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Thomas v. Dakin. have thought proper, and for the very best reasons and most laudable motives, to protect the community from injury, while they restored to every citizen his unquestioned right to use his funds for banking purposes. In doing this, the legislature thought it judicious to require from the associations, full semi-annual statements of their affairs, 26 of the act, as the law then and still requires like annual statements from the incorporated banks of this state, 1 R. S. 593, § 19, 20, 3 id. 287, § 31, to keep a certain amount of specie on hand, § 33 of the act, and other like regulations for the public security; and these have been alluded to by the counsel for this defence, as showing that the associations are corporations. With equal soundness and cogency might he argue, that because a corporation can maintain a suit in its corporate name, and an individual can maintain one in his name, therefore, a corporation is an individual.
One proposition is self-evident, and although alluded to heretofore, should be distinctly stated in this place, and that is: if these associations are corporations by reason of possessing their essential requisites, they must have all those requisites, whatever they are-or in other words, must have the essence of corporations. If there are four essential requisites, and they have but three ; or there are three, and they have but two; or there are two, and they have but one; they cannot be corporations. On the whole, it is insisted that these associations, judged of solely by the power and attributes given to them by the statute, do not possess the essential requisites of corporations, and, of course, are not, for that reason, corporations. It is admitted, as bas already been stated, that they are rot so by explicit legislative enactment—and as corporations can only be created in one or the other of these modes, the argument seems conclusive.
But there is yet another and controlling argument against these associations being adjudged corporations, and that is derived from the manifest intention of the legislature. The first evidence of that consists in not only the entire omission of the legislatare to declare, by direct and explicit enact
Thomas v. Dakin. ment, that the associations, shall be corporations, as they have done in every case, without exception, where corporations have been created by special or general acts; but in their caution, manifested throughout the whole statute, to avoid every expression which might countenance such an idea. No person can read this statute and hesitate for a moment in saying, that the legislature never intended to constitute these associations corporations. If they had, how · obvious the course. They had only to adopt the forms of some of our other general acts of incorporation ; but, instead of that, they have studiously avoided all of them. There is a single provision in the law, which of itself is decisive of the intention of the legislature--the clause in the nineteenth section, that no association shall “ be dissolved by the death or insanity of any of the shareholders therein." Why such a provision, if these associations are thought or intended to be corporations ? But if voluntary associations, then it was pertinent and proper; and like similar provisions often introduced into articles of copartnership and joint stock companies, where there are numerous members, and consequently frequent deaths.
He also contended that the history of the origin, progress and final passage of the act of April, 1838, showed the intention of the legislature, and adverted to legislative documents commencing with a bill on the subject introduced 23d February, 1837, and ending with the final passage of the bill now under consideration including the message of the governor recommending action on the subject, the reports of committees, and the opinions of the attorney-general for the time being. See Assembly Documents of 1837, Nos. 303, 304, 318; Senate Documents of 1837, No. 55; Assembly Documents of 1838, Nos. 2, 122 ; Senate Documents of 1838, No. 68. He stated that the bill passed the house of assembly by a vote of 86 to 29. In the senate, after it was ordered to a third reading, a question was taken whether its passage required a two-third vote, and it was decided in the negative, by a vote of 17 to 10; and subsequently the bill was passed by a vote of 20 to 8.
Thomas v. Dakin. The second position is, that admitting that the associations authorized by this statute are corporations, still the statute is constitutional. As the act must be presumed to have been correctly passed, that is, by a majority of a quorum of each house, if the bill is a majority bill, and by “the assent of two-thirds of the members elected to each branch of the legislature,” if the bill is a two-thirds bill; the question arising under this position is, whether the legislature can pass a law by any vote, majority or two-thirds, authorizing the formation of an indefinite and unlimited number of bodies corporate, or in other words, whether the legislature can now provide by a general law, for the incorporation of an unlimited number of voluntary associations, as it could and did, in many instances, before the adoption of the presa ent constitution.
It is admitted by all, that previous to the adoption of the present constitution, the legislature had unquestions able authority to pass general laws of incorporation, and the power had been exercised in five prominent instances, viz: in the passage of “An act relative to the university," passed April 5, 1813, 2 R. L. 263, which authorized the incorporation of an indefinite and unlimited number of colleges and academies. “An act to pros vide for the incorporation of religious societies," passed April 5, 1813, 3, R. S. 292, which authorized the incorporation of a like number of religious societies. “An act to incorporate such persons as may associate for the purpose of procuring and erecting public libraries in this state," passed April 1, 1796, 3, R. S. 288, which authorized the incorporation of the like number of libraries. "An act to incorporate medical societies, for the purpose of regulating the practice of physic and surgery in this state," passed April 10, 1813, 3 R. S. 304, which authorized the incorporation of a medical society in each of the counties in this state. "An act relative to incorporations for manufacturing purposes," passed March 22, 1811, which authorized the incorporation of an indefinite and unlimited number of voluntary associations for manufacturing purposes. The Thomas v. Dakin. clause in the constitution, which it is contended has deprived the legislature of the power to pass general laws of incora poration, is in the following words: “ The assent of twothirds of the members elected to each branch of the legislature, shall be requisite to every bill appropriating the public monies or property for local or private purposes, or creating, continuing, altering, or renewing, any body politic or corporate.” Const. art. 7, § 9. The first proposition contended for on this branch of the discussion is, that this clause in the constitution is not applicable to a general law, which authorizes all our citizens to unite in companies, and incorporate themselves, to carry on any business, or manufacture, which the legislature may think can be more usefully and beneficially for the community conducted in that way, than by individual effort; but on the contrary, was intended to apply to every separate act of incorporation, which the legislature might thereafter pass, conferring privileges on a few, to the exclusion of the many; and thus restrain and impede the granting of monopolies, which are exclusive privileges, and produce inequalities of rights; giving to a few citizens, advantages, which are refused to all others.
The counsel here adverted to an opinion delivered by Justice Bronson, when attorney-general in 1835, upon a call of the senate upon a proposed amendment of the general act authorizing incorporations for manufacturing purposes, in which he says, “ The legislature cannot now provide by general laws for the incorporation of voluntary associations, but must act directly in every grant of corporate privileges, creating some one or more corporations in particular.” See Senate Documents, 1835, No. 4. And he also adverted to an opinion delivered by the late Attorney-General BEARDSLEY in 1837, on the call of the assembly in respect to the bill of that year, entitled “ An act to authorize associations for the purpose of banking," in which, among other things, he says “that the bill is unconstitutional, as it assumes to authorize the creation of an indefinite and unlimited number of bodies corporate, and Thomas v. Dakin. should it pass into a statute, and associations be formed under it, they would for the purposes contemplated be absolutely null and void.” See Assembly Documents of 1837, No. 303. After commenting upon these opinions, the counsel asked, what does the clause in the constitution prohibit ? Does it prohibit the passage of general laws of incorporation ? Bes fore discussing the question on its meriis, let us settle the matter of authority upon the one side as well as the other, Directly opposed to the above opinions of the gentlemen holding at the time the office of attorney-general, is the unanimous opinion of the revisers of our statutes, Messrs. John Duer, B. F. Butler and John C. Spencer. They were clearly and unequivocally of opinion that this clause of the constitution did not apply to a general law authorizing the creation of corporations, and that the legislature had the same power to pass such laws after the adoption of the present constitution as they had before. They proposed to revise and amend all the five general laws of incorporations above referred to. See Revisers' Rep. ch. 15, pt. 1, tit. 1, art. 2, 3, Of Colleges ; Art. 4, 5, Of Academies ; Report of ch. 18, pt. 1, tit. 1, Of Religious Corporations ; Tit. 2, Of the Incorporation of Library Societies ; Tit. 3, Of Medical Societies, and Tit. 4, Of Manufacturing Corporations. They also proposed an entirely new general law of incorporation, authorizing an indefinite and unlimited number of corporations of " obituary societies." Revis, Rep. ch. 18, pt. 1, tit. 6. The legislature also, which enacted our revised statutes, concurred in opinion with the revisers, and approved and enacted their revision of the general law authorizing the incorporation of academies, 2 R. L. 263 ; Revisers' Rep. ch. 15, tit. 1, art. 4, 5; 1 R. S. 461; and a subsequent legislature has materially altered and amended the same act by a majority vote, as the journals will show. Statutes of 1835, ch. 31. The thirteenth section of the seventh article of the constitution contains a provision, that all the acts of the legislature of this state then in force, and such parts thereof as were repugnant to the constitution, were abrogated. Yet, in the opin