Page:North Dakota Reports (vol. 1).pdf/274

 questioned the right of the legislature in the exercise of police power to regulate, restrain and govern the business of banking. The relator, however, complains that § 27 does not merely regulate; it goes further, and prohibits individuals from banking in a private capacity. But the prohibition of private banking necessarily results from the inauguration of a banking system for the state, in which the business is made an exclusive corporate franchise; i. e., a business which can be carried on only by those who become incorporated, and are willing to subject their business to the restraints and safeguards found in the banking law under which they acquire the right to carry on such business. It would avail little, in our view of the matter, to provide salutary rules and wholesome safeguards for the business of banking when carried on by a corporation, if at the same time private persons, firms and corporations are permitted to carry on the business unhampered by such restrictions and safeguards. But, as a matter of precedent and authority, the legislative prerogative, in the exercise of its police power in promoting the public safety, not only to regulate and restrict the business of banking, but also to grant the right to one class, and to prohibit to others, or even to forbid it altogether, has never been questioned in the courts, and the legislatures of other states have frequently exercised the right of supreme control over the business.

Morse, in his treatise on Banking, (2d Ed. p. 1), uses the following language: “At common law the right of banking pertains equally to every member of the community. Its free exercise can be restricted only by legislative enactment; but that it legally can be thus restricted has never been questioned. After laws upon the subject have been passed, the business must be undertaken and conducted in strict accordance with all the provisions contained in them. It is not in its nature a corporate franchise, though it may be made such by legislation, and individuals may be prohibited from transacting it, either altogether in all its departments or partially in any specified ones. A law which forbids the carrying on of ‘any kind of banking business is a total prohibition against each particular department of the business, though conducted singly, and may be infringed equally