general assembly shall meet at the regular time, but gives it power to meet at another place if the governor proclaims the fact of insurrection.

There is nothing peculiar in the Constitution of Kentucky in this respect. On the contrary, similar provisions insuring the independence of the legislature from encroachment on the part of the other branches of the government are contained in the Constitutions of almost all if not all the other States in the Union. In none of the Constitutions of the other States is express power granted to the executive summarily to adjourn the general assembly while sitting in regular session at the seat of government, and to convene it at another time and a different place, when there is no disagreement between the two houses with respect to the time of adjournment. The Constitution of West Virginia, for example, provides, among other things, that "the legislature may when in session adjourn to some other place when in his [the governor's] opinion the public safety or welfare or the safety of the members or their health shall require it." That is to say, the legislature may when in session assemble at some other place provided the governor is of opinion that the public safety or welfare or the safety of the members or their health requires it. This is a limitation upon the power of the legislature when in session to adjourn to another place, and the legislative power in this respect is limited to a case in which the governor is of opinion that adjournment to another place is necessary. Even in such case, however, the legislature may still, in the exercise of its discretion, consider it unnecessary to adjourn to some other place, and there is nothing in the Constitution of West Virginia, as there is nothing in the Constitution of Kentucky, authorizing or empowering the governor in such case by force of arms summarily to adjourn it, and convene it at another place.

These views are justified and the correctness of them borne out, not only by a historical consideration of the nature and extent of the legislative and executive powers of the government generally, but also particularly by a careful examination of the scope and meaning of the other provisions of the Constitution of the commonwealth.

Thus, section 41 of the Constitution of Kentucky is: "Neither house, during the session of the general assembly, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which it may be sitting." This section is almost word for word the same as the clause in the Constitution of the United States, which provides: "Neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting." Says Story: "It is observable that the duration of each session of

congress (subject to the constitutional termination of their official agency) depends solely upon their own will and pleasure, with the single exception, as will be presently seen, of cases in which the two houses disagree in respect of the time of adjournment. In no other case is the president allowed to interfere with the time and extent of their deliberations. And thus their independence is effectually guarded against any encroachment on the part of the executive. Very different is the situation of parliament under the British Constitution, for the king may, at any time, put an end to a session by a prorogation of parliament, or terminate the existence of parliament by a dissolution and a call of a new parliament. It is true that each house has authority to adjourn itself separately; and this is commonly done from day to day, and sometimes for a week or a month together, as at Christmas and Easter, or upon other particular occasions. But the adjournment of one house is not the adjournment of the other. And it is usual, when the king signifies his pleasure that both or either of the houses should adjourn themselves to a certain day, to obey the king's pleasure, and adjourn accordingly; for otherwise a prorogation would certainly follow. Under the colonial governments the undue exercise of the same power by the royal governors constituted a great public grievance, and was one of the numerous cases of misrule upon which the Declaration of Independence strenuously relied. It was there solemnly charged against the king that he had called together legislative [colonial] bodies at places unusual, uncomfortable and distant from the depository of the public records; that he had dissolved representative bodies for opposing his invasions of the rights of the people, and after such dissolutions he had refused to reassemble them for a long period of time. It was natural, therefore, that the people of the United States should entertain a strong jealousy on this subject, and should interpose a constitutional barrier against any such abuse by the prerogative of the executive. The State constitutions generally contain some provision on the same subject, as a security to the independence of the legislature." So, also, it may be as truly said that the duration of each session of the legislature of Kentucky (subject to the constitutional termination of their agency) depends solely upon their own will and pleasure, with the single exception of cases in which the two houses disagree with respect to the time of adjournment. In no other case is the executive allowed to interfere with the time and extent of their deliberations.

So, also, when the framers of the Constitution provided that every order, resolution or vote in which the consent of both houses might be necessary should be presented to the governor for his approval or disapproval, except on a question of adjournment, they thereby meant to leave the

duration of each session of the general assembly (subject, of course, to the constitutional limitation of sixty days) dependent solely upon their own will and pleasure, with the single exception mentioned in section 80 in case of a disagreement between the two houses with respect to the time of adjournment. They obviously had in mind and meant to give effect to the principle which they had just declared, that no person being of one department of the government should exercise any power properly belonging to either of the others; that is to say, the question of adjournment of the general assembly being a legislative question, the governor, being of the executive department of the government, should not exercise the power of adjournment, which properly belongs to the legislature. So the Court of Appeals of Kentucky, which is a branch of the government of the commonwealth co-ordinate with the general assembly and the executive, is by the Constitution also required to be held at the seat of government, and if that shall become dangerous in case of war, insurrection or pestilence, the court may, in its own discretion, and without any action on the part of the executive, adjourn to meet and transact its business at such other place in the State as it may deem expedient for the time being

Section 80 of the Constitution of Kentucky provides that "he [the governor] may, on extraordinary occasions, convene the general assembly at the seat of government, or at a different place, if that should become dangerous from an enemy or from contagious disease: in case of a disagreement between the two houses with respect to the time of adjournment. he may adjourn them to such time as he shall think proper, not exceeding four months: when he shall convene the general assembly it shall be by proclamation, stating the subiects to be considered. and no others shall be considered." The Constitution of the United States contains a similar provision, that the president "mav. on extraordinary occasions. convene both houses, or either of them, and, in case of a disagreement between them with respect to the time of adjournment. he may adjourn them to such time as he shall think proper." As Storv savs with respect to the National Constitution, this power to adjourn the legislative body in cases of disagreement is indispensable, since it is the only peaceable way of terminating a controversy, which can lead to nothing but distraction in the public councils. The provision in case of a disagreement between the two houses with respect to the time of adjournment constitutes a limitation upon the power of the executive to adjourn the legislature. If there is no disagreement between the two

houses in this respect the governor has no power to adjourn them.*

The Constitution of Kentucky provides for the regular sessions of the general assembly. These must be held on the first Tuesday after the first Monday in January, and cannot be held at any other time.

But the necessity and propriety of their assembling oftener than at these stated periods on extraordinary occasions is left by the Constitution entirely to executive discretion. This discretion is wisely lodged in the governor of the commonwealth, who is presumed to be well advised when an extraordinary occasion has arisen which demands prompt legislative action. With the exercise of this discretion up to the time of convening the legislature no one can interfere. The whole matter is left entirely to the will of him who for the time being is invested with the executive authority of the State. When, however, the general assembly has met, pursuant to the mandatory requirements of the Constitution, on the first Tuesday after the first Monday in January, and its session is being regularly held at the seat of government, the governor has no power or authority under the Constitution on his own motion to issue a proclamation summarily adjourning the general assembly and convening it at another time and a different place, when there is no disagreement between the two houses with respect to the time of their adjournment. The governor of the commonwealth of Kentucky can no more suspend the operation of that constitutional provision, which requires the general assembly to convene at the time named, than he can revoke or suspend any other constitutional requirement. He can no more revoke that constitutional provision than he can take away from the Court of Appeals of Kentucky the jurisdiction conferred upon it by the Constitution. The executive cannot revoke an organic law or take away a right, and any attempt to do so is an act of usurpation.

When, on February 13, 1688, the lords and commons, representing all the estates of the people of the realm, assembled at Westminster and presented to William and Mary the Bill of Rights, they therein affirmed and asserted the rights and liberties of the British people, and now in the United States this Bill of Rights has been incorporated with the Constitutions of nearly all the States, including the State of Kentucky. The

*It may be noted in passing that the last clause of the section requires that when the governor shall convene the general assembly it shall be by proclamation, stating the subjects to be considered, and no others shall be considered. In the proclamation above quoted there is no statement of the subjects to be considered by the general assembly at the session ordered to be held at London on February 6. As the requirement of the Constitution is that no other subjects shall be considered than those stated in the proclamation convening the legislature, it would seem that the general assembly when thus convened would be without the power under the Constitution to consider any subjects of legislation whatever, even assuming that the action of the governor was authorized by the Constitution when he summarily adjourned the general assembly while sitting in regular session at the seat of government, and convened it at another time and a different place.

ancient Bill of Rights, after reciting that James the Second, by the assistance of evil counsellors, judges and ministers employed by him, had endeavored to subvert and extirpate the laws and liberties of the kingdom by assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without the consent of parliament, declared that the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, was illegal, and also that parliaments ought to be held frequently.

And when, less than a hundred years later, it became necessary for the people of the American colonies to dissolve the political bands which connected them with the State of Great Britain, and to publish to the world that the United States were and ought to be free and independent States, their statement of the causes which impelled them to the separation was set forth in the Declaration of Independence. They then and there declared that the history of the king of Great Britain was a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny of the States; and that the long train of abuses and usurpations, pursuing invariably the same object, evinced a design to reduce them under absolute despotism. To prove this they submitted the facts. Hear what they said: "He [the king of Great Britain] has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures. He has dissolved representative houses repeatedly for opposing, with manly firmness, his invasions on the rights of the people. He has refused, for a long time after such dissolutions, to cause others to be elected, whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without and convulsion within."

And, finally, when the representatives of the people of the two score States forming the American Union respectively met in convention and framed their Constitutions, and solemnly declared in their bill of rights that their general assemblies should meet frequently, and that no power to suspend laws or the making of laws should be exercised unless by their general assemblies or their authority, and divided the powers of their governments into three • distinct departments, and confined each department to a separate body of magistracy, and commanded that no person being of one of those departments should exercise any power properly belonging to either of the others, it may well be said, in the language of the great jurist now gone before, that they entertained a strong jealousy on these subjects, and accordingly interposed consti

tutional barriers against the recurrence of any such abuse by the prerogative of the executive. LUCIUS LAMAR.

195 BROADWAY, NEW YORK, February, 1900.

INSOLVENT BANK.

WITHDRAWAL OF MONEYS ON INFORMATION OBTAINED THROUGH ONE OF ITS DIRECTORS.

NEW YORK COURT OF APPEALS.

Decided February 6, 1900.

MILES M. O'BRIEN et al., Rec'rs, &c., Respondents, v. EAST RIVER BRIDGE Co., Appellant. A corporation having money on deposit in a failing bank, upon being informed of its condition by the president of the corporation, who is also a director of the bank, may withdraw its deposit on the day of failure.

The fact that the corporation acts upon information imparted to it by its president, who had gained it through his relations with the bank as one of its directors, does not bring the transaction within the condemnation of section 48 of the Stock Corporation Law, which prohibits officers and directors of an insolvent corporation from using their knowledge of its condition to secure their own claims, or the corporation from making preferential transfers of its property.

Appeal from an order and judgment of the Appellate Division, First Department, reversing a judgment entered upon the report of a referee dismissing the plaintiff's complaint upon the merits and granting a new trial.

Eugene Treadwell for appellant; Louis Marshall and Samuel Untermyer for respondents.

O'BRIEN, J. The plaintiffs, as receivers of the Madison Square Bank, brought this action to compel the defendant to account and pay over to them $50,000 which the defendant had deposited in the bank, but drew out by check on the day the bank closed. The cause was tried before a referee, who dismissed the complaint, but this judgment has been reversed by the Appellate Division. The facts upon which the judgment depends are undisputed. They are fully stated in the learned opinion below, and that statement can be very safely adopted as it there appears:

On the 8th of August, 1893, the defendant was a depositor in the Madison Square Bank, and it had standing to its credit on the books of the bank on that day the sum of $50,000. As to that amount, the ordinary relation of debtor and creditor, and no other, existed between the bank and the depositor. On the night of the 8th of August, 1893. it became known to Frederick Uhlman, a director of the Madison Square Bank and also the president of the East River Bridge Company, that the bank

was insolvent, or in imminent danger of insolvency, and that it would be closed the following day. Frederick Uhlman also knew that the St. Nicholas Bank was the agent at the clearing house of the Madison Square Bank, and that on the 8th of August, 1893, the St. Nicholas Bank had in its possession a large amount of securities belonging to the Madison Square Bank, and that it held such securities as collateral for any and all obligations | as agent of the Madison Square Bank. He also knew that the St. Nicholas Bank had notified the clearing house that it would cease to act for the Madison Square Bank, and that the St. Nicholas Bank, by the rules and regulations of the clearing house, was responsible for all checks of the Madison Square Bank that would be presented at the clearing house in the exchanges on the morning of the 9th of August. All this knowledge was acquired by Frederick Uhlman as a director of the Madison Square Bank. On the night of August 8th Simon Uhlman, who was largely interested in the stock of the East River Bridge Company, learned of the imminency of insolvency of the Madison Square Bank and that it would probably be closed the following morning. Thereupon he caused a check to be filled up, drawn upon the Madison Square Bank, for $50,000, and took it to the treasurer of the defendant at Brooklyn, where it was signed by such treasurer at about 11 o'clock at night. That being done, Simon Uhlman returned to New York city with the check and handed it to Frederick Uhlman, who also signed it as president of the East River Bridge Company and retained it in his possession over night. Early on the morning of the 9th of August Frederick Uhlman took the check to the Hanover National Bank, and instructed the authorities of that bank to have it presented at the clearing house that morning, so that it might be paid by the St. Nicholas Bank in the exchanges of that morning and thus be credited to the East River Bridge Company, and a withdrawal effected of so much from the funds and moneys or securities of the Madison Square Bank under the control of the St. Nicholas Bank. The check was presented at and passed through the clearing house. The East River Bridge Company received a credit with the Hanover Bank, and thus the transfer of the $50,000 was completely made from the Madison Square Bank to the defendant. The Madison Square Bank was closed on the morning of the 9th of August, or, more properly speaking, was never opened for business after the 8th, and went into insolvency."

There is no dispute about the facts, nor are they open to different inferences. The only question is with respect to the law, or, in other words, whether the transaction was forbidden by the statute, since the judgment is reviewable in this court, notwithstanding the statement in the order that the reversal was upon the law and the facts.

The only authority claimed in behalf of the plaintiffs to sustain the judgment is section 48 of the Stock Corporation Law, which reads as follows: "No corporation which shall have refused to pay any of its notes or other obligations when due, in lawful money of the United States, nor any of its officers or directors, shall transfer any of its property to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any other consideration than the full value of the property paid in cash. No conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, director or stockholder, when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation, shall be valid. Every person receiving by means of any such prohibited act or deed any property of the corporation shall be bound to account therefor to its creditors or stockholders or other trustees. No stockholder of any such corporation shall make any transfer or assignment of his stock therein to any person in contemplation of its insolvency. Every transfer or assignment or other act done in violation of the foregoing provisions of this section shall be void."

It will be seen that the money drawn from the failing bank belonged to the defendant, and the check drawn against the deposit was the check of the defendant. The defendant's president being also a director in the failing bank, owed certain duties to the defendant and its shareholders and creditors, as well as to the bank, its shareholders and creditors. It is obvious that the judgment of reversal cannot be sustained without holding that the two following propositions are law:

(1) That the statute quoted forbids a director in a bank who has knowledge of its insolvency from communicating this knowledge to a depositor, even though the depositor happens to be a corporation in which the director is interested, and of which he is president.

(2) That the statute forbids a corporation having money on deposit in a bank about to fail from drawing its check against the deposits, on learning that the bank was about to fail from a director of the bank, who was also president of the corporation, and communicated the knowledge to the latter with the intent that it should draw out the money. The language of the statute does not support either of these propositions, and it would be judicial legislation simply to hold that they are within the intention and purpose of the law. We must not only produce by judicial construction a new law, but a law which could not have been within the intention of the legislature. The statute is in derogation of the common law and should