And the restrictions of the constitution cannot be avoided simply by enacting a law failing to provide for one of the three functions. Therefore Laws 1895, c. 145, is unconstitutional. Every institution incorporated for the primary purpose of receiving deposits and discounting paper possesses the incidental power to issue, and therefore must be within the restrictions of the constitution. At the time of the adoption of the constitution bank-paper was not a legal tender, it was merely their due bill or promise to pay. In many places on the frontier, especially at that time, the circulating medium was furnished by the due bills of some lumber, iron or other company. The right to issue a due bill or demand note is no special privilege, but is inherent in every natural person. If express authority is necessary to warrant the issue of notes as a medium of exchange, then there never was a note legally issued by any state bank in Minnesota. No law authorizing such issue has ever been enacted in Minnesota. For nearly ten years after the law of 1858 banks in this state issued bank notes. If that was a lawful exercise of power, then it should be the same now, for the same powers are conferred on banks of discount and deposit by Laws 1895, c. 145, § 3, subd. 7, as were conferred on banks by the law of 1858. Subdivision 3 of section 13 of art. 9 of the constitution also clearly implies that all banks have the right to issue notes. The language clearly declares that all banks possess the power to issue and the liability should attach to those which avail themselves of the power.

But if this court is to adhere to its decision in International v. American, 62 Minn. 501, then we contend that if the law of 1895 is to be held applicable to the Bank of Minnesota, the law is unconstitutional. Chapter 33 of the General Statutes was originally enacted in 1858, Laws 1858, c. 32. The title of the act was "An act to authorize and regulate the business of banking." Thirty of its forty-five sections pertain directly to the issue of circulating notes, and the powers given in the original act were identical with the powers given to the bank in question, save that in 1876 the power was given to traffic in promissory notes, etc. The power to issue circulating notes is given by section 4 (G. S. 1894, § 2484). All banks then organized under chapter 33 have the power to issue notes, and the grant of

such power constitutes a contract between the state and the stockholders of such bank which cannot be impaired by legislation. But if the law of 1895 is to be held applicable to all banks doing business in the state, then the right to issue circulating notes has been taken away, if not expressly then by necessary implication. See section 29. But if this right has been taken away, under the Dartmouth College case the contract obligation with the state has been impaired and such an act transcends the power of the legis lature. To contend that this privilege has been practically taken away by the federal bank tax is to invoke the doctrine of non-user. But a statute cannot be repealed by mere failure to operate under it. Nothing short of a statute can repeal a statute. Potter's Dwarris, St., 154; White v. Boot, 2 T. R. 274. If the federal tax were removed the right of issue becomes valuable and the legis lature has no power to take it away. If the legislature can provide for banks of a kind not intended by the constitution, it cannot take away such privilege from existing banks. State v. Knoop, 16 How. 369; Planters v. Sharp, 6 How. 301. Section 5 of the act of 1895 provides for but a single liability of stockholders. As to creditors of the bank who were such prior to that act the law of 1895 is invalid. Hawthorne v. Calef, 2 Wall. 10, 22, 23; 3 Thompson, Corp. § 3040.

The authority given to the superintendent of banks by section. 20 of the act of 1895 to take summary proceedings against banks is clearly in violation of Const. art. 1, §§ 2, 7. In the national bank act similar authority given to the comptroller of the currency is carefully guarded. See R. S. (U. S.) §§ 5226, et seq. The act of 1895 is a menace to rights guarantied by the constitution. State v. Billings, 55 Minn. 467, 473; Bardwell v. Collins, 44 Minn. 97; Wilson v. Red Wing, 22 Minn. 488; Baker v. Kelley, 11 Minn. 358 (480).

The act of 1895 is unconstitutional because the subject of the act is not embraced in the title. By prior decisions of the court the right to issue is a special privilege or artificial right which must be expressly conferred upon banks and was conferred by chapter 33 of the General Statutes, while the right to receive deposits and to discount is a natural right. A statute then which

by its title aims to regulate institutions exercising only the natural right to discount and to receive deposits would give no information that it was likewise intended to diminish the liability of stockholders in banks having the right to issue. Mississippi v. Prince, 34 Minn. 79.

The act of 1895 is inapplicable to the Bank of Minnesota and to banks existing prior to its passage, so far as the liability of stockholders in such banks and its enforcement are concerned. The language of section 5 of that act refers only to banks organized under its provisions. Hence the liability of the stockholders of the Bank of Minnesota is the same as before the act of 1895. But under the decision in Minneapolis v. City Bank, 66 Minn. 441, receivers have no power to enforce stockholders' liability unless expressly given power by statute. The authority given by section 20 of the act of 1895 must be limited to receivers of banks organized under that act, unless the language of the act clearly shows the contrary intention. But there is no such language in the act. How can these receivers successfully contend that the liability of these stockholders is double when their only authority to proceed against these stockholders is this act of 1895?

No authority has been found holding that when power to enforce this liability is given to a receiver it is exclusive in him. In New York the intent of the act of 1852 was to take away from the creditors the right to sue the stockholders and devote the fund obtained from payment of the liability of stockholders to the payment of debts pro rata. Walker v. Crain, 17 Barb. 119. But the object sought in New York had already been secured by chapter 76 of. the General Statutes. See Hewett v. Adams, 50 Me. 271, 282.

The language of Laws 1897, c. 341 (an act passed immediately after the failure of several large banks), that, if no action by creditors against stockholders of an insolvent corporation shall have been begun under chapter 76 within six months after the failure, it shall be the duty of the assignee or receiver to begin such action, must have been intended to apply to banks. There is no reason for extending its benefits to other corporations and denying them to banking corporations. The language used indicates that unless creditors exercise their right to begin such action within six months

they lose the right. The law of 1897 went into effect before this case was argued in the lower court. It is an act regulating procedure. Such an act has a retrospective application, affecting past and pending transactions as well as those in the future. Sutherland, St. Const. § 482; Tompkins v. Forrestal, 54 Minn. 119; Pritchard v. Savannah, 87 Ga. 294; Hepburn v. Curts, 7 Watts, 300; McLimans v. City, 63 Wis. 596; People v. Tibbets, 4 Cow. 384; Kimbray v. Draper, L. R. 3 Q. B. 160.

Millard F. Bowen and John Hay, attorneys for certain creditors in a similar case against the stockholders of the City Bank, by consent filed a brief for the appellant.

The liability of the defendant stockholders to creditors is in an amount equal to double the amount of stock owned by each. This liability is that provided in Const. art. 9, § 13, and G. S. 1866, c. 33, § 21 (G. S. 1894, § 2501). Const. art. 9, § 13, has not been repealed or amended, and state banks can be organized in Minnesota only by conforming to its provisions. There is no other provision in the constitution regulating banking business or banks. Banks of discount and deposit are expressly excluded from the terms of Const. art. 10, § 1.

In the territory of Wisconsin incorporated companies were prohibited from receiving deposits, making discounts or issuing notes, unless authorized by law. Wis. Statutes, 1839, p. 145, § 1. This law was in force until 1849. In that year it was continued in force in Minnesota by virtue of section 12 of the act establishing the territorial government of Minnesota. The Wisconsin act became Laws of Minnesota 1849, c. 54. The law was repealed by the repealing act of R. S. 1851, c. 137, § 1. Revised Statutes 1851 contained no reference to banks except in section 56 of chapter 39 and section 21 of chapter 40. These chapters were copied verbatim from Wisconsin and, in accordance with the Wisconsin law, prohibited banks. After this repeal the territory of Minnesota had no banking law. Wisconsin, after a popular vote in favor of a banking law, adopted a general banking law pursuant to Wis. Const. art. 11, § 4. Wis. Laws 1852, c. 479. This is the act referred to in the debates of our constitutional conventions. Many of the provisions of this act were incorporated in the Minnesota constitution and in

Minn. Laws 1858, c. 32. For the construction of the Wisconsin constitution on this subject, see State v. Hastings, 12 Wis. 596.

If the legislature takes any action, it must pass a general banking law containing the constitutional restrictions. But if it can pass a special law, such law must be in accordance with the constitutional limitations.

Laws 1895, c. 145, is unconstitutional not only because it does. not comply with the requirements of the constitution, but because it is class legislation. It is not the less a special law because it applies to many corporations to be organized under it. State v. Cooley, 56 Minn. 540, 549. Placing banks of discount and deposit in a class by themselves is not a constitutional classification because not based upon substantial distinctions. Mere subtraction of powers and functions does not and cannot make another class. Classification must be based upon some natural reason--some difference in situation and circumstances suggesting the necessity of different legislation. The banks of the constitution have all the power of banks organized under the law of 1895 and the additional right to issue notes. Such difference does not suggest the propriety of different legislation as to the liability of stockholders. The attempt in section 29 to make the law apply to all banks is proof that the provisions of the act do not necessarily relate to particular members of the class but apply to all banks.

The provision of Laws 1858, c. 32, § 10, that persons "may establish offices of discount, deposit and circulation and become incorporated" has never been repealed or amended, and is in force today, unless changed by the law of 1895. G. S. 1866, c. 33, § 10; G. S. 1894, § 2490. The section was amended in 1881, 1883, 1887 and 1893, but the provision for the incorporation of banks of "discount, deposit and circulation" was not modified. That provision has been the law of this state for nearly forty years. The powers of such a bank were contained in Laws 1858, c. 32, § 13; G. S. 1866, c. 33, § 13; G. S. 1894, § 2493. This section was amended in 1869 and 1876. It has not been repealed or affected unless by the law of 1895, and we contend it has not been repealed by that law. Chapter 33 of the General Statutes is a general banking act. That is the construction of this court. Dana v. Bank, 4 Minn. 291 (385);