State v. the District of Narragansett , 16 R.I. 424 ( 1889 )

The question presented for decision is, whether chapter 710 of the Public Laws, passed March 22, 1888, is constitutional. By the first section of said chapter a portion of the town of South Kingstown, therein described, "is incorporated into a District by the name of Narragansett," and it is enacted that the "inhabitants thereof shall have and enjoy the like benefits, liberties, and immunities, and be subject to the like duties and responsibilities, as the several towns in this State generally enjoy and are subject to, except as is hereinafter provided." It is provided in a subsequent section that "for all state and national elections, including that of senator and representatives in the General Assembly," the district shall be merely a voting district of the town of South Kingstown. The bill for said chapter was introduced into the General Assembly in March, 1888, and was passed March 22, 1888, before the annual election of members for the legislative year ensuing, which did not occur until April. It is contended for the prosecution that the chapter is void, because it was passed without compliance with the Constitution of the State, article 4, section 17, which is as follows, to wit: "Hereafter when any bill shall be presented to either house of the General Assembly, to create a corporation for any other than for religious, literary, or charitable purposes, or for a military or fire company, it shall be continued until another election of members of the General Assembly shall have taken place, and such public notice of the pendency thereof shall be given as may be required by law."

It is contended for the defence that the chapter is valid,first, because said section 17 is merely directory, and, if mandatory, second, because the district is not a corporation within the meaning of the word as used in section 17.

Judge Cooley, in his excellent work on Constitutional Limitations, expresses the opinion that every constitutional direction should be regarded as mandatory, since it cannot be supposed that rules of proceeding would be prescribed in a constitution unless they were deemed to be essential. Perhaps this view may be too strict for some cases where a rule of proceeding is merely an incidental or subordinate part of the provision in which it occurs. The rule of proceeding prescribed by section 17 is not a subordinate part, but the whole of it. Doubtless the purpose is to notify the people of the pendency of the bill, and give them an opportunity to express themselves, according as they may like or dislike it, in the election of the new members, and thus exert an influence, more direct than they otherwise could, upon the question of its enactment. In this view it seems to us that a substantial compliance with the section must be regarded as indispensable to the valid enactment of any bill for the creation of any corporation to which the section applies. A proposition to amend the Constitution by striking out section 17 was submitted to the people in 1876 and rejected, a considerable majority of the votes cast being against it.

Is the district a corporation within the meaning of the word as used in section 17? It is indisputably a corporation, and must be held to be within the section unless there is some sufficient reason for holding otherwise. The contention for the district is that the word, though it is technically comprehensive enough to include public corporations, is popularly used to signify only private corporations, and was so used in section 17. There can be no doubt that the word is frequently so used, it being assumed that it will be understood that it is so used in the absence of anything to show that a fuller meaning is intended. The use occurs not only in conversation, speeches, newspapers, and public documents, but even in the statute book. In Pub. Stat. R.I. cap. 27, § 14, it is enacted that "No corporation other than a corporation for religious, literary, or charitable purposes, or a military or fire company, shall be organized under a charter until the petitioners for the same shall pay into the general treasury, for the use of the State, one hundred dollars." The language follows that of section 17, but it has not been held to cover public corporations. Chapter 152 is entitled "Provisions respecting corporations in general," and the provisions, though not in terms limited to private corporations, seem to be intended only for such corporations. There are decisions which recognize such a use of words. Street and sewer assessments for benefit are taxes, but they have been held not to be taxes within the meaning of the word as used in leases, charters, and statutes. In theMatter of College Street, 8 R.I. 474; Beals v. The ProvidenceRubber Co. 11 R.I. 381. The organic act of Washington Territory authorizes the legislative assembly of the territory to confer the right of suffrage on "citizens of the United States above the age of twenty one years," and the assembly conferred the right on such citizens, both male and female; but the Supreme Court of the territory has recently decided that the assembly had no power to confer it on women, because women, though technically citizens, are not citizens within the meaning of the word as used in the act. Bloomer v. Todd, 19 Pacific Reporter, 135. See, also,Opinion of Justices, 107 Mass. 604; Robinson's Case,131 Mass. 376. "Every constitution," it has been said, "has a history of its own which is likely to be more or less peculiar, and, unless interpreted in the light of this history, is liable to be made to express purposes which were never within the minds of people in agreeing to it." Per Cooley, C.J., in People v.Harding, 53 Mich. 481.

The defendants contend further, in support of their views, that the section originated in certain jealousies or fears in regard to private, not public, corporations. The fear was that such corporations, being armed with large powers and extraordinary franchises, might become, especially if multiplied unduly, dangerous to the common weal. This fear was aggravated by the decision in the Dartmouth College case. The fear was specially rife in regard to banks. The meagre report which we have of the proceedings of the convention to frame the Constitution shows that the section, as first offered, covered only "banking companies for the purpose of issuing notes for circulation." This was amended so as to include "all banks." A motion was then made to insert railroad and turnpike corporations. Some members then expressed a wish to have all corporations included except those for religious, charitable, military, and fire companies, and thereupon the section was referred, and subsequently reported in its present form and adopted. There was no mention of public corporations. Public corporations are not obnoxious to the jealousies and fears referred to. They are a part of the machinery of government, mere modes of organization, by virtue of which the people of a city, town, or district are enabled the better to perform their public functions, and they may be changed or abolished at the will of the legislature. "They can be considered," says Chancellor Bland, in McKim v. Odom, 3 Bland, 407, 417, "in no other light than as the auxiliaries of the government, and consequently as the secondary and deputy trustees and servants of the people. The right to establish, alter, or abolish such corporations seems to be a principle evidently inherent in the very nature of the institutions themselves, since all mere municipal corporations must, from the very nature of things, be subject to the absolute control of the government." There is nothing aliunde section 17 to lead to the supposition that it was intended to extend to such corporations. And see 1 Dillon on Municipal Corporations, § 30.

It may be remarked further that corporate powers are frequently conferred upon certain officers or official bodies or upon certain districts for public purposes, by reason whereof it becomes their duty to exercise the powers for those purposes in the same manner as if they were public corporations, although they have not been incorporated. Such officers, bodies, or districts are denominated quasi corporations. In some states, the towns and counties are quasi corporations, having never been incorporated or declared to be corporations by legislative enactment. Angell Ames on Corporations, §§ 18, 23, 24. Doubtless it is partly because of the frequency with which corporate powers are so conferred that it does not generally occur to the popular mind, when corporations are mentioned, that public as well as private corporations may be meant.

The defendants also contend that the General Assembly has in practice construed the section as not extending to public corporations, and that the court ought to follow its construction unless it is palpably erroneous. The General Assembly has passed acts incorporating such corporations, sometimes without either continuing the acts or giving notice, and sometimes without giving notice though the acts were continued. Such were the acts incorporating the towns of Pawtucket and East Providence, A.D. 1861, the town of Woonsocket, A.D. 1867, the towns of Lincoln and North Smithfield, A.D. 1871, and the Westerly Fire District, A.D. 1870. And there may be other such unknown to us. Besides these, there are numerous school districts which have become bodies corporate under general laws dating back to A.D. 1845, and which cannot be regarded as literary corporations, within the exceptions to section 17, without great laxity of construction. The General Assembly has always had its share of learned lawyers and experienced legislators, and it cannot be supposed that these omissions were so many times repeated by mere inadvertence, especially as it does not appear that section 17 as it applies to private corporations has ever been disregarded. The act by which the towns of Pawtucket and East Providence were incorporated was a part of the settlement of the Eastern Boundary question, in which the late Honorable Thomas A. Jenckes and the late Honorable Charles S. Bradley acted as counsel.

There are cases which give to the word "corporation" the narrow significance which the defendant contends for, even when used in a state constitution. The Constitution of Tennessee contains the following provision, to wit: "No corporation shall be created, or its powers increased or diminished, by special laws; but the General Assembly shall provide by general laws for the organization of all corporations hereafter created, which law may at any time be altered or repealed; and no such alteration or repeal shall interfere with or devest rights which have become vested." In State v. Wilson, 12 Lea, Tenn. 246, the question was whether this provision extended to public corporations, and the Supreme Court of Tennessee held that it did not, and so held notwithstanding it appeared that in the constitutional convention a motion was made to limit it to private corporations and was rejected. "Whatever may have been the motive of this action," say the court, "we are constrained to hold that the section itself, as adopted by the people, only applies to private corporations." See, also, Ballentine v. The Mayor, etc., of Pulaski, 15 Lea, Tenn. 633; Luehrman v. Taxing District, 2 Lea, Tenn. 425;Mayor of Baltimore v. Root, 8 Md. 95.

The argument for the prosecution is that the language of section 17 is limited only by the specified exceptions, and the court has no right to impose any other limitation; that it must be presumed that the framers of the section knew that it was broad enough to include public as well as private corporations, and that it must therefore be further presumed that they intended to have it include them. It is also argued that, conceding that the section originated in feelings and fears which related only to private corporations, it does not follow that it was not considered that the section could be extended with salutary effect to public corporations, since the creation of such corporations often interests and affects people, personally as well as politically, and the people specially affected thereby may have views and sentiments upon which they desire to be heard, and upon which it may be wise that they should be heard or represented.

The prosecutor cites the case of Purdy v. The People, 4 Hill, N.Y. 384. The question in that case was whether the provision of the Constitution of the State of New York, that "the assent of two thirds of the members elected to each branch of the legislature shall be requisite to every bill creating, continuing, altering, or renewing any body politic or corporate," extended to public corporations. The question was raised before the Supreme Court of the State in the earlier case of ThePeople v. Morris, 13 Wend. 325, and was decided in the negative, Nelson, J., afterward Chief Justice of the court, and still later one of the Justices of the Supreme Court of the United States, delivering the opinion. The ground of decision was that, when the New York Constitution was adopted, the multiplication of certain private corporations was regarded as a serious danger, and that the only purpose was to impose a salutary check upon it. And see, to the same effect, People v.Mayor, c. of New York, 25 Wend. 680, and per Chancellor Walworth in Warner v. Beers, 23 Wend. 103, 126. In ThePeople v. Purdy, 2 Hill, N.Y. 31, the question again came before the Supreme Court, Nelson, C.J., and Bronson and Cowen, JJ. Nelson, C.J., adhered to his former opinion; Cowen, J., concurred with him in decision, but on another ground; and Bronson, J., delivered a powerful dissenting opinion. The case was taken to the Court of Errors, being the case cited above asPurdy v. The People, 4 Hill, N.Y. 384, and there the decision of the Supreme Court was reversed. It was tried in the Court of Errors before the President of the Senate, Chancellor Walworth, and twenty two Senators. The vote was thirteen for and eleven against reversal, the president and the chancellor voting with the minority. The decision settled the question affirmatively for New York, but it may be doubted whether the weight of authority, taking the cases all together, was not the other way. However that may be, the New York cases differ from the case at bar in this, that in them the language was, "any body politic or corporate," and there was no claim that that phrase had come to signify, in common parlance, simply private corporations. On the contrary, the words have a technical ring about them, and the word "politic" especially, whatever its legal significance, would be likely to suggest to the popular ear a public or political body corporate; and in interpreting a constitution, the question is not so much how was it understood by its framers as how was it understood by the people adopting it. Moreover, Judge Bronson states in his opinion that, when the provision was before the New York constitutional convention, attention was drawn to the fact that it was broad enough to include public corporations, and that an amendment was proposed to limit its scope, but was not accepted.

The prosecutor cites cases decided under the constitutions of Ohio, Kansas, and Nebraska. Those constitutions severally declare that "the legislature shall pass no special act conferring corporate powers," and the cases cited hold that special acts conferring new or further powers on public corporations are within the provision. In each of the constitutions the provision occurs in an article entitled "Corporations," consisting of several clauses, one of which declares that "provision shall be made by general law for the organization of cities, towns, and villages," thus showing that public corporations were within the purview of the article. Doubtless one purpose was to prevent the struggle of individual corporations for special powers, and the danger of corrupt legislation incident thereto; but there seems likewise to have been still another purpose, namely, to save the law of corporations from the disorder, complexity, and uncertainty which such special legislation, if permitted, is sure to introduce, and this is a purpose which is appropriate to public as well as private corporations. The State v. The City of Cincinnati,20 Ohio St. 18, 34, 35. But, notwithstanding these reasons for the construction, when the question came up in Commercial Bank v.City of Iola, 2 Dillon, 353, before Judge Dillon, author of the treatise on Municipal Corporations, in the United States Circuit Court, that eminent jurist, though he held himself bound by the state decision, remarked that it might admit of some discussion, whether the provision was designed to apply to municipal corporations, if the question were res nova.

In this conflict of argument and decision it will be good to consider what the rule is which the courts observe in deciding whether a statute is constitutional or not. The question of constitutionality is distinct from the question whether a statute, in its operation as a law, is likely to work well or ill, the latter question being a purely legislative question with which the courts have no concern. The courts concede to state legislatures a legislative power which is limited only by the Constitution, and they are therefore careful not to declare a statute unconstitutional until they are clear that it is so. They assume that the legislators, being bound by their oaths to support the Constitution, consider, when any act is proposed for passage, whether it can be constitutionally passed, and do not vote for the passage of it until every doubt has been quieted. In this view a becoming deference to the legislature inculcates caution. "The question whether a law be void for its repugnancy to the Constitution," says Chief Justice Marshall, "is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case."Fletcher v. Peck, 6 Cranch, 87, 128. The rule generally laid down is, that statutes should be sustained unless their unconstitutionality is clear beyond a reasonable doubt. A reasonable doubt is to be resolved in favor of the legislative action, and the act sustained. Cooley on Constitutional Limitations, *182 and cases cited. "Before an act is declared to be unconstitutional it should clearly appear that it cannot be supported by any reasonable intendment or allowable presumption."People v. Supervisors of Orange, 17 N.Y. 235, 241. "All intendments favor constitutionality." Crowley v. State ofOregon, 11 Oregon, 512. "Courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void unless the nullity and invalidity of the act are placed, in their judgment, beyond a reasonable doubt." Wellington et al.,Petitioners, 16 Pick. 87, 95, per Shaw, C.J. "It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed," says Justice Washington, "to presume in favor of its validity, until its violation of the Constitution is proved beyond all reasonable doubt." Ogden v. Saunders, 12 Wheat. 213, 270. Of course if courts are bound to be thus careful where a single statute involving a doubt has been passed, it behooves them to be still more careful, if possible, after several such statutes have been passed from time to time by different legislatures, without either question or protest. A long continued legislative construction is entitled to great weight with the courts, if not clearly erroneous.

If it were permitted to us to construe section 17 without regard to the action of the General Assembly, we should probably give to the word "corporation" its broad generic meaning, but we should do so not without some doubt whether, in so doing, we were not making the section more comprehensive than it was intended to be. We cannot construe the section without regard to the action of the General Assembly, and of course the respect due to the action of that body increases the doubt which we should have felt independently of it. If the act incorporating the defendant district be unconstitutional, so likewise, it would seem, are the acts incorporating the aforenamed towns and fire district; and though it is true that the court cannot, consistently with its duty, refuse to recognize a violation of the Constitution where the violation is plain, still in cases of doubt the question of consequences is not to be ignored. Cooley on Constitutional Limitations, *67, *69. It seems to us that there is at least a reasonable doubt, if not something more, and that, all things considered, it is not our duty to declare the act incorporating the defendant corporation unconstitutional, because it was enacted without continuance and notice under section 17.

The prosecutor contends further that the act is unconstitutional because it is in effect an attempt to create a town without giving it the representation which the Constitution secures to towns in the General Assembly. We are not satisfied that this point is tenable. The District is within the town of South Kingstown, and is represented in the General Assembly as a part of it.

Demurrer sustained and information dismissed.