Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1872-12-21

incorporation Is vested by the Constitution
OK this State In the Legislature alone, to be
exercised as high and responsible trust /,
and only In cases where It may be deemed
expedient for the public good. That 1t Is
: among the powers, the exercise of whiclkls
expressly reserved to the Legislature itself,
and one which cannot be delegated. And,
consequently, that the act In question was
unconstitutional and void.
This conclusion was logically reached by
considering that, by the express terms Of
the State Constitution, all authority is in
herent In the people; that, by the same In
strument, (Article II, Section l,) the powers
OF government are divided into three dis
tinct departments, the Legislative, the Exc
cutive, and the Jedlcial; and by Article ii,
Section 2, 1t Is further provided that no one
OF these departments "shah exercise auy Of
the powers properly belonging to either ofthe
others, except In the cases herein directed
and permitted" That the power of grant
ing charters Of Incorporation was high
Government prerogstive, expressly vested
4 in the Legislature; and that, under the con-
stitution, there could be no such thing as
the devolution of power by one department
Il upon another, unless by special authority
OF the constitution Itself, and none such ex-
lists in reference to the power In question.
The delegation of sovereign power is, in IT.
SELF, an act Of sovereignty, and can only be
made by the cons tituent body in whom the
original power resides, or by its express
authority. :
The principle upon which the conclusion
rests, that legislative power cannot be dele
gated unless by special authority Of the
Constitution Itself, is one universally receg-
nized by American courts and jurists. Sse
Cooley on Const., Llm., p. 116 et seq, and
cases cited.
I By the act Of le49, ch. II, the Legislature
OF this State passed general law for the
incorporation Of towns, cities and villages,
pointing out the mode in which it should
be done by petition to the County Court,
and expressly defining and settling the pow
ers and privileges granted to such iDeorpora-
tions. Tho validity of this act was brought
in question in Mayor and Aldermen of Nor
ristown vs. Shelton, Head "a, the case Of
the State VS. Armstrong being principally
relied on In support Of the objections. But
the court held that this was a misconcep-
ton Of the previous case. "That case, they
say, was correctly decided beyond all ques-
| tlon. It was upon the act of 1856, ch. 254,
by which the full and broad power to create
corporations was given to the Circuit
Courts, and was, therefore, held to be in
violation OF the constitution. Not so 10
this act. 1t gives the County Court no
power on the subject but to record the pc
titioD for the benefit OF perfect and COM
plete charter, and desigustes The boundaries
to which it Is to apply, that is, to prescribe
the corporate limits of their town. 1t can
not add to, or diminish the pO1ers, prici- |
leges and imm,usitieS granted, nor make the |
least change of any kind IN the charter. |
The legislative will is fully declared in the |
ac., and nothing Is left to the court but to !
locate and apply 1t to any community l0hO !
may petition for IL, and bring themselves |
acithin its provisions. This is very different |
| from the act Of 1855, by which the extent |
and character of the powers given, and the !
particular objectsNof the corporations toere |
to be fred by the court, or rather, in effect, |
the tcisheS and desires Of the applicants ia |
this respect ratified BY the court. That |
was as palpably in conflict with the consti-
tuition, as this Is IN conformity with it,"
"The object, adds the Court, of the Leg.
islatuye was to save the great waste Of |
time and money consumed in the making |
and printing separate acts for the incorp0- !
ration of the thousand towns and villages |
that might and would spring up 10 this /
suppose that the importance, so far as prac- |
ticable, Of producing uniformity in the |
municipal powers and privileges of the citi |
zens and corporate authorities Of all the |
tewns, had its influence upon them. This |
luould certainly be desirable, and is strong |
consideration in JGror Of the policy Of the |
act"
"This act, the Court continues, sis moth |
ing different In principle, in reference to |
this objection, than what was called the |
free banking law and the constitution |
ality Of that act has not, that we |
are aware ever been questioned. Ii one is |
not obnoxious to the objection, the other Is
not. That uds single complete charter Of |
incorporation ,ohich might be adopted by |
thousand companies, and constitute them |
bodies corporate and polite for the purpose |
of banking, upon compliance tcith its pro-
visions. This was to be done by spplics-
ton to certain State officers, and the per-
formanes of the specified conditions
These two decisions cover the entire sub
ject. An act Of the Legislature, which un-
dertakes to delegate to the courts The power
of creating corporations, is unconstitutiOn
al and void. While an act which defines
the rights, powers and immunities of cor
porations, and leaves to the courts as to
"certain State officers" the duty of 0rgdniz-
ing, Is valid.
In this state of the law, the Constitution
OF 1870 Is sdopted, which contains all the
provisions of the Constitution of 1884 re-
ferred to and commented on in State
vs. Armstrong, with one single mod
ihcation. Art Xl, Sec. Z of the Constitution
of 1884 was in these words: "The Legis-
lature shall havs no power to suspend any
general laws for the benefit of any paFticu-
lar individual, nor to pass any Law for the
benefit of individuals Inconsistent with the
general laws Of the land; nor to pass any
law granting to any individual or individu
ais rights, privileges, immunities or exemp
tions other than such as may be, by the
same law, extended to any member of the
community who may be able to bring him
self within the provisions Of such law;
Provided dll0dys, the Legislature shall have
power to grant such charters Of incorp0T-
poration as they may deem expedient for
the public good"
The new Constitution Of 1870, Art. XI,
Sec. 8, is literal copy of the foregoing, down
to the proviso, which is omitted ,and its place
Is supplied as follows: ''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 here
after created, which laws, may at any time,
be altered or repealed; and no such Altera-
ton or repeal shall interfere with, or
divest, rights which have been vested"
How 1t could hsve been supposed that
this change In the last clause of the SEC
ton had worked change in the Govern
mental perogative Of creating corporations,
it Is difficult TO imagine. The change in
the phrsseology of the section Is simply TO
bring the last clause into harmony with the
first, and to carry into the Constitution 8
provision making that general legislation,
sustained by the Supreme Court in the II.
and A. Of Morristown VS.. Shelton, impera-
tive, which had previously been discretion.
ary with the Legislature. The old COnsti-
tuition sedulously provided for the equality
OF privileges to all citizens, coming within
the provisions of the law, except In the
case of corporations. The new Constitution
says there shall be no such exception. By
the old Constitution the Legislature might
create corporations by special act. By
the new Constitution it can only create cor
porations by general law, and adds, "The
General Assembly shall provide by gener. |