corporations were not expressly created or authorized. The associations formed under it were not corporations, by implication. An association of men would not be deemed a corporation by implication, except where corporate authority was necessary to the exercise of beneficial powers expressly granted, or for the protection of important interests, or the execution of important trusts; nor would such associations be deemed to possess corporate powers, unless such powers were solicited by the donees of the power. These associations were not corporations by implication, for the following reasons: There was no necessity that they should possess corporate powers to carry into effect the objects for which they were authorized. Such powers were not solicited by the public in their appeals to the legislature for this law. The legislature did not intend to create or authorize corporations, nor had it done so by conferring the powers and privileges which those associations were authorized to use and enjoy. At common law most of those privileges were claimed and had been long exercised by private associations, copartnerships, and joint stock companies. But if these associations were deemed to be corporations, the law authorizing them was not within the mischiefs intended to be remedied, and therefore not within this inhibitory clause of the constitution. The evils intended to be guarded against were the exclusive character and undue multiplication of corporations, possessing and exercising banking powers, which, by means of the restraining acts, had grown into monopolies. The effect of this act was to repeal pro tanto the restraining act, and thus restore to the citizens generally a common law right of which they had been deprived. The act, instead of violating this, provision of the constitution, came in aid of it, and was therefore a constitutional act, although it did not receive the assent of two

thirds of the members elected to each branch of the legislature.

§ 303. The Chancellor placed his decision on the ground that the constitution of a state, like an act of the legislature, must be construed according to its spirit and intent; taking into view the evils intended to be remedied, and the danger sought to be guarded against. This prohibitory clause in the constitution was intended. to guard against the increase of joint-stock corporations, either for banking, or for other purposes of trade or profit, the charters of which conferred exclusive privileges, and which when obtained were beyond the reach of general legislation, so that they could neither be modified or repealed. This provision was not intended to restrict the powers of the legislature so as to prevent the granting of an equal right or privilege to all the inhabitants of the state, or to so many of them as should choose to associate together for the purposes of trade, or other lawful business, during the continuance of the act granting the privilege, provided such privilege was at all times subject to the control of general legislation. He conceded that these associations had the right in their collective capacity, to hold property in common, and in a manner in which individuals were not permitted to hold it, and transmit the same to others by an artificial and continued succession, and possessed powers which were distinguished characteristics of a corporation. Had the act guarantied the continuance of such powers and privileges, so that the same could not be taken away by a simple repeal of the law, or be modified by general legislation, the act would have been within this clause of the constitution. But that these powers, privileges and immunities, could only endure while the act remained in force, and might be modified or repealed by the legislature by a vote of less than two-thirds; and

hence, the act was not within the spirit or intent of this restrictive clause in the constitution.

§304. Senator Verplanck held, that the associations authorized by this act, were partnerships or joint-stock companies, and not corporations. This provision was intended to guard against the undue increase of institutions enjoying exclusive privileges, and operating as monopolies. The act in question, instead of conflicting with the constitution, came directly in aid, by opening the business of panking to all who chose to engage in it, upon complying with the requisitions of the legislature. (a) Thus, it will be perceived, that this important question has been definitely settled in the court of der

nier resort.

§ 305. Notwithstanding the decision by that court thus explicit on this question, the former supreme court of this state uniformly adhered, as well before as since the above named decision, to the doctrine that associations created by or organized under the act of 1838, are corporations. (b) The court for the correction of errors has itself decided (c) that associations formed under this law, are corporations within the statute relative to taxation. Hence, in the same court, we have presented the anomaly of deciding that they are not corporations within the spirit of this clause in the constitution, which it conceded is directed at the creation of monied corporations, and that they are corporations, and monied corporations too, within statutes aimed at such kind of corpo

(a) See also, Gifford v. Livingston, 2 Denio, 380.

(b) Thomas v. Dakin, 22 Wend. R. 1; Delafield v. Kinney, 24 Wend. R. 345; In the matter of the Danville Bank, 6 Hill's R. 370; The People v. Assessors of Watertown, 1 Hill, 616; De Bow v. The People, 1 Denio's R. 9; Willoughby v. Comstock, 3 Hill, 389; The People v. The Supervisors of Niagara, 4 Hill, 20.

(c) The Board of Supervisors of Niagara v. The People, ex rel. McMartin, 7 Hill, 504.

rations, and that too accompanied with a concession that the constitution was intended to apply to that kind of corporations. We are aware that the Chancellor, in the case of Gifford v. Livingston, (a) undertook to reconcile the manifest inconsistency of these decisions. In regard to the decision of The Supervisors of Niagara v. The People,(b) he said, "That decision it is true, does declare them to be corporations, but the actual judgment given by the supreme court, or by this court in that case, can only be sustained upon the supposition that such associations were legal and constitutional corporations, so as to be taxable as corporations under the general tax law. For, if they were merely illegal and unconstitutional associations of individuals, their property would not have been taxable as corporate stock at the place where the office of the association was located, and by the corporate name, but each individual stockholder would be taxable for the actual value of his interest in such stock, so far as that interest consisted of personal estate, according to the provisions of the general law. The mandamus asked for in that case was, to compel the supervisors of the county of Niagara to place the name of one of these associations upon the assessment roll, and tax it as a corporation; and the supreme court directed a peremptory mandamus accordingly. That judgment was brought to this court upon a writ of error, and was affirmed. Now it is evident, that if the general banking law was unconstitutional, an association attempted to be created under it, would have no legal existence as a corporation, and could not therefore be taxed as such. In the language of one of our most able and distinguished judges, 'If the general bank law was

not a constitutional exercise of power on the part of the legislature, it follows that there was no such legal being as the Bank of Lockport to be taxed.' In justice to the supreme court, it is however proper to say, I have been informed by the Chief Justice of that court, that the counsel in the Lockport case did not advert to the fact that the banking association could not be taxable as a corporation, if the general banking law was an unconstitutional act." With due deference we submit, whether these observations of the learned Chancellor obviate in the least, the charge of inconsistency urged against that court, for pronouncing what we conceive to be manifestly inconsistent and irreconcilable decisions upon this question? One thing is certain, these associations are the creatures of the statute, and as such, if they are for any purposes a corporation, it is because the statute makes them such; for no corporation under our form of government can, or does exist, independent of some statutory creation; hence, if the statute created them, or authorized their creation, it did create or authorize their creation as corporations, otherwise they could not be taxed as such. The decision, that as corporations they were taxable, did in fact, of necessity decide that they were corporations-nay more, that they were monied corporations; or in other words, that they were just what the constitution had declared should not be created, except by the assent of two-thirds of all the members elected to each branch of the legislature. Nor can any one doubt that they would unquestionably have been declared such by that court, had it not acted under the influence of extraneous matters affecting, to a great extent, the commercial community of one of the greatest and most important commercial states of the United Confederacy. We fully concur in the view of this question expressed by Bronson, Chief Justice, in the case of De Bow v. The