1 Doug. 351 | Mich. | 1844
delivered the opinion of the Court.
In support of the demurrer, it is insisted that the act to organize and regulate banking associations, under which the Bank of Niles was organized, is repugnant both to the letter and to the spirit of the second section of the twelfth article of the constitution of this state, which provides, that “ The Legislature shall pass no act of incorporation, unless with the assent of at least two-thirds of each house.”
The authority of this Court, to declare laws which are passed in violation of the constitution, void and inoperative, cannot be questioned. The duty to do so, when a proper case is presented, is imposed upon us by the constitution, and by our oaths of office. We feel bound to consider and decide questions of this nature with great deliberation, but at the same time with great firmness. And it may be proper here to remark, that we adhere to the rule sanctioned by the Supreme Court of the United States, and adopted by this Court, the wisdom and propriety of which is unquestionable, that, to authorize the judiciary to pronounce a law unconstitutional, the conflict between the constitution and the law must be apparent and palpable ; an infraction of the provisions of the former must be established beyond all reasonable doubt; otherwise the law must be sustained. Considerations of mere expediency can never legitimately enter into the discussion of questions involving the constitutionality of a law. The only question that can be considered is one of power.
A brief analysis of the “ act to organize and regulate banking associations,” is necessary to the right understanding of the question presented for our consideration.
The first section provides that, “ whenever any persons resident in any of the counties of this state shall be desi
The third section prescribes that the capital stock of such associations shall not be less than fifty thousand dollars, nor more than three hundred thousand dollars.
The fourth, fifth, sixth, and seventh sections relate to the manner of opening the books of subscription, the distribution of the stock, the election of officers, &c.
The ninth section provides that “all such persons as shall become stockholders of any such association, shall, on compliance with the provisions of this act, constitute a body politic and corporate, in fact and in name, and by such name as they shall designate and assume to themselves, which name shall not be changed without the consent of the legislature; and by such name they and their successors shall and may have continual succession, and shall in their corporate capacity be capable of suing and being sued, pleading and being impleaded, answering and being answered unto, defending and being defended, in all courts and places whatsoever; and that they and their successors may have a common seal, and that they and their successors by such name as they shall designate,
These sections of the act clearly indicate its nature, and show that the associations formed under its provisions are corporations. They possess all the characteristics of corporations, and must have been so declared to be, had not the legislature thought proper so to designate them.
Before testing the act by the constitution, it is proper to state here some of those general rules, of universal application, by which courts are guided in the interpretation of laws. Among these rules are the following: (1.) The words of a statute are to be taken in their ordinary signification and import. (2.) The real intention, when accurately ascertained, will always prevail over the literal sense of terms. 1 Kent’s Com. 462; Dwarris on St. 40. (3.) The reason and intention of the lawgiver will control the strict letter of the law-, when the latter would lead to palpable injustice, contradiction or absurdity. (4.) When the words are not explicit, the intention is to be collected from the occasion and necessity of the law, from the mischief felt, and the remedy in view; and the intention is to be taken or presumed according to what is consonant to reason and good discretion. (5.) The cause or reason of the act may either be collected from the statute itself, or discovered from circumstances extrinsic of the act. Dwarris on St. 44. (6.) The construction to be put upon the act must be such as is warranted by, or at least not repugnant to, the words of the act; and where the object of the legislature is plain and unequivocal, courts ought to adopt such a construction as will best effectuate the intentions of the lawgiver; but they must not, in order to give efiect to what they suppose to be the intention of the legislature, put upon the provisions of a statute a con
I have thought it most convenient thus to collect and state the foregoing rules, as I shall have occasion to apply them in the course of this opinion. They are equally as applicable to the interpretation of written constitutions, as of statutes. The want of skill and foresight, and the imperfections of language, give rise to the same doubts and difficulties in the construction of the one as of the other; although, from the greater care and deliberation exercised in the formation of written constitutions, the difficulties in their interpretation arise less from looseness or ambiguities in expression, so often found in statutes, than from the difficulty in ascertaining the true object, scope, and spirit of those broad principles of fundamental law, which can only be expressed in general language.
I will now proceed to consider the natural import of the words used in that provision of the constitution, which it is contended has been violated by the act in question. Under the territorial government, and under the state government until the general banking law was passed, the usual mode of creating a corporation was by a special act adapted to each particular case. With respect to banks or monied corporations, the practice was uniform; the only exceptions to the general rule embraced a class of corporations denominated quasi-corporations. It is fair then to infer, that when the framers of the constitution made use of the words “act of incorporation,” they had reference to the practice which had prevailed from the organization of the territorial government down -to the period of the adoption of the constitution. A general law, by.which individuals, to the number of twelve, could multiply indefinitely monied corporations, was unknown in the history of legislation, either in this state or any other state or country. It is an invention of modern times. It
Again : do not the words “the legislature shall pass no act of incorporation,” &c. necessarily imply that the act itself would create the corporation? Such would seem to be the plain meaning of the words. If the language of the constitution had been, “ the legislature shall pass no act for the creation of corporations,” &c. a different interpretation would have been warranted, and the enactment of the general banking law might have been justified. But the words actually employed by the framers of that instrument, would appear to negative the idea that a corporation could be created in any other manner than by the direct act of the legislature. In written constitutions, we are accustomed to look for, and have a right to expect, clearness and perspicuity of style and language. Each provision is presumed to have been deliberately considered and carefully guarded, so as to leave no room for doubt or uncertainty. The history of the past had offered admonitory lessons of the danger of using language which might admit of a twofold construction, and thus subject the fundamental law to be moulded in such form as to suit the purposes of those who might invoke the aid of the legis
Where a provision of the constitution is couched in language explicit and clear, this Court is restrained from enlarging or restricting the plain and obvious import of such provision. We are bound to presume that the framers of that instrument intended to do precisely what they purport to have done. Neither the legislature nor the judiciary can enlarge or limit the meaning of a provision, when its language admits of but one construction. If this were permitted, constitutions would be of little value. Interpolations would from time to time be made by legislatures and courts, and the result would be, that, instead of a constitution and form of government traced by the hand of the people, we should have a constitution possessing, it is true, some of the features which belonged to the original, but so unlike it in other respects, as to be difficult of recognition: — in other words, we should have a constitution with the will of the legislature and courts impressed upon it, rather than the will of the people. Against such evils we must guard; to the exercise of such power, we are bound to oppose a firm resistance.
It is fully admitted that, in the absence of any constitutional inhibition, it would be competent for the legislature to give a general power to erect corporations indefinitely. Angel & Ames on Corp. 45. This power might be vindicated on the principle that qui fuck per alium, fuck per se ; the persons to whom such power is delegated being only instruments in the hands of the government. Do the words, then, of the provision under consideration limit this power ? If a literal construction is to be given to that provision, it would certainly indicate an intention on the part of the
This view of the constitution is strongly fortified by the opinion of Chief Justice Nelson, in the case of Thomas v. Dakin, 22 Wend. R. 76. He says, “Two different constructions of the 9th section are claimed. For the defen
While the “ bill to authorize associations for the purpose of banking” was under consideration in the legislature of New York, doubts arose as to its constitutionality, and a resolution was adopted calling upon the Attorney General for an opinion upon that question. That opiniqs by Mr. Beardsley, then Attorney General, in/ dares that the provisions of the bill were the constitution, and sustains his views in a terly argument. I do not cite that opinion this case, but refer to it to show the views of acknowledged ability'upon a question of greaUpT terest; and as entitled to some consideration, as it was given- officially, and at the request of the legislature.
I have laid it down as a sound rule of construction, that the real intention, when accurately ascertained,-will prevail over the literal sense of terms; and further, that the reason and intention of the lawgiver, will control the strict letter of the law, when the latter would lead to palpable injustice, contradiction, or absurdity.
It becomes necessary, then, to inquire into the reasons and object of the constitutional provision in question, that we may be able to determine with accuracy its true spirit and meaning. The restriction contained in the provision is unusual, and repugnant to all our notions of a representative government, where the vote of a majority controls in primary assemblages of the people, at an election, in our legislative halls, and in courts of justice. So deeply has this principle taken root, that the patriotism of an individual is questioned, who does not readily submit to the will of a bare majority, in all cases where the voice of that majority is, by the constitution, or law, declared to be decisive. The framers of the constitution, therefore, in incorporating into that instrument a rule in opposition to a principle which lies at the foundation of our political system, must have found their justification in the conviction that such a provision was called for by imperious necessity, or from motives of policy, so strong and overru
The case of Falconer v. Campbell, 2 McLean’s R. 195, sustains the constitutionality of the “Act to organize and regulate banking associations.” It is an authority entitled to respectful deference, and I should have been better satisfied with my own conclusions, had they been sustained by the distinguished man and able judge who delivered the opinion in that case. I have had occasion, already, in the course of this opinion, to express my views upon most of the reasoning upon which this decision of Judge McLean was based. One or two other points, however, remain to be considered. It is said that, notwithstanding the restrictive clause in our constitution, it would clearly be competent for the legislature to create several corporations in one act, and, if so, then an indefinite number may be embodied in one act; and if an indefinite number may be embodied in one act, why may not the legislature pass
But it was contended in argument, that there had been a direct legislative sanction of the incorporation of the Bank of Niles, by an amendatory law which took'effect on the 10th of. January, 1S38. This law covers the whole ground occupied by the original act, with some modifications of a salutary nature, and declares that all banking associations, incorporated under the act to which it was an amendment, should, within ninety days from the passage of that act, give the security required by the 6th section of that act, and should, in all other respects, be subject to, and governed by tbe provisions of that act. The reasoning of Mr. Justice McLean, as to the effect of this amendatory law, is as follows: “If it were then admitted, that under the_first act the associations formed were not incorporated, are they not incorporated by the second? Its provisions confer corporate powers, and they apply to associations then subsisting under the former law. This designates these associations with as much certainty as if they had been specially named in the amendatory act; and can there be any doubt that this act would confer corporate powers on these associations, if, under the former, they had not received them ? As it regards banking associations then subsisting, it could not be contended that the legislature disregarded the restrictions of the constitution, by creating or authorizing an indefinite number of banks.
By reference to page 180 of the journal of the convention, it appears that the following provision was adopted, in committee of the whole, by the convention; “The legislature shall pass no act of Incorporation unless with the assent of at least two-thirds of each branch thereof; and every act of incorporation shall contain a clause reserving to the legislature the power to alter or repeal it: Provided, that it shall require two-thirds of all the members elected to both houses to repeal any such act of incorporation.” It is manifest from this provision, that, while two-thirds of the members of each house were required to repeal an act of incorporation, a mere majority was sufficient to alter it. Subsequently, the provision was amended by striking out all after the word “thereof.” The practice of the legislature under the restrictive clause, it is believed, has been consistent with the constitution as it now stands, and with the views of the constitution expressed in the provision above quoted. The question arose in the first house of representatives which assembled under the constitution, and it was then decided that the restriction did not apply to bills amendatory of existing acts of incorporation. The same decision was made by me at the same session, while speaker of the house of repre
It is to be lamented that the grave question we are now called upon to decide, was not presented to this Court at an earlier period, and immediately after the passage of the obnoxious act. Our decision would have stayed the torrent which has swept over the state with effects so desolating, and preserved individual and state credit from the stigma and reproach which befel both ; and. I regret that the question has now been forced upon our notice, satisfied, as I am, that the public interest, under existing circumstances, would be best promoted by sustaining the law.
The result of our deliberation then, is, that so much of the act under which the Bank of Niles was organized, as purports to confer corporate rights upon the associations organized under its provisions, is unconstitutional and void; and that the demurrer in this case must be sustained.
Demurrer sustained.