wherein the plaintiffs have tendered and offered to redeem their said notes in the said treasury notes, and also from taking any steps whatever towards the sale of the stocks or trust funds in his hands belonging to the plaintiffs, by reason of the notices of protest filed in his office and referred to in this case.

From this judgment the defendant appealed.

Оде

ARGUMENT

OF

J. V. W. DOTY, Esq.,

MR. DOTY said:

Of Counsel for Appellant.

If the Court please, the case presented to the Court for consideration, is one which has been agreed upon under the provisions of the Code of Procedure, between the Metropolitan Bank and the Shoe and Leather Bank on one side, and Henry H. Van Dyck, as superintendent of the banking department of this State, on the other.

It would be well to say, perhaps, that in the first district a mandamus had been issued to compel Mr. Van Dyck, as said superintendent, to proceed to sell the securities of certain other banks of this State not represented upon the record, and that pending the agreement and decision in those cases, this case was agreed upon. It perhaps presents the whole question at issue; and the mandamus cases have been suspended for the time being, awaiting the result herein.

It appears from this case, that these institutions were chartered and doing business under the general banking law of this State; that they had issued their bills, having given the securities required by law; that the notes which they had issued as money were duly presented at their respective places of business for payment, and payment was refused; or payment was demanded in gold or silver coin, and they offered to redeem the same in legal teuder notes, which were refused.

This case was not argued in the Court below, as I understand; nor was any written opinion given by the judges who

decided it. I therefore appear in this matter without having heard from the learned judges who assented to the decision upon which this appeal is founded, or from the counsel who represented the respective parties in the Court below, anything to indicate upon what principle the banks base their right to redeem their bills issued as money in legal tender notes. I am therefore thrown entirely upon my own views in opening this case before the highest Court of the State, in the first instance-a circumstance which seldom occurs in legal proceedings.

I do not appear in the case of Meyer vs. Roosevelt, and have never taken any part in it; neither have I claimed, nor do I claim, that legal tender notes are absolutely void, nor that such a conclusion is necessary to be arrived at, in order to shield the banks from their obligations to redeem their bills in specie.

The points which apply directly to the banks will be found at page eighteen of our brief. My learned associate, who appeared in the Roosevelt case, is fully prepared to argue the main question; and while it is true that, should this Court come to the conclusion that legal tender notes are not constitutional and valid, it meets my case; still, I insist that should a contrary conclusion be arrived it, it cannot be held that the banks are entitled to redeem their notes in anything but specie.

My first point is, that the banks of this State are the creatures of the Constitution and laws thereof, and in no manner depending upon or affected by the laws of the general government, as moneyed corporations; so far at least as their privileges or duties are concerned, it must be conceded that the States have the power, and have long exercised it, of creating banks, and that such banks when created are amenable only to the laws of the respective States. I suppose that this general proposition

will not be denied.

I have been unable to find anything tending to show that Congress has ever interfered with the States in the creation and conduct of the banking institutions within the States, they having their being by virtue of the laws of the States.

The superintendent of the banking department of this State, in his annual report to the Legislature of 1861, says:

"For more than three-fourths of a century, the States have

exercised exclusive jurisdiction over the banking institutions of their creetion, and it is hardly to be expected that they will relinquish it now." Mr. President Van Buren, in his message to the Special Session of Congress for 1837, says:

"Banks properly established and conducted, are highly useful to the business of the country, and doubtless will continue to exist in the States so long as they conform to their laws and are found to be safe and beneficial. How they should be created, what privileges they should enjoy; under what responsibilities they should act, and to what restrictions they should be subject, are questions which, as I observed upon a previous occasion, belong to the States to decide. Upon their rights, or the exercise of them, the general government can have no motive to encroach. Its duty to them is well performed when it refrains from legislating for their special benefit, because such legislation would violate the spirit of the constitution." "I cannot❞—

says he

"doubt that upon this, as upon similar occasions, the federal government will find its agency most condusive to the security and happiness of the people when limited to the exercise of its conceded powers."

وو

And I repeat, there can be nothing found as authority or precedent that the General Government has ever undertaken to exercise jurisdiction of the banks of the different States.. I shall, therefore, leave this branch of the subject, believing that the mere statement of the proposition is sufficient to establish its truth and soundness.

Starting, then, upon the discussion of this subject with the truth of the first proposition fully established, let us examine what the law of the State of New York is in relation to banks.

The Constitution of this State declares that "The Legislature shall have no power to pass any act granting any special charter for banking purposes, but corporations or associations may be formed for such purposes under general laws;" that "the Legislature shall have no power to pass any laws sanctioning, directly or indirectly, the suspension of specie payments by any person, association, or corporation issuing bank notes of any description;" that "the Legislature shall provide by law for the registry of all bills or notes issued or put in circulation as money, and shall require ample security for the redemption of the same in specie."