State v. Dist. of Narragansett

• Decision Date: 02 February 1889
• Citation: 16 R.I. 424,16 A. 901
• Parties: STATE v. DISTRICT OF NARRAGANSETT.
• Court: Rhode Island Supreme Court

16 A. 901

16 R.I. 424

STATE

v. DISTRICT OF NARRAGANSETT.

Supreme Court of Rhode Island.

February 2, 1889.

Information in the nature of quo warranto. On demurrer to the information.

James Tillinghast, for relators. George J. West and Ambrose Feely, for respondent.

DURFEE, C. J. 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, 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, § 17.) Section 17 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 defense that the chapter is valid—First, because said section 17 is merely directory, and not 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 essential 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. St. R. I. c. 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 re College Street, 8 R. I. 474; Beals v. Rubber 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 Pac. Rep. 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 the people in agreeing to it." Per COOLEY, C. J., in People v. Harding, 53 Mich. 481, 19 N. W. Rep. 155.

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 commonwealth. This fear was aggravated by the decision in the Dartmouth College Case. The fear was specially rife in regard to banks. The meager 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 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 of the republic, 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 regulations must, from the 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 Dill. Mun. Corp. § 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. Ang. & A. Corp. §§ 18, 23, 24. Doubtless it is partly because of the frequency with which corporate powers are so conferred for public purposes 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...