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Thomas y. Dakin. 2. It does not in spirit extend to this case ; for the safeguard of a two-third vote is as much secured and obtained where a bill creates or authorizes many bodies corporate, as where it creates or authorizes one only.
3. This act, in this point of view, is to all intents the same as if it created by name all the associations that should be formed under it.
4. The continued legislative construction from the adoption of the constitution to this day, shows that the prohibitory clause does not reach this case : if it did, the joint rule of the senate and assembly on this subject would be supererogatory and idle.
5. The creation or authorization of more than one body corporate in one and the same bill, is a question of “discretion and expediency,” not of power.
V. No judicial tribunal will declare void a legislative act, except in a case where there can be no rational doubt ; such declaration being an exercise of the highest attribute of absolute power. In this case were there great and serious doubts as to the validity of the law, the terrific and all pervading public distress that would result from its being judged void, should, on every salutary principle, turn the scale.
He argued that in point of form the declaration was strictly and technically correct, and was in precise conformity to the act; Statutes of 1833, p. 260, $ 21; that it laid the indebtedness and the promises as they existed in fact, and it referred sufficiently to the act to show that the suit was properly brought in the name of the plaintiff. The plaintiff is merely a trustee or representative ; and as a general rule, in declaring in such cases, the promises should be laid to the party represented, as in the case of executors, assignees of insolvents, and the like. 1 Chit. Pl. 15, 16. 2 id. 51. Gould's Pl. 172, 3. Some of the special causes of demurrer assigned proceed on the ground ihat the act in question is invalid as authorizing a suit to be brought in this manner; but it has not been seriously argued that the legislative power is not competent to prescribe in what manner or in whose name suits may be brought, or to permit the institution of a Thomas v. Dakin. suit in behalf of an association of persons, or of a number of ' persons in the name of one of them.
It is also assigned specially as cause of demurrer, that the act in question was not in fact passed by a two-thirds vote; but this point was not pressed on behalf of the defendant in the argument. It is by no means conceded that any act contained in the statute book, and duly authenticated, can be alleged in pleading, or shown in evidence, not to be a law, that is, not to have been passed. The evils that would arise from thus permitting parties to unsettle the whole statute book would greatly overbalance any injury that could possibly result from regarding the statute book as conclusive evidence of the existence of the laws found in it. But however this may be, it will, it is hoped, be shown in the course of the argument on the part of the plaintiff, that the act in question did not require a two-thirds vote, whether it actually received such vote or not.
The associations authorized by the act are not “ bodies corporate” within the constitutional meaning of the term. Const. art. 7, $ 9. The constitution, so far as the clause in question is concerned, went into operation on the Ist March, 1822, and the term “bodies corporate," therein used, is of course to be referred to the legal existence then known by that name. Art. 9, $1. Among the essential qualities and attributes of a body corporate as then existing were the following: It must have a name, and by that name alone must sue and be sued, and do all other legal acts. 1 Black. Comm. 474. Burns L. D. tit. Corp. 192. It must grant and receive by its corporate name; and the name is the very being of its constitution. 10 Co. 122. Gilb. Hist. C. P. 183. It must have a common seal. It has an inherent power to make by-laws or private statutes. 1 Black. Comm. 475. These are declared to be the "essential incidents” of every corporation, but they are all wanting here. These associations have no name by which to sue or be sued—to grant or receive—or to do any legal act—but all this is to be done in the individual, personal name of him who is president for the time being ; Sect. 21, 22, 24; and he is thus made personally and in his individual character, the agent, representative and trustee of the persons associated with him. They
Thomas v. Dakin. have no common seal. They have no power, by the provisions of the act, to pass by-laws. No title to property can vest in the association as such ; it vests in the person who is president, as trustee of his associates ; they are therefore not an artificial person, as corporations are properly denominated. A vacancy in the office of president would suspend suits by and against him; and this is totally repugnant to the idea of a corporation. Though these associations possess some of the incidents of corporations, they are destitute of others, which from the earliest periods of the common law, since such artificial beings have been recognized as existing, have been deemed as entering into their very constitution and essence, and have been inseparable from any definition or description ever given of them. They do not, then, fall within that class of legal existences recognised and known, at the time the clause in question went into effect, by the well understood and well defined term of bodies corporate.'
The exemption of the associates from personal responsibility does not render the associations corporations; for this is an exemption existing equally in the case of special partners; nor do they derive a corporate character from the stock being declared personal property, and being made transserable ; for it will not be denied that the legislative power could, for all legal purposes, declare real estate to be personal property, and might render the property of any copartnership or individual transferable in the manner authorized by this act. The power to fix the period during which the partnership, fellowship or union may continue, does not per se convert them into corporations ; for so far as the constitutional question now under consideration is concerned, the legislature is not inhibited from granting to two or more individuals, their heirs and assigns, the privilege of doing certain acts, or carrying on a certain business for fifty or for five hundred years, and prescribing the mode in which title shall be made by those claiming as heirs or assigns for centuries to come. Such an act might be impolitic and unwise—even ridiculous—but the constitutional power of the legislature to passs it is not to be questioned. Yet it Thomas v. Dakin. is this power to fix the duration of the associations that is mainly relied on to prove them “ bodies corporate.” They more nearly resemble limited partnerships: there the special partner is not personally responsible; quoad him, the fund only is liable ; suits are to be by and against the general partners, and they are the representatives and trustees of the special partners, as the presidents of these associations are of their individual associates.
The act in question is “an act to authorize the business of banking,” and to effect this object, this anomalous species of union was devised. It was a repeal of existing restrictions-a permission to do what was before prohibited, and the various provisions of the act are to be regarded only as regulations, prescribing the mode in which the business now unrestrained should be conducted.
Should the court adjudge these associations to be “bodies corporate,” it is manifest that they will do so in express violation of the intention of the legislature, and they will invest them with a character and a name, which those who created them, not only did not design, but expressly repudiated. Ass. Doc. 1838, No. 122. Joint Rules Ass. & Sen. No. 8. And surely, in a matter of this grave import, a judicial tribunal should hesitate in declaring that the legislative department has done that, which they did not intend to do and expressly declared they had not done. But, assuming these associations to be “bodies corporate," it cannot be said that the act creates a body corporate : the most that can be alleged is, that it authorizes their subsequent creation by voluntary individual association. The act then clearly is not within the letter of the inhibitory clause of tire constitution. Is it within its spirit? At the time of the framing and adoption of this constitution, two modes of creating or forming corporate bodies were in existence and use, and familiarly known : 1. By direct action of the legislature, by bill creating by name one or more of them; 2. By voluntary association under general laws then in force. These latter were numerous and diversified in their objects; 1. Colleges and academies ; 2. Religious societies; 3. Library associations ; 4. Medical Thomas v. Dakin. societies; 5. Manufacturing corporations. 3 R. S. passim. It is conceded by all, that these general acts were not abrogated by the constitution, though that instrument provides for the abrogation of all laws repugnant to it. Art. 7, sec. 13. Such has been the uniform construction given by the legislature for seventeen years, and the whole people for seventeen years have acted on it.
These general acts, then, and this general mode of creating corporations were not repugnant to the constitution, and were not abrogated by it. Under these acts, and in this mode, not less than eight hundred corporations have been formed since the present constitution became the fundamental law of the state. It can with little justice be argued if these laws and the right to act under them were left unaffected by the constitution, and were not reached by its abrogatory clause, that the legislative power to provide similar means in reference to subjects-matter deemed by the legislature equally innocuous, or equally worthy, was affected by that instrument. If it left in full force existing legislative acts, authorizing the subsequent creation of corporations by voluntary association for the manufacture of iron, cotton and glass, it would seem an absurdity to declare that it has taken away the legislative power to authorize, by general acts, in the ordinary forms of legislation, similar associations for agricultural, mechanical or nonetary purposes, when this mode does not come within the letter of the prohibitory clause, and when at the time of the adoption of the clause there was a mode in use and well known, by being applied to which the prohibitory words would be fully satisfied. A result so anomalous, so unmeaning, and so contradictory, should not lightly be charged on the constitution! Every reason that can be given to show that the mode by general act was left untouched, will apply with equal force to show that the power to pass similar general acts was left equally unaffected.
Again : the question may be presented in another light. At the adoption of the constitution there were in existence and often used, two modes of exercising legislative power in the creation of corporations : 1. By act creating and perVol. XXII.