Imágenes de páginas
PDF
EPUB

REPORT, &c.

"STATE OF NEW-YORK,
IN SENATE, April 23, 1832.

"Resolved, That the Attorney-General report, at the commencement of the next session of the Legislature, his opinion of the construction of section 9th, article 7th of the Constitution of this State; and particularly whether an act of incorporation can be repealed by a majority of the Legislature, or whether it requires two-thirds of all the members elected to repeal it.

"By order,

JOHN F. BACON, Clerk."

The Attorney-General, in obedience to the foregoing resolution of the Senate, respectfully submits the following

REPORT:

The Constitution, Article VII. Section IX. is in the following words:-"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." The question to be considered, is, "whether an act of incorporation can be repealed by a majority of the Legislature, or whether it requires two-thirds of all the members elected to repeal it." And the question, no doubt, supposes a case in which the right to repeal was reserved in the original grant.

This section was not contained in the former Constitution of the State, and there is nothing in the early history of the government to aid in its construction. That part of the section which relates to appropriations of the public moneys and property, has given rise to a greater number of questions than any other provision of the Constitution. And much as it has been discussed in the Legislature and elsewhere, its application still remains the fruitful source

of conflicting opinions. That part which relates to corporations, has been found less difficult of application; and the resolution of the Senate presents the most serious question which has ever grown out of it. That it is not free from difficulty, will be readily admitted when it is mentioned that two such eminent jurists as the late Attorney-General and the late Chancellor Kent have arrived at different conclusions on the subject; the former holding that the votes of a majority only, and the latter that the votes of two-thirds of all the members elected, are necessary to a bill repealing an act creating a corporation. Those opinions may be found in the Assembly Journal of the year 1824, p. 1287; and 2 Kent's Commentaries, (2d edition,) p. 308,

It was remarked by a committee of the Assembly in 1828, "that this section of the Constitution is to receive a strict construction; because it is a limitation upon the power of the Legislature, which power is the supreme power of the State: A power that is absolute and unlimited, except so far as it is restrained by the provisions of the Constitution. The aforesaid section therefore cannot be applied to any bill, unless such bill is most clearly, and beyond all doubt, embraced within its letter and its spirit." This doctrine, if well founded, would fortify the conclusion to which the AttorneyGeneral has arrived in relation to the question presented by the Senate. But he is unable to yield his assent to this mode of interpreting the Constitution. It cannot be strictly proper to call this a limitation of power. The authority of the Legislature to pass bills appropriating the public money to private purposes, and creating corporations, remains as unlimited as it was before. There is neither any restriction upon the number of bills that may be passed for such purposes; nor is the Legislature confined to any particular class of cases, or set of circumstances under which such enactments may be made, The Constitution, therefore, has not interfered with the power of the Legislature, but only regulated the manner of its exercise. In relation to most subjects of legislation, it is provided that "a majority of each house shall constitute a quorum to do business," (Const. Art. I. Sec. III.;) and upon admitted principles, the votes of the major part of the members present are sufficient to pass a bill. But in relation to a particular class of cases, the same Constitution has given a different rule, and required the votes of two-thirds of all the members. In the one case, it may happen that nine votes in the Senate, and thirty-three in the House, will be sufficient to make a law; while in the other

case, twenty-two votes in the Senate, and eighty-six in the Assembly, are necessary for that purpose. Still the latter provision is no more to be regarded as a limitation of power, than the former. It contains an exception to the general rule, that the majority shall govern; but that fact cannot change the principles upon which the Constitution is to be interpreted.

If it be admitted however that this provision may properly be regarded as a limitation of power, it is not for that cause to receive "a strict construction." Restrictions upon power are among the primary objects in forming written constitutions and charters of government; and furnish the principal distinction between the condition of a free people and the servants of despotic authority. And the language by which the people have either refused the grant of particular powers, or regulated the manner of their exercise, is to receive the same just and liberal construction, as that by which they have described the powers which they are willing to delegate. Any different rule of interpretation, would go far to undermine the foundation of all charters of civil liberty.

The question then, in expounding this or any other clause in the Constitution, is, not how much or how little it may be made to mean, by adopting either a liberal or a strict construction; but what is the just and fair import of the language employed, without distorting it either the one way or the other, for the advancement of any favorite object. And in cases of doubt or difficulty, the meaning is to be ascertained by entering, if possible, into the mind and intent of those who framed and adopted the instrument; and to consider it as though they were present to respond to the inquiry, whether the particular case was or was not designed to be included in the provision.

Without considering further the proper rules for interpreting the Constitution, the question presented is, whether a bill repealing the charter and working the entire dissolution of a corporation, is a bill "creating, continuing, altering or renewing" the body corporate?— The word "altering" is the only one which can give rise to a diversity of opinion on this subject: for it is apparent, that a bill repealing the charter, cannot, with the least degree of propriety, be denominated a bill either "creating, continuing, or renewing" the corporation. The matter may then be considered in the first place, upon the true force and meaning of the word "altering," without

regard to the connection in which it is used. To alter, as defined by the most approved lexicographers, means, to make some change in, to make otherwise than it is, or different in some particular, to vary in some degree. It implies only a change made in some part of a thing, while the thing itself remains, though in a different state or condition from what it was before: and it never supposes the end or destruction of the thing said to be altered. And to hold that this word includes the case of a bill working the annihilation of a corporation, is to give to it a more extended signification than either authority or the common use of our language will justify.

There is nothing in the subject to which the word is applied, indicating that it ought to receive a more enlarged definition than has usually been awarded to it. And the words with which it stands connected, plainly point the clause to a different purpose, from that of furnishing any new protection to the enjoyment of corporate franchises. And this leads to the consideration of the spirit of the provision, or the intention of the framers of the Constitution as manifested on the face of the section. And looking at the whole clause, it appears to be undeniable that the intention of the Convention was to impose a check upon the increase of corporations and corporate privileges. Every word employed to designate the particular description of bills, is suited to that intention. Three of the four words are so directly adapted to that end, and to no further or different purpose, that the subject cannot be made more plain by argument. And the fourth word, "altering," was necessary to carry that intention into full effect. Neither of the other words would extend further than to the original institution of a corporation, and the continuance of its duration; while the grant of new powers and privileges to an existing body politic, would have remained without any such safeguard. But the word "altering," in connection with the others, has effectually covered the whole ground; so that a corporation can neither be created, nor can its franchise be in any way enlarged, without the votes of twothirds of all the members elected to each house. Had there been any intention to carry the provision further, and to guard against the repeal of a charter, it can hardly be doubted, that some appropriate word, such as repealing, dissolving, abolishing, impairing, would have been either substituted or inserted. To say then that the framers of the Constitution designed, by the word "altering," to protect the enjoyment of corporate franchises, is to suppose that

« AnteriorContinuar »