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It is admitted by all, that, previous to the adoption of the present Constitution, the Legislature had unquestionable authority to pass general laws of incorporation, and the power had been exercised in five prominent instances, viz.:

“An Act relative to the university,” passed April 5, 1813, (2 R. Laws, 263,) which authorized the incorporation of an indefinite and unlimited number of colleges and academies.

“An Act to provide 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.

I will here repeat the clause in the Constitution, which it is contended has deprived the Legislature of the power to pass general laws of incorporation. It is in the following words:

“Sec. 9. The assent of two-thirds 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. J .

The first proposition, for which I contend, 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 restain 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.

Two official opinions on this subject have been delivered by two successive Attorney-Generals of this State, viz., Messrs. Bronson and Beardsley, one on a call from the Senate, and the other on a call from the Assembly.

The acknowledged talents and respectability of these officers, entitle their opinion to great consideration.” When we reflect, however, that those officers have not the aid of arguments by Counsel, and are frequently obliged to give their opinions to the Legislature, without full time for examination and reflection, and in the midst of other pressing professional and official engagements, we can hardly expect from them, the matured and cautious judgment of a judicial decision. These private acts of incorporation are also often blended with the attachments, interests, and struggles of political partizanship, and that man is more than human, who can wholly guard against their influence, while surrounded by them, and enjoying honors and distinction, which are, to some extent, at least, the reward of partizan fidelity. One of these opinions were delivered in 1835, and the other in 1837; both, unfortunately, since the policy of creating incorporations, especially for banking purposes, had become in some measure, a beacon light, by which to rally and direct party zeal. We know the learned and upright Judge who now fills one of these seats, too well, to doubt, that he is not only willing, but happy to have recalled, on this occasion, any incident or influence, which may perchance have imperceptibly exposed him to error, when, as Attorney-General, he gave the opinion alluded to. Knowing our danger, we may escape, and that voice is friendly, which gives us warning.

*Mr. Justice Bronson here remarked that his opinion, alluded to, ought not to be regarded as an authority. It was formed without the benefit of argument by Counsel,

and was worth no more than the reasons it contained, and he should be happy to hear them fully examined.

Attorney General Bronson gave his opinion on the 6th of January, 1835, on the call of the Senate. [Senate Documents of 1835, No. 4.] After a pretty full discussion of the subject referred to him, which was a proposed amendment of the general act authorizing incorporations for manufacturing purposes, he arrives at several conclusions, of which the third is as follows:

“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.” [Ib. p. 13.]

Attorney-General Beardsley gave his opinion on the 18th of April, 1837, on the call of the Assembly. [Assembly Doc. of 1837, No. 303.] After a more limited discussion, than that of his predecessor, he states several conclusions on the subject réferred to him, which was, the “Act to authorize associations for the purpose of banking,” which the Assembly proposed to pass in 1837, and which I have mentioned in the former part of my argument, the third of which conclusions is in these words:

“That the bill is unconstitutional, as it assumes to authorize the creation of an indefinite and unlimited number of bodies corporate, and should it pass into a statute, and associations be formed under it, they would, for the purposes contemplated, be absolutely null and void.” [Ib. p. 9..]

The resolution of the Assembly calling for this opinion was

passed on the 13th of April, and the opinion was delivered on

the 18th. A brief space for forming an opinion, fraught with such a momentous result. A result, which strips the Legislature of our State of a power, exercised repeatedly from almost the commencement of our government, with the happiest and most beneficial effects.

Mr. Bronson, in the fore part of the same opinion, in which he states his conclusion against the power of the Legislature to “provide by general laws for the incorporation of voluntary associations,” in answer to the first interrogatory from the Senate, states the following as his answer:

“FIRST The Attorney-General can see no substantial ground for doubt, that the Legislature may, by one act, ereate two or more corporations. The Constitution says nothing on that subject. It only prescribes the number of votes which shall be necessary to every bill creating a corporate body; leaving all other questions about the passing of such laws, as they stood before, to the discre

tion of the Legislature.” [Ib. p. 4.]

In other words, an act may be passed, creating any given number of corporations, from one to one hundred thousand, provided each company is distinctly and directly incorporated by the act.

Both of these conclusions are formed on the same section of the Constitution. It seems impossible to reconcile these two constructions of it. What is there in the language, or spirit of the Constitution, which will prohibit the Legislature from passing a general law for the incorporation of an unlimited number of voluntary associations; that is, from incorporating as many companies as our citizens choose to form; and yet permit the Legislature by a law, to incoporate as many companies as our citizens choose to apply for. The only difference is, that in the one case, the Legislature anticipate the applications, and pass a general law to meet them; in the other, they wait till the applications are made, and then, by one law, incorporate them all. But I submit, that the mode of legislation proposed, is far less safe, than the one condemned. For a law containing ten, one

hundred, or any given number over one, of distinct incorporations, cannot so readily or conveniently, nor will be likely to be so thoroughly scrutinized, by the members of the Legislature, as a general law of incorporation, plainly designating the object of

associating, and placing distinct landmarks, and strong barriers around the incoporations permitted.

In truth, the Constitution neither directs as to one or the other mode. It is silent upon both; and as Mr. Bronson says in his first conclusion:

“The Constitution says nothing on that subject. It only prescribes the number of votes which shall be necessary to every bill creating a corporate body, leaving all other questions about the passage of such laws, as they stood before, to the discretion of the Legislature.”

This view of the Constitution has been taken also by every Legislature since its adoption, as appears by a joint rule of the two houses, which has been in force for years. It is in these words: “The same bill shall not create, renew, or continue more than one incorporation, nor contain any provisions in relation to altering more than one incorporation.” [See Joint Rules.] And Mr. Bronson, after quoting this rule, adds: “This rule must have been adopted, on the ground, that the subject had not been regulated by the Constitution, but rested in the discretion of the Legislature.” [p. 5.]

Mr. Beardsley also holds this language in his opinion. [p. 8.] Speaking of the Constitution, he says:

“In its strict terms, the clause is confined to bills which assume to create corporate bodies, and does not extend to one which au. thorizes their creation by the voluntary association of individuals.” He adds: “But this, in the opinion of the Attorney-General, would be too narrow a construction of that instrument: it would disregard its spirit and object, and adhere, with rigid technicality, to the letter. As understood by the Attorney-General, it requires, that all corporations, thereafter to be formed by the Legislature, should receive the direct assent of two-thirds of the members, in the passage of bills, indicating and creating each particular institution. This is the spirit of the provision, and is consistent with the letter.”

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