upon or granting the privilege to such persons, associations, and corporations as it may deem proper, and of excluding all other persons from the exercise of such privilege; and 2. If the privilege of banking is not a franchise, and cannot be made such by the legislature, then the legislature, by virtue of 61 the police power vested in the state, may regulate the business, and may, under such power, prescribe the manner in which the business shall be conducted, and may exclude all persons from exercising the privilege of banking, except in the manner prescribed by the law

The learned counsel for the defendant in error contend: 1. That only the banking privilege proper, namely, the privilege of issuing demand notes to circulate as money, or, as defined in the state constitution, the power "to issue bills or paper credit, designed to circulate as money," constitutes, or can by legislative power be made, a franchise, and that carrying on a banking business by exercising the incidental powers of banking specified in subdivision 7 of section 4 of the act is a right belonging to the citizens of the country generally, and not a franchise, and cannot be made such by legislative power. 2. That under the police power vested in the state the legislature may regulate, but it cannot prohibit

or destroy, a business, calling, or occupation, not necessarily offensive to the senses, injurious to the health, or otherwise detrimental to the public interest; that it is only trades, occupations, and pursuits that are at all time, and under all circumstances, necessarily offensive to the community or injurious to society, that can be absolutely prohibited by legislative action; and that, as the business of banking is not of this character, the legislature cannot prohibit individuals from pursuing it, though, like all other classes of business, it may be regulated. And 3. They further contend that the act conflicts with sections 1, 2, and 18 of article 6 of the state constitution, and section 1, article 14, of the constitution of the United States, in that the law makes an unjust discrimination in granting privileges and immunities to citizens, classes, and corporations which, upon the same terms, are not open to all, in that the law, and particularly section 27, is an unlawful interference with the liberty and property of the citi zen; in that it discriminates against the individual citizen by conferring upon corporations the right to transact a banking business, and prohibiting the same privilege to such individual citizen; and in that the act deprives the individual citizen of his right to pursue a lawful calling, occupation, or business which is inoffensive, and not injurious to the community.

62 1. Are the incidental powers of banking conferred upon corporations by subdivision 7 of section 4 franchises; or has the legislature power to make them such, and to prohibit individual citizens from exercising them? What is a franchise? Blackstone defines it "as a royal prerogative, or branch of the king's prerogative, subsisting in the hands of a subject": 2 Blackstone's Commentaries, 37. Chief Justice Taney defines them as follows: "Franchises are special privileges conferred by government upon individuals which do not belong to citizens of the country generally by common right. It is essential to the character of a franchise that it should be a grant from the sovereign authority, and in this country no franchise can be held which is not derived from the law of the state": Bank of Augusta v. Earle, 13 Pet. 595. The qualification by the chief justice, "which does not belong to the citizens of the country generally by common right," is an important one, and constitutes the distinguishing feature of a franchise. What is meant by this qualification is made. clear by Mr. Justice Bradley, in a recent case decided by the