dissenting:
I do not concur in the conclusion reached by this decision. A second jury have decided that the defendant is guilty of the charge made against him. He has been tried twice and twice found guilty. We reversed the judgment rendered against him ■on the first trial solely upon the ground that the trial court excluded certain evidence, which might have operated to miti•gate the extent of his punishment. (Sykes v. People, 127 Ill. 117). The present opinion reverses the second judgment upon :a mere technicality. That technicality has reference to the name of the Bank which the prisoner defrauded, and does not seem to me to warrant the result arrived at by the majority of the court.
The indictment charges the defendant with having defrauded “‘the Merchants’ Loan and Trust Company, the same then and there being a corporation organized and incorporated under and. by virtue of the laws of the State of Illinois.” The words “organized and incorporated under and by virtue of the laws, of the State of Illinois” are mere surplusage. It is not essential that that which is surplusage should be strictly proved. It was sufficient to show that the institution defrauded was a. corporation. (Wallace v. The People, 63 Ill. 451).
But let it be admitted that the State’s Attorney was bound by the language of the indictment to prove the organization and incorporation of the Bank under and by virtue of the laws of the State of Illinois; he did furnish such proof. He produced the original charter issued by the Legislature in 1857 to the Bank under the name of the “Merchants’ Savings Loan and Trust Company,” and then introduced the proceedings under the Act of March 26,1872, changing the name from the-“Merchants’ Savings Loan and Trust Company” to the “Merchants’ Loan and Trust Company.” The latter Act by its-terms authorized such change of name, nor is it pretended that, the proceedings taken to effect such change were not in strict accordance with the requirements of the Act. The charter of 1857 was a law of Illinois; the Act of 1872 was a law of Illinois. Therefore, the evidence showed that the defrauded Bank was “organized and incorporated under and by virtue of the laws of Illinois.”
It is said, however, that the act of 1872 was unconstitutional as applied to banking corporations because it authorized amendments to banking laws without submitting such-amendments to the votes of the People. This may. be true, but such a consideration is entirely immaterial in this case.
The indictment averred that the Bank was organized under 'the laws of Illinois, not that it was organized under consti- • tutional laws of Illinois. It was .sufficient that the corporation defrauded should have been’proven prima facie to be a defacto corporation, and its defacto character was established -when it was shown to have been organized in accordance with existing statutes, whether such statutes should or should not he held to be constitutional in proceedings instituted to test that question.
The evidence shows that the defendant dealt with the bank under the name of the “Merchants’ Loan and Trust Company, ” borrowed money of it under that name, executed notes to it under that name, issued the warehouse receipts to it under that name: he is estopped from denying that it had such a name as he himself had already recognized and assented to by his conduct and repeated acts.
The question whether the bank has been doing business under a legal or illegal name, or in other words, the constitutionality of the Act of 1872, cannot be raised in this collateral suit. It can only be determined by a quo warranto proceeding. (Hinze v. People, 92 Ill. 406).
It makes no difference what technical rules in regard to indictments of this character may have been laid down in England or in other States. The statute of this State is our guide. The “Act to revise the law in relation to quo warranto,” approved March 23, 1874, in force July 1, 1874, (Starr & Cur. vol. 2, page 1871, chap. 112, sec. 1) provides for the institution of a quo warranto proceeding by the Attorney General or the State’s Attorney of the proper county, in case “any association or number of persons shall act within this State as a corporation without being legally incorporated, or any corporation * s * exercises powers not conferred by law. ”
The “Merchants’ Loan and Trust Company” is an association which has been and is acting in this State as a corporation. The opinion of the majority assumes to decide that it has been acting without being legally incorporated. In a quo warranto proceeding as the statute directs ? No, in a collateral suit, to-wit: a criminal prosecution against a man for defrauding that association out of money by issuing to it fraudulent warehouse receipts. The opinion also decides, in such collateral proceeding, that the Merchants’ Loan and Trust Company is exercising the power as a corporation of doing business under an illegal name, that is to say, is exercising as a corporation a power not conferred by law. Is there any such proceeding before us as authorizes us to make any such decision as this P In giving the defendant the advantage of á trifling variation in nomenclature, are we not in effect trying a defrauded bank in violation of law ?
The wisdom of the rule that the legality of a corporation or the legality of a power exercised by it can only be tested in a' quo warranto proceeding, as such rule is laid down in Barnes v. Suddard, 117 Ill. 237 and other cases, may be illustrated by the consequences likely to flow from the present decision. It is an axiomatic principle of law that no person or corporation can be deprived of his or its rights without a day in court or a chance to be heard. In the quo warranto act, provision is made for issuing process, and serving the same upon the corporation, whose existence or powers are attacked. The latter may come in and answer and make defense. . But such right of defense is cut off where the validity of the corporation is passed upon collaterally. In the present case, the Merchants’ Loan and Trust Company is nót a party to the proceeding. This is a suit between the State and Sykes. And yet the rights of the bank are adjudicated upon, and its corporate organization is declared to be invalid, without its presence in court and in the absence of any opportunity on its part to be heard in its own behalf. Is not this rank injustice ? The legality of the incorporation of the bank is not a matter that concerns Sykes—it is a matter to be decided between the People and the bank in a proper proceeding instituted for that purpose.
The powers of the Attorney General and of the State’s Attorneys are defined by law. Among such powers is the right to test the legality of corporate existence or corporate action by quo warranto. These officials are not given the right to make such test in any other proceeding. In the suit by quo warranto the State’s Attorney must represent the people as against the offending corporation. Here, however, the State’s Attorney is forced to take the part of á bank against the people by defending a corporation alleged to have been illegally organized, and he is compelled to assume such attitude in the effort to sustain a criminal prosecution in behalf of the State for the issuance of false and fraudulent warehouse receipts.
Do we not by this decision say, in effect, to the plaintiff in error: “You have been convicted a second time of defrauding a bank out of more than $10,000.00, but inasmuch as the name of the bank contains two syllables less than it ought to have, the judgment against you is set aside?”