dissenting. — In the present case, my judgment leads me to a conclusion essentially different from that of my colleagues. I may remark, before entering'upoti the examination of the question, in the solution of which we differ, that on all the other points, I yield fiiy entire concurrence wdth the opinion expressed by the other members of the Court. Indeed, as to the point on which I dissent, I almost doubt whether my mind has been capable to comprehend the true bearings of this case;1 as it leads me to a conclusion, so opposite to that of those, for whose judgments I entertain the utmost respect.
The supposed inhibition of this transaction is, by the charter of the bank, expressed in these terms: “ The said bank shall not deal in articles of goods, wares or merchandize, in any manner whatever, unless it be to secure a debt due ■ said bank, incurred by the regular transactions of the same, as is provided for in this act.”
It is said, this clause cannot receive a literal construction, because that would prohibit the bank from purchasing those articles; essentially necessary to enable it to perform its appropriate functions; but I accord no weight whatever, to such an argument, inasmuch as it would be manifestly absurd, to call the purchaser of paper, buying solely for his own use, a dealer in stationery; as it likewise would be to insist, that providing wood for the comfort of a household, made the buyer a dealer in lumber. It seems to me, it would be difficult, if not to say impossible, to make use of language more clear, definite and expressive than that which is contained in this section. It cannot be de-' nied, that the words, buy and sell, are, at least, as common, and their meaning as generálly understood, as the word deal; nor can it be said that these terms are equivalent and convertible ; buying or selling, or both combined, may constitute a dealing; but to deal is not, necessarily, either a buying or selling. If the intention of this clause had been to restrict the bank, only to the extent of. buying and selling merchandize, I cannot but believe these words would have been used. ’ Instead of using these terms, the prohibition is, that the bank shall not deal in articles of goods, wares or merchandize. The author of the section, aware that the word deal, although the most compre*496hensive single word in our language, which could be applied to the subject matter, was, notwithstanding, capable of more significations than one, gives it the most unlimited extent by immediately adding, in any manner whatever; then, as if satisfied that the interest ofthe institution demanded, and that the public could not be prejudiced by an exception, he proceeds to annex the qualification, unless it be to secure a debt due to said bank; and still more certainly to make the exception with certainty, he specifies that it must, however, be incurred by, the regular transactions ofthe same; then, as if it were for the purpose of setting construction at defiance, he closes the section with, ‘ as is provided in this act.’
The effect of the construction given by a majority of the Court is, as it seems to me, to make this general prohibition, of dealing in merchandize in any manner ivhatever, a RESTRICTION to the extent only of dealing in merchandize by buying and selling it for the purpose of gain; or to the receiving of goods to be sold for the owner, for a profit or a commission. If no restriction beyond this was contemplated, I think very inapt terms have been used, to express the intention, and much difficulty of construction would have been avoided, by calling things by their proper and usual names.
The evils, to any community, are precisely the same, in my judgment, whether the bank entérs the market openly, as a purchaser of the staple of the country, or whether it comes in the capacity of an advancing agent. In either case, individuals must give place to the corporation, and, the more especially in such a case as this, where the terms of advancing were so liberal. If the bank possesses the authority to advance on cotton, it cannot be denied as to articles of prime necessity; and thus, by enabling speculators to engross a large portion, prices might be forced up to a most speculative and injurious extent. But a contemplation of the evils of such practices is more appropriate to the legislature, than to the judiciary ; therefore, and not because the subject is exhausted, I forbear further comment on it. If, however, I was to concede that the prohibition extended only so far as to inhibit the bank from buying for gain, or selling for the owner upon commission; it seems to me, that this transaction is nothing less than the selling of the cotton for the *497owner, and upon a stipulated commission to be paid by him. There is not a single stipulation in these articles, published by the bank, and which formed the basis of this contract, that is not of daily practice with commission houses in most of our cities. A commission merchant usually advances money, when required, on goods consigned to him for sale. He is resp onsible to his principal, for his own acts of omission, and improper conduct; and also for those of his agents, if he employs such. He is accountable for no losses, but such as arise from his own misconduct or mismanagement, or for the same acts in his agents, if he confides the property of his principal to them. And finally, he is entitled to receive the compensation he stipulates for;- or, if, no stipulation is made, to such as may be reasonable. The custom also is to allow interest from the period the proceeds come into his hands, and also the current rate of exchange. So likewise he is entitled to be refunded any excess of his advances over the nett proceeds of the property sold by him, or his agents. In every one of these particulars, the bank, by its contract,'assumes the precise responsibilities of the commission merchant. Those intrusted to sell the cotton in the foreign port, are not the factors of Bates, but agents appointed by the Bank, and for whose conduct the bank expressly stipulates to be held responsible. It is a sale, in my opinion, to all intents and purposes by the bank itself, acting through its agents. I do not perceive how or why, if this contract is a legal one, that the bank is not entitled to the compensation for which it has stipulated.
There is another view of this case which also seems to me to be decisive that it is a dealing in merchandize. If the cotton had remained unsold at the maturity of the bills, and they had been paid by Bates in Mobile; would he have been warranted in withdrawing the cotton from the custody of the bank, or its agents, after tendering expenses ? If the contract was a legal one, he would not, because it was one of the stipulations upon which the loan was made, that the. hank should be at liberty to sell it. The contract with respect to the cotton, then, remaining in force after the repayment of the loan, by what name is it to be called ? Again, suppose in this condition of affairs, it is destroyed by fire, and loss ensues, in consequence *498of the neglect of the agents of the bank to insure: is there anything in the charter of this bank to make it liable to Bates?
Yet once more; if there was a valid, subsisting right, existing in the bank to sell the cotton after the payment of the bills, and against the consent of Bates, what is there in the charter, to prevent the bank from contracting with Bates, either gratuitously, or for a commission, and without any loan of money, to sell his cotton in Liverpool, and become responsible for the acts of agents, with respect to it ? I confess I am unable to distinguish either of these cases, in a legal point of view, from the other, and neither of them from the case at bar.
In common with the other members of this Court, I entertain not the least doubt, but that the directors of the bank, who sanctioned this transaction, were influenced by a most earnest de-sheló advance the true interests of the institution, and the State at large; but the purity of intention cannot legalize an act which the charter expressly prohibits.
For these reasons, it is my opinion, that this transaction was a dealing in goods, wares and merchandize, against the positive prohibition of the 20th section of the charter of the bank; and, therefore, that the contract, and all securities, founded on it, are entirely void. The consequence, so far as this case is concerned, if - my opinion was to prevail, would be, that judgment on the demurrer ought to be entered for the defendants. But, if it is asked whether this leads to the conclusion, that the State, as the sole owner of the funds of the bank, must lose the deficiency between the sum advanced, and the proceeds o'f the cotton, (if there is such a deficiency,) I answer, no. It is true that a nullity of the contract grows out of its illegality, — for such, I understand to be the unquestionable law of all cases; but Bates cannot insist that the contract is void, and thus entitle himself to the money advanced to him. The illegal act of the directors of the bank, could invest him with no right to the money; and, as the State is the sole stockholder or owner of the bank, it is probable, an action would lie against him to recover it. It is not the question before the. Court; and therefore, it is only as to the consequences which flow from a decision, that it would be proper to inquire, whether a suit might be sustained in the name of the State, or of the bank. In my opinion, without the aid of con-*499testation or argument to test its correctness; I should be inclined to think, that either might sustain the action.
There would, probably, also exist another remedy. The bank is solely owned by the State, and its directors have no interest whatever in the ' capital stock; from this it results, that they are mere agents, acting under the special authority, which is contained in the provisions of the charter. So long as they confine their action, with regard to the funds of the bank, and its proper business, a discretion is confided to them ; but there are certain directions and prohibitions, to which, as agents, they are bound to conform their action; and, if they overstep the boundaries of their powers, and illegally dispose of the funds committed to their care, they are doubtless liable.for any losses which occur, in consequence of their violation of the charter. (Taylor v. Miami Exporting Co. et al. 5 Ohio Rep. 162.)