Thomas v. Dakin.

cause of the constitutional provision; or to the two modes of corporate legislation then in use. He makes the remark apparently under the general impression that banking institutions are within the spirit of the clause, without reflecting upon the great difference between opening banking to all and restricting it to a few; or that a general banking law, conferring corporate powers, is no more within the spirit of the constitution, than a general manufacturing law; a general insurance law; a general whale fishery law; or any other general law conferring like powers. If one general law, creating corporations for a particular purpose, is within the constitution, then every other general law, conferring corporate rights for whatever purpose, is also within it, Had the governor looked at the question in all its bearings and effects, he would have concurred with the revisers of our statutes, in this particular, as he did in the more general proposition, that the legislature had the same power now, as before the adoption of the constitution, to pass general laws of incorporation; and that the restrictive clause was only applicable to private and exclusive legislation.

The language of the constitution fairly and naturally indicates and covers this special legislation. It is: "The assent of two-thirds of the members elected to each branch of the legislature, shall be requisite ot every bill appropriating the public monies or property for local or private purposes, or creating, continuing, altering or renewing, any body politic. or corporate." Does not the section, tested by its language, apply, and only apply to that mode of creating corporations, then in general use, by a separate act for each incorporation? The assent required shall be "to every bill," &c, "creating," &c. any body politic or corporate." The language indicates separateness and directness of legislation, and must be strained to embrace general laws and indirect. incorporation.

It is not insisted that if a law incorporates more than a single company, it is not therefore embraced by the constitution. The plaintiff contends for the great and manifest distinction, between general and private legislation; between a law that confers the same privileges on

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all, and one which confers privileges on a few to the exclusion of the many. It may be difficult to mark the exact line; but not more so, than to determine the old line between public and private acts; between internal improvements for general, and those for local benefit; and between bills appropriating public monies for local and private purposes, and those appropriating them for general purposes. There is a broad distinction between them founded on reason and principle. One is and the other is not within the evil provided against. One is and the other is not within the letter or spirit of the constitution.

The framers of the constitution were well aware of our general laws of incorporation and of the frequency with which they were passed. Some of them were even alluded to in the few remarks made in convention on adopting the restrictive section. Had it been the intention of the convention to include within this provision of the constitution general laws of incorporation, would not other and appropriate language for that purpose have been used? and especially, if the convention had intended to prohibit altogether the passage of any more general laws of incorporation, either by a majority or two-thirds vote; (for let it be kept steadily in mind, that that is the position contended for by our opponents and sanctioned by the opinion of Messrs. Bronson and Beardsley ;) would not other language have been used? would not another and a distinct section have been introduced into the constitution? The manifest object of this section was to declare by what vote, certain laws thereafter should be passed, and not what laws should or should not be thereafter passed. Besides if the convention had supposed that the effect of this section would be entirely to prohibit thereafter the passage of all general acts of incor poration, there would certainly have been opposition; the policy of the measure would at least have been doubted by many; a debate, and a full and protracted one, would have ensued. The public would have been alarmed by such a proposition, and the press would doubtless have been heard. And had the convention intended to prohibit the passage of general laws of incorporation for conducting the business of

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banking, or insurance, or any other trade or business, would there not have been in the constitution an appropriate clause ? or had the convention intended to do any thing except regulate the mode of legislation in respect to the vote to be given, would they have left their intention in doubt ?

Seeing then, that the language of the section does not call for, but on the contrary repels the construction claimed by the counsel for the defendant; seeing also that it was not the intention of the framers of the constitution to prohibit thereafter the enactment of general laws of incorporation, should the light of experience induce this tribunal to extend this constitutional provision by construction beyond the nat ural and fair purport of its language.

It cannot be deemed rash to assert, that if this section of the constitution could be submitted now to the people of this state, it would be repealed almost unanimously. Instead of promoting purity in our legislation, or restraining exclu sive and unequal grants of corporate privileges, it has the directly opposite tendency, by enabling a few members in each branch of the legislature to control its action, and thus force through the forms of legislation, many measures, as unjust as they are unwise. Mr. Beardsley, in his opinion, uses strong language on this subject. He says: "The restraint imposed by the constitution may be an unwise one, and unsuited to the present condition and wants of the com munity. It may have been imposed without adequate cause, and have proved to be illusory and mischievous. These are all possible." It may be added that they are all true; and that such is the opinion of this community. The report of the committee of the senate, made in 1837, from which extracts have already been given for another purpose, holds the bold and direct language of truth on this subject, and shows the lamentable and humiliating in fluence which this provision of the constitution has had in practice on our legislation.

The question then arises, is it the duty of this court to extend this constitutional provision by construction; or, is it rather their duty to restrict its influence? The answer is obvious.

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There is a single other idea which ought to be stated in this connection; and that is, that there is no danger from any source, in permitting a legislature to legislate for the general benefit of the community, which must always be the case, with all general laws of incorporation. They create no distinctions; they confer no exclusive privileges; they benefit all alike. Such a power, surely, ought not to be taken from our legislature, by implication or construction.

This court, in the case of The People v. Morris, 13 Wendell, 325, decided, that laws, both general and special, incorporating or altering the acts of incorporation of our cities and villages, were not within the operation of this clause of the constitution, and might be passed by majority votes; although it was admitted that they were within its letter. The great principle on which this decision rests, is that these corporations, being bodies politic, were created for the general benefit of the community, and were not within the evil intended to be remedied by this constitutional provision, and that it would be dangerous, and could not have been intended by the convention "to restrict the action of the legislature in the municipal regulations of the state." The chief justice thus expresses himself: "Are they within the evil this provision was designed to remedy? No one, I think, acquainted with the history of the times, or with the introduction of this clause into the constitution, will venture upon this ground. It may be fortunate for truth, and what is deemed a sound exposition of this provision, that all who may desire to examine it, can recur to his own recollection, and challenge that of others upon this point. We think we hazard nothing in asserting, that the multiplication of cities, or villages by the legislature has at no time been a subject of complaint." Id. 336. How fully and forcibly this language covers the whole ground occupied by the present discussion. Who, acquainted with the history of the times, will venture to assert, that the passing of general acts of incorporation has at any time been the subject of complaint. As such acts were not within the evil intended to be remedied, they should be excluded.

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from the operation of the constitutional restriction, even if within its words, on the principle of the decision just cited; a fortiori, they should be excluded, not being within its words. This great principle has been acted upon in this state ever since the adoption of the present constitution, in respect to bills appropriating public monies or property for local or private purposes." Our legislation has been uniform in passing bills of this kind by the ordinary majority vote, where the benefit was general, though the appropriation was confessedly local.

This branch of the argument is concluded by stating the auswer to the question proposed, viz: that this constitutional provision is not applicable to general acts of incorporation, and that 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, that 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 present constitution.

But if the court is not fully satisfied with this conclusion, one other rule of construction is submitted, applicable to these great constitutional questions; a rule founded in the purest wisdom, and supported by the highest authority. It is, that no atatute should be declared unconstitutional, unless it is clearly and unquestionably a violation of the constitution. This court, in the case of ex parte M' Collum, 1 Cowen, 564, said: "Before the court will deem it their duty to declare an act of the legislature unconstitutional, a case must be presented in which there can be no rational doubt." And the supreme court of the United States, in the case of Dartmouth College v. Woodward, 4 Wheat. 625, held, "that in no doubtful case would it pronounce a legislative act to be contrary to the constitution." If, then, the argument which has been presented has failed to produce conviction, and only brought the court into doubt, as to the constitutionality of the statute, that doubt must be resolved in favor of its validity; and thus protect the immense amount of property. VOL. XXII.

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