Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-09-04
CHARTERS.
How they Must be Obtained-Chan.
celIOr COOpeF's Opinion Sustained.

ceElOr COOPER Opl0lOn SusbhhHOus
Our readers, and particularly the bar,
are familiar with the opinion delivered i,y
Chancellor Cooper in the Chincery Court
on the subject of charters. The question
afterwards came Up in the Arbitration or
Special Supreme Court, and an opiaion was
delivered by Chief Justice Nicholson, sus-
taining the opinion of the Chancellor below.
The Supreme Court which met yester-
day affirmed the decision, The following
is The opinion of Judge Nicholson:
Thomas ChadweI and others, ex parte.
This is an application to the Chancellor
st Nashville, by Thomas Chadwell and
others, citizens of Davidson county to be
constituted body poll ic ard corporate,
by the name and style of "Beershebl
Springs Compang." They ask for the usual
corporate powers, together with the right
to purchase, hold and dispose of by sale,
lease or otherwise, all such real estate or
personal properly as may be necessary in
the business OF the company; and es-
pecially to hold By purchase or otherwise,
a certain piece of property, real and person
81, in Grundy county, Tennessee, known as
"Beersheba Springs embracing several
hundred acres of land, upon which is he
lei dnu OluCl UulANIbEcy MANI piOfShAOAbS
and do any and all things necessary in fit
ting and furnishing aud keeping = hotel in
all branches; aud orepair and keep in order
all the public road leading to said hotel; and
to purchase and own wsy-statlons, etc.
They ask that their capital stock may be
$4,000, divided into shares of 500 each,
etc. Chancellor Cooper refused 10 grant
the prayer Of The petitioners upon two
grounds: -
l. Because there is no general law passed
by the Legislature, which authorizes the
organization of such corporation BY the
Chancery Court. ....
2. Because the Legislature has no power
under the Constitution TO vest ia the Chan
cellor the power to create corporations OF
any kind; and hence, that the acts of the
LEXIS azure, so far IS they may have sought
to confer such power on the Chancery
Court, are unconstitutional and void.
The petition having been dismissed, the
Chancellor refused to grant an appeal to
this court upon the ground that in organic
ing or refusing to organize corporations, his
action vas purely ministerial, and therefore
his action constitutional, no such judgment
or decree as autborizsd an appesl there
from, but that the parties could have their
remedy by writ OF error. The cause is &C
cordingly in this court by writ of error. Is
is not insisted that there is any genera! law
prCvidi'g for the organization of corpora
tons for the purpose of managing and car
rying Cd hotels as prayed for in the peyi-
tiop; but it is insisted that under section
1907 0.) OF the Code (section 10 of the act
of 1S70.D, the Chancery Courts have full
power to incorporate private companies to
carry on any local business, contiled IN It's
locality to the limits of single county, and
that if the court fiDds that the business pre-
posed is legitimate, and rot hurtful 10 the
public good, then letters of incorporation or
charter shsli issue. 1t is above seen that
this provision of the statute was enacted un-
der the assumption, that as to such local
business, the Legislature had the constltu-
tional right TO transfer to the Chaneery
Court the power to create and organize sucn
corporations.
The deter inst on of the question thus
presented involved the construc ion Of arti.
Gle IL, section g, of the Constitution of 1870,
as follows: Sections: The Legislature shall
have no power TO suspend any general law
for the benefit of any particular individual,
nor to pass any law for the benefit of lndi-
vijuals inconsistent with the general
laws of the land; nor to pass any law grant
Ing to any individual, or individuals, rights,
privilege immunities or exceptions, other
than such as may be, by he same law, ex-
tended to any member OF the community
who may be able to bring himself within the
provisions of such law. No corporation
shall be created, nor its powers increased or
diminished, by special Law; but the General
Assembly shall provide by general laws for
the organization Of all corporations hereaf-
ter created, which laws may at any time De
altered or repealed, and no such aitera Ion
or repeal shall interfere with or diVest rights
which have become vested.
This section, down to the clause COM
mencing: incorporation shall be created"
ETC., is a COPY Of the corresponding section
in the Constitution of 1884, in Whic' there
was this provisc: Provided Gt'odys the
Legislature shall have power to grant such
charters of Incorporation as they may deem
expedient for the public good.
In the case of the State vs. Armstrong, )
Sneed, 634, it was held, that the power to
create corporations, reserved to the Legisla'
ture By the proviso to sec. s, art. IL, OF the
Constitution of 1884, could not &c trans
ferred by the Legislature to the Judlcl2i de-
partInent of the government, except by spe'
cial authority of The Consultation Itself. 1t
follows necessarily, that if the CONSTITUTION
of 1870 has failed to give special authority
to the Legislature, to dev I've the power OF
creating Corporations % the Judicial depart
ment, the act of 1901, in so far as 1t I'M
oertakes to make such devolution OF power
upon the Chsncery Court, is unconstitution-
al ana void.
This brings US to the , GITecs gGgsuT1'
section 8, either expressly or by necessary
implication, authorize the Legislature to
vest in the courts the power to create as
well as to organize corporations?
1t is a matter of legislative and Judicial
history that the S.h section Of article II OF
the Constitution Of 1884 was intended TO
operate as g check up thae species oiIeg-
islation, which conferred special privileges
and benefits on individuals which were not