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Thomas v. Dakin. invested under its sanction, and secure to the community the great benefits which have and must flow from its enactment.
The third and last position is, that admitting that the constitutional restriction is applicable to general acts of incorporation, then it is insisted that such a law may be passed by a two-thirds vote, and that this law will be presumed to have been so passed.
One of the propositions stated, and it is trusted satisfactorily proved, in the course of the argument in support of the second position is, that the constitutional provision was only intended to prescribe the vote by which each act should be passed, which appropriated public moneys to local or private purposes, or created or altered any body politic or corporate, and left every thing else to the discretion of the legislature. The only question remaining is, whether this court is not bound to presume that this, as well as every other act of the legislature which has passed through the office of the secretary of state to the state printer, and been published according to law, has been constitutionally passed ; or, in other words, whether this court can inquire beyond the certificate of the secretary of state, and institute an investigation respecting the manner in which any given law has passed the legislature? Our statutes declare : “He (the state printer) shall print, in volumes of octavo size, so many copies of the laws of each session, with the concurrent resolutions and indexes that shall be delivered to him for that purpose, by the secretary of state, and shall be annually directed by the secretary, who shall also revise and correct the proof sheets.” 1 R. S. 148, § 10. “ All laws passed by the legislature, may be read in evidence. from the volumes printed by the state printer, in all courts of justice in this state, and in all proceedings before any officer, body, or board, in which it shall be thought necessary to refer thereto.” Id. 148, § 12. “ The secretary of state shall receive every bill which shall have passed the senaté and assembly, and have been approved and signed by the governor, or which shall have become a law notwithstanding the objections of the governor, or which, not having
Thomas v. Dakin. been returned by the governor within ten days, shall have become a law; and shall deposit such laws in his office.” Id. $ 10. “He shall certify and endorse upon every such bill, the day, month and year, when the same so became a law, and such certificate shall be conclusive evidence of the facts therein declared.” Id. 157, § 11. "No bill shall be deemed to have passed by the assent of two-thirds of the members elected to each house, unless so certified by the presiding officer of each house.” Id. 156, $ 3.
It has been supposed by some, that two-thirds bills must have the certificate provided in this last section attached to them, or they are not valid. This has never been the practical construction put upon the section, as such certificates have not been published with the tivothirds acts, which they would have been, if they were considered essential to the validity of those acts. The object of the certificate would appear to be, that, for which it has heretofore been used, to apprise the governor. how the act has been passed, that he may understandingly exercise his power of veto. For if, in his opinion, a two-thirds bill has been passed by a majority vote, it is undoubtedly his duty to withhold his approval. Other sections of the statute appear to indicate this, as the object of the certificate. The fourth section is in these words : “ Every bill thus passed and certified, must, before it becomes a law, be presented to the governor; if he approves, he must sign it; and he shall endorse thereon a certificate of his approbation, and deliver the same so endorsed to the secretary of state.” 1 R. S. p. 157, § 4. By this section, when the governor approves a bill, he must endorse on it a certificate of his approbation, and deliver it to the secretary of state. His certificate, it would appear, is the evidence on which the secretary of state is to make his certificate, as directed by the eleventh section above quoted. If the governor does not approve a bill, and it is afterwards passed by two-thirds of the members present in each house, the presiding officer of each house must certify the vote thereof on the bill, and the presiding officer of the house which last passes it must deliver the bill so certified to the secretary of state. See Thomas v. Dakin. 1 R. S. 157, § 5, 6, 7. These certificates appear to be the only authentication in such a case, on which the secretary of state acts in endorsing his certificate. If we give to the certificates, which the third section requires upon two-thirds bills, the same force and effect which are given to the certificates required upon bills disapproved by the governor and afterwards passed by two-thirds present, they then are no more than authentications upon which the secretary of state acts when he endorses his final certificate ; and certainly they can be entitled to no greater force, nor furnish and higher evidence of legislative action. At all events, they are acts anterior to the act of the secretary of state, which the statute declares, shall be conclusive of the month and year when the bill becomes a law. Does not this necessarily shut out all inquiry beyond the certificate of the secretary of state ? And ought it not to do so ? The consequence of permitting an investigation before a jury, of the circumstances under which a law was passed, for the purpose of ascertaining whether it had been constitutionally passed, or, in other words, whether the members of the legislature had kept their oaths of office, and regarded the constitution, would seem to be dangerous, and certainly would in many cases be unjust, and might be fatal to the public.
The constitution declares, that “a majority of each house shall constitute a quoruin to do business." Const. § 3. 1 R. S. 43. The presence, therefore, of a majority is essential to the transaction of any business, and especially to pass a law. This constitutional requirement is just as explicit and binding, as the one which requires the assent of two-thirds of the members elected to each house to a two-thirds bill. If our courts of law may inquire, by a jury, how a two-thirds bill was passed, in the like manner they may inquire how a majority bill was passed; and thus statutes, which may have been rules of action for years, and under which large amounts of property have been vested, and numerous titles taken, may be in effect abrogated by a court and jury, and declared void. Can a principle, with such a consequence, be tolerated ? The mere statement of it produces its cona
Thomas y Dakin. demnation. If there is no reason for it to rest upon, much less is there any authority. I presume such an extraordinary investigation has never been wirnessed in any country, where the distinction is recognized between statute and common, or written and unwritten law. Besides, every bill, after being endorsed by the secretary of state, as require ed by the statute, is filed in his office, and becomes a record. A record imports verity, and can only be tested by itself. As a general rule, no enquiry in pais is permitted which may destroy it: it stands or falls by itself. This rule so just and reasonable, should secure us from exposure to the hazard of losing the protection of statutes we have lived under for years. This point, it is true, does not directly arise on these pleadings, but a full discussion of the subject required its consideration.
The following opinions were delivered:
" By Chief Justice Nelson. This is an action brought by the plaintiff, as president of the Bank of Central New-York, an association formed under what is familiarly known as the General Banking Law, passed April 18, 1838, to recover several demands due the institution.
The defendant has demurred to the declaration, and urges the unconstitutionality of the law by way of defence; and it is insisted, in his behalf: 1. That the associations formed under this law are corporations; and 2. That a general law authorizing the creation of these bodies, is inconsistent with the ninth section of the seventh article of the constitution. On the part of the plaintiffs, it is urged in reply: 1. That the associations are not corporations ; 2. That if they be, the act authorizing them may be passed by a majority bill ; and 3. If within the ninth section, still the law may be passed by two-thirds of the members elected.
Are these associations corporations? In order to determine this question, we must first ascertain the properties es. sential to constituie a corporate body, and compare thein with those conferred upon the associations; for if they ex- t ist in common, or substantially correspond, the answer will
Thomas v. Dakin. be in the affirmative. A corporate body is known to the law by the powers and faculties bestowed upon it, expressly or impliedly, by the charter ; the use of the term corporation in its creation is of itself unimportant, except as it will imply the possession of these. They may be expressly conferred, and then they denote this legal being as unerringly as is created in general terms. It has been well said by learned expounders, that a corporation aggregate is an artificial body of men, composed of divers individuals, the ligaments of which body are the franchises and liberties bestowed upon it, which bind and unite all into one, and in which consists the whole frame and essence of the corporation. The “ franchises and liberties,” or, in more modern language, and as more strictly applicable to private corporations, the powers and faculties, which are usually specified as creating corporate existence, are: 1. The capacity of perpetual succession ; 2. The power to sue and be sued, and to grant and receive in its corporate name; 3, To purchase and hold real and personal estate ; 4. To have a common seal; and 5. To make by-laws. These indicia were given by judges and elementary writers at a very early day : since which time the institutions have greatly multiplied, their practical operation and use have been thoroughly tested, and their peculiar and essential properties much better understood. Any one comprehending the scope and purpose of them, at this day, will not fail to perceive that some of the powers above specified are of trifling importance, while others are wholly unessential. For instance, the power to purchase and hold real estate is no otherwise essential than to afford a place of business; and the right to use a common seal, or to make by-laws, may be dispensed with altogether. For as to the one, it is now well settled that corporations may contract by resolution, or through agents, without seal; and as to the other, the power is unnecessary, in all cases where the charter sufficiently provides for the government of the body. The distinguishing feature, far above all others, is the capacity conferred, by which a perpetual succession of different persons shall be regarded in the law as one and the same body, and may at all