Thomas v, Dakin.

poses for which bestowed. They may be granted extrava→ gantly, in proper cases; and are prejudicial when even spar ingly bestowed for improper objects. The privileges under a general law may be unreasonable in number and degree, as well as under particular statutes; and the object of them such as is calculated seriously to interfere with private and public rights. Guarding them against the mere exclusiveness of privileges, and not against their extent and purpose, would have been but an idle restraint. In every view, it will be found that the policy of the clause applies as strongly to the general as to the particular laws.

It was further urged, that the general laws for the incorpo→ ration of religious societies, &c. existing at the adoption of the constitution, and since continued in force, could not be sustained if the one under consideration failed. Not so. They were not abrogated by that instrument: the thirteenth section of the seventh article only abrogates "such of the said acts, and parts thereof, as are (were) repugnant to the constitution." These were not repugnant, any more than existing charters. The ninth section, the only one bearing at all on them, is prospective, and operated only upon future legislation, leaving in full force all existing laws on the subject.

III. May this general law be constitutionally enacted by the assent of two-thirds of the members elected to each branch of the legislature?

Two different constructions of the ninth section are claimed. For the defendant it is urged, that according to its true intent and meaning, each corporation thereafter to be created by the legislature must receive the direct assent of two thirds of the members elected: While for the plaintiff it is insisted, that the provision is fairly complied with, when the assent of two-thirds is given to a general statute, establishing a system for the admission of voluntary associations to corporate privileges: in other words, when the assent is indirectly given to the creation of each. If we regard the clause as intended to check the undue multiplication of these bodies, it is quite clear that the former interpretation will most effectually attain the object. It secures a perpetual restraint upon their creation, both in respect to the delibera

Thomas v. Dakin.

tion and judgment to be bestowed, as well as to the assent to be given in each particular application: whereas in case of a general law, when once enacted, all further check upon the legislature is at an end. The latter interpretation, however, cannot be said to be ineffectual. It gives full scope to the clause in respect to all the legislation essential to the creation of such bodies: none can claim existence, except by a law passed in obedience to its injunction. The check operates upon the grant of corporate powers to each, but with diminished force. The material difference betwixt the two constructions consists mainly in the mode of applying the restriction to the action of the legislature: the one necessarily making it bear directly upon the grant of privileges; the other, only through an established system of law devised for the purpose.

Recurring to the section, § 9, it will be seen, that the words descriptive of the nature and character of the "bill," and which distinguishes it as falling within the restriction, only import one "creating" "any body politic or corporate." How or in what mode the "bill" shall create them-what shall be its particular provisions-whether it must create directly, or may do so indirectly, is not prescribed, and of course must depend upon the construction to be given to it. One thing it secures in terms, that however the "bill" may be framed, if it creates a corporation, it can pass only by two-thirds. Hence it may be argued with considerable effect, that the framers of the constitution did not intend to restrict the discretion of the legislature in respect to the form and provisions of the bill, its particular arrangement and detail: whether it might or might not embody provisions creating one or more corporations at the same time, or provide for their creation at will for specified objects upon certain stipulations and conditions to be first complied with; but that they intended simply to inhibit the passage of whatever bill might be devised, creating directly, or indirectly, these institutions. This view presents, undoubtedly, the strongest ground upon which the construction contended for by the plaintiff can be placed. The contrary one, beside giving greater force and effect to the clause, it must be ad

Thomas v. Dakin.

mitted is not altogether destitute of support from the phraseology.

To create a corporation "by bill," would seem naturally enough to require that the bill should purport, on the face of it, to create one; that the corporate body should be the direct result of its enactment into a law; and there is plausibility in saying, that one formed by voluntary association under a general statute, is not created "by bill." But the section should be construed to mean the same as if the phrase "by law" had been used instead of "by bill," for the bill cannot be said to create any thing till passed into a law; it is the law, not the bill, properly speaking, that creates the corporation, and the latter term is obviously used in the same sense with the former. The clause would then read thus: "The assent of two-thirds," &c. "shall be requisite to every law creating," &c. Now, though it might at first strike the mind somewhat absurdly to contend that these corporations thus created under a general statute, are created by bill within the words of the constitution, yet when we fix upon the obvious meaning of the term, the difficulty, in a measure, disappears: for it must be admitted that corporations formed under the general act are created by law. All the powers and privileges possessed, and which constitute the corporate body, are derived directly from it. The association itself is a nonentity: it receives all its vitality from the law, and is, emphatically, the creature of it. What adds considerable force to this view is, that unless we hold those thus constituted to be created by bill within the meaning of the constitution, it will be impossible, upon consistent reasoning, to bring any statute, even one purporting to create them, directly within the restriction: for even in that case, the bill or law does not create one absolutely and by its own force, any more than this general statute. Some act is still necessary to be done by the persons intended to be incorporated; they must, at least, assent to the terms prescribed, and frequently first perform onerous stipulations and conditions. The legislature cannot compel a citizen to be a private corporator; it is his concurrence and perform ance of the conditions, if any, that gives to the law all its

Thomas v. Dakin.

effect. 4 Burr. 2200. 3 T. R. 240. 1 id. 575. 2 Mass. R. 279. The most that can be said, therefore, in endeavoring to distinguish this statute from particular acts of incorporation, is, that the conditions and stipulations to be performed preliminarily to corporate existence under the one, will usually be more numerous and important than those under the other. They are alike indispensable in both cases. The difference consists in the nature and amount of the acts to be performed, not in the principles upon which the corporation is constituted. In neither case is it created absolutely by the bill or law, but in each upon consent and performance of the conditions of the grant by the corporators. An illustration of the force and correctness of this view may be seen by a reference to the course of legislation in cases of particular acts of incorporation. Charters for building rail or macadamized roads, canals, turnpikes, &c. often simply provide that certain commissioners may open books for subscriptions to stock; and when a given amount is raised, the subscribers shall assemble and elect directors, who are empowered to conduct all the affairs of the company, and are clothed with the necessary powers for the purpose. Several charters like the above will be found on the statute book, and their constitutionality is not questioned. Bank charters may be granted in the same manner; and it appears to be conceded that any number of them may be embraced in the same bill. If it be said that the place of business of each institution being fixed, the legislature will still be enabled to determine upon the propriety of the several grants, the subject matter of the applications being thus brought directly under the exercise of their judgment: it may be answered, that even the place of business may be left to the discretion of the directors to be chosen, as it will not be pretended that there is any thing in the constitution forbidding this delegation of power.

Then we have a bill embracing an indefinite number of banks without restriction as to the persons upon whom the privileges and powers are conferred, or as to the places where the institutions are to be carried on, and which confessedly, (if any number may be included, which I do not

Thomas v. Dakin.

see can be denied,) may be enacted into a law by two-thirds. It is obvious that corporations thus created, do not differ very materially from those formed under the general law, either in respect to the mode in which they come into existence, or to the operation of the constitutional check upon the legislature. The practical difference would be found more remarkable for perplexing and embarrassing legislation over the subject, in case the construction contended for by the plaintiff be maintained, than in securing a more effectual restraint upon the powers of this body. For, though their assent would be direct in the grant of corporate powers to each, still, if there may be an indefinite number embraced in the bill, without restriction as to persons or places of business, their means of exercising a sound discretion upon the subject matter, would afford but few, if any, advantages, over those to which they have access in the more enlarged consideration of it, when deliberating upon the propriety of establishing a general law under which the institutions may be created by voluntary association. But, leaving out of the discussion the idea that has been suggested, that any number may be embraced in one bill, and taking the most restricted construction contended for, the argument is brought down to the single question which has already been stated, namely, whether the assent of two-thirds required by the 9th section must be directly given to each particular grant, or may not be indirectly through an established system of law for the creation of corporations, as in the case before us? The words of the clause, it is admitted, are not decisive upon either view; and their legal import not free from doubt and difficulty, as I think has been shewn. In such a case I agree that the court ought not to pronounce the statute unconstitutional. The opinion of the legislature is entitled to great consideration and the highest respect upon the question; and in a case of serious or reasonable doubt may be safely admitted as controlling. When it clearly oversteps its bounds, the judicial authority may be effectually invoked and their acts annulled; and in such cases, I trust, it will always be found ready to do its duty. This will afford every necessary protection to the citizen and other departments of the government.