stating that "acts of the legislature conferring corporate powers upon mere State agencies — bodies of citizens who have no personal or private interests to be subserved, but are simply required by the State to do some public work — are not acts conferring corporate powers, such as are referred to in the constitution"
How later courts described this case
- stating that "acts of the legislature conferring corporate powers upon mere State agencies — bodies of citizens who have no personal or private interests to be subserved, but are simply required by the State to do some public work — are not acts conferring corporate powers, such as are referred to in the constitution"
Written by the judges who cited it.
The opinion
N. W. Norton, Special Judge (dissenting). The only question presented is the validity of this legislation. All' cases involving the constitutionality of legislative action are important, and to be proceeded with in great caution, even when, in a pecuniary way, there is but little at stake. Here our caution is invoked as well by the magnitude of the undertaking—-the construction of a levee against the waters of the Mississippi river through a fund to be raised from lands lying in eight counties of this State. Its cost, it is said, is to be counted in millions ; and its erection appears to be a matter of exciting interest to the owners of lands to be affected—many favoring and many opposing the scheme.
This court has nothing to do with the wisdom or feasibility of the plan, nor can we look into' the reasonableness of its provisions. If they are unreasonable, harsh or improvident, they must yet stand; and all of these are questions for the consideration of the legislature, and not for the courts. Unless the acts in question infringe upon some express or implied provision of the constitution, they must stand, even though they be unjust. Hvery presumption is to be indulged in their favor. If of doubtful validity, they must be upheld. If the provisions are separable, and some are good, some doubtful and some bad, the good and doubtful parts must be upheld, and the bad held void.
Among many other objections urged by appellants, the point is made that the legislation is in violation of sec. 2 of art. 12 of the constitution. That section is as follows : “The g*eneral assembly shall pass no special act conferring corporate powers, except for charitable, educational, penal, or reformatory purposes, where the corporations created are to be and remain under the patronage and control of the State.”
It is conceded that the acts are special acts, and that, in terms, corporate powers are created thereby. In avoidance of the effect that apparently should follow, counsel for appellee contend : (1) that only a quasi corporation was created; (2) that if a corporation was created, “the ‘body politic and corporate’ feature may be entirely eliminated, and the act remain, as does the levee act of March 20, 1883, establishing a system for protecting the lands of Chicot county, which act, in Davis v. Gaines, 48 Ark. 370 , successfully stood the test applied by this court.” The case of McGehee v. Mathis, 21 Ark. 40 , is also cited and relied on by counsel for appellee. In it levee legislation was upheld.
We will first consider to what extent the case at bar is controlled by these two decisions of this court.
The act of March 20, 1883, involved in Davis v. Gaines, provides that the county court shall examine and compare the returns of elections for levee inspectors ; that the county court shall levy the levee tax in much the same manner that it levies the taxes of school districts and incorporated towns. It contemplates the use of the assessments made for State and county purposes, by the county assessors ; provides that the levee tax shall be placed on the tax books and collected as other taxes by the county collector, and by him paid over to the treasurer of the levee board; and also makes the clerk of the circuit court ex-officio clerk of the board of inspectors.
The act involved in McGehee v. Mathis, judging from the opinion, was much the same, except that under it the annual levee tax was to be fixed by the county court. From these it may be taken as established that levees may be built through the machinery of county organizations, in conjunction with a board of levee inspectors possessed of much power and discretion. As counties are not “corporations” in the sense the word is-used in art. 12, Const. ’74 (as held in Pulaski County v. Reeve, 42 Ark. 54 ), it follows that the constitutional inhibition against the conferring of corporate powers by special act is not violated by a legislative imposition of new duties and powers upon county organizations, and if, in the exercise of these new duties and powers, the county organization is called to act in conjunction with a board in itself obnoxious to no constitutional provision, it is obvious that the two, taken together, would possess no constitutional infirmity.
If there was contention in McGehee v. Mathis and Davis v. Gaines that the board of inspectors was not •constitutionally formed, the findings were in favor of its validity. Manifestly, however, considerations multiply in proportion as the powers and duties of the levee board are increased through an abandonment of the county organizations, which, as we have seen, could be •constitutionally empowered to perform many of them.
We have here to consider a board of levee directors, disconnected with all county organizations, intended to be self-sufficient and independent, and possessed of full corporate powers expressly conferred. Necessarily, its foundation must undergo an examination it would not be called on to bear, had it the limitations of its predecessors.
It becomes necessary for us to determine whether the body created by this legislation is a corporation or a ■quasi corporation.
In Levy Court v. Coroner, 2 Wall. 507 , the Supreme Court of the United States held the levy court to be a quasi corporation, saying: “Its functions are those which, in the several States, are performed by ‘county commissioners,’ ‘overseers of the poor,’ ‘county supervisors,’ and similar bodies with other designations. * * * * If not a corporation, in the full sense of the term, it is a quasi corporation, and can sue and be sued, in regard to any matter in which, by law, it has rights to be enforced, or is under obligations which it refuses to fulfill. This principle, a necessary one in the enlarged sphere of usefulness which such bodies are made to perform in modern times, is well supported by adjudged cases.” In School District v. Insurance Co. 103 U. S. 707 , the court say : “What is meant by the words ‘quasi corporation,’ as used in the authorities, is not always, very clear. It is a phrase generally applied to a body which exercises certain functions of a corporate character, but which has not been created a corporation by any statute, general or special.” In a note to Todd v. Birdsall, 13 Am. Dec. 523 , it is said of quasi corporations “It seems therefore to be a distinctive characteristic of this class of corporations that their powers and privileges are not derived from an express charter or articles of incorporations.” In Angell v. Ames, Corp. (10 ed.). sec. 23, it is said: “Both towns and other political divisions, as counties, hundreds, etc., which are established without an express charter of incorporation, are-denominated quasi corporations.” In 1 Morawetz, Corp. sec. 6, it is said : “Associations and government, institutions, possessing only a portion of the attributes which distinguish ordinary private or public corporations, have sometimes been denominated quasi corporations.” In 1 Dillon, Mun. Corp. sec. 22, it is said:-. “Corporations intended to assist in the conduct of local civil government are sometimes styled political, sometimes public, sometimes civil and sometimes municipal,. and certain kinds of them, with very restricted, powers. quasi corporations.” In 1 Spelling, Corp. sec. 20, it is. said: “Often in the administration of governmental affairs, and sometimes in the transaction of business of a public nature, it becomes necessary for men to organize themselves into permanent collective bodies. Upon some of these the law has conferred rights and powers very like those enjoyed and exercised by corporations; and. to that extent, and no farther, they are corporations.. To distinguish these from those regularly constituted and clothed with complete corporate authority, they are termed quasi corporations.” In 1 Beach on Public Cor-porations, sec. 3, it is said : “ Public corporations, then, •using the term in the limited sense in which it is used in the text-books and cases, are subdivided into municipal .and public quasi corporations. Municipal corporations ■embrace incorporated cities, villages and towns, which are full-fledged corporations, with all the powers, duties and liabilities incident to such a status; while public quasi corporations possess only a portion of the powers, duties and liabilities of corporations. As instances of the latter class may be mentioned counties, hundreds, townships, overseers of the poor, town supervisors, school districts and road districts. It must be, borne in .mind that public quasi corporations and quasi public corporations are entirely distinct classes ; the former being represented, as we have said, by townships, counties, and such g-overnmental subdivisions of the State, the latter being represented by corporations the property of which is devoted to a use in which the public has an interest, such as railroads, grain elevators, telegraph companies and similar corporations.” The term quasi corporation may also properly be used in some instances in connection with private associations. In Spelling on Private Corporations, sec. 23, it is said: “Joint stock companies may be cited as qziasi corporations of a private character. They have some of the features of a co-partnership, and others of a private corporation.
Prom these authorities we conclude: (1) That a quasi corporation is something less than a corporation. (2) That the absence of a charter, conferred either by general or special act, is the criterion for determining that a given collective body is only a quasi corporation. (3) That a quasi corporation is an unincorporated collective body, having public functions to perform, and which the courts, from necessity, have been compelled to treat like a corporation, to the end that its duties might be discharged, and the purpose of its existence carried out. (4) That where a corporation is expressly created by statute, and given full corporate powers, it cannot be treated as a quasi corporation, but must stand as a corporation, either public or private.
The public character of a corporation can never be allowed to reduce it to the grade of a quasi corporation. To so hold would put an end to public corporations ; and we would have only private corporations and quasi corporations. It is the presence or absence of corporate power and authority that enables us to determine whether or not a given body is a corporation or only a qtiasi corporation, and not the character of work the body is to perform.
Against this view of the law, the case of Beach v. Leahy, 11 Kas. 23 , is pressed upon our attention. It was there held that a school district was only a quasi corporation, although declared by the statute to be a body corporate. The decisions upon which the ruling is grounded are cases where it was held that incorporated towns were not liable for accidents caused by defective streets, sidewalks, etc. It strikes us that non-liability for such accidents is no test, when the question is whether or not a given corporation created by special act is within or without the constitutional inhibition. We also think the opinion overlooks the evident truth that bodies which are as a rule only quasi corporations may at any time have full corporate powers conferred upon them, after which it would be manifestly wrong to continue to call them quasi corporations. School districts very generally appear in an enumeration of quasi corporations. But they anywhere could be complete corporations. It is doubtful if this court, in a case involving a school district, could follow Beach v. Leahy. The statute makes them corporations (Mansf. Dig. secs. 6172-3), and in Davis v. Gaines, 48 Ark. 370 , this court, in passing •on the levee board then being considered, said it is not a corporation, “as a school district is.” But, be all this as-it may, the weight of authority is against Beach v. Leahy. Board of Com'rs v. Brockman, 35 N. E. 887 ; State v. Cincinnati, 20 Ohio St. 18 ; State v. Cincinnati, 23 Ohio St. 455 ; State v. Pugh, 43 Ohio St. 98 ; Clegg v. School District, 8 Neb. 108 ; School District v. Insurance Co. 103 U. S. 707 .
The case of State v. Stewart, 74 Wis. 620 , is also cited as closely in point. It seems the act there involved did not in terms create a corporation. We find this clause-in the opinion: “They (the drainage commissioners) exercise • many powers of regular corporate bodies, and the act stems to constitute the drainage commissioners a corporation to accomplish and carry out the work of the proposed system of drainage.” Another clause is : “The main object of this clause of the amendment may have been to prohibit the legislature from granting corporate powers and privileges to private corporations, except by general law; but we are not prepared to say that this was the only object of the clause.” The court, in the language just quoted, declined to construe the constitution ; and, as the legislation was upheld, the true ground of the ruling must be taken to have been that the court considered the body only a quasi corporation. It is plain that, had a corporation been created, there would have-been no way to dispose of the case, and at the same time avoid a construction of the constitution-. In our opinion the case does not affect the case at bar.
Three other points in argument remain to be disposed of: (1) That the legislation may be referred to-the police power, and in that way upheld-; (¶) that the levee board is only an instrumentality of')filiestate in the prosecution of a great public work; and (3) that the body politic and corporate feature may be stricken out, and the remainder of the acts be allowed to stand, and the work be prosecuted under their provisions. -
Of the first we will only say that, in our opinion, it is in the exercise of the police power that all corporations are created.
Of the second—that the levee board is only an instrumentality or State agency in the prosecution of a great public work—we say, thus defined and characterized, it is placed squarely within the mischief intended to be prevented by the constitution, as well as within the letter of the inhibition. The makers of the constitution foresaw that legislatures to come might want to prosecute some public work through the instrumentality of a corporation created by special act, and, with four exceptions for educational, penal, reformatory and charitable purposes, they provided it should not be done. It is beyond our power to add “levees,” and make the fifth exception.
We are next urged to the view that the section declaring the board to be a body politic and corporate may be stricken out, and the remainder—the working part of the act—be allowed to stand. If one unlawfully created corporation could be saved in this way, so could the next and all subsequent ones. It would stand admitted, sooner or later, that the thing really stricken out by the ruling was the inhibitory section of the constitution. With such a precedent, the legislature need feel no hesitation thereafter in creating corporations by special act.
Judge Brewer, in Beach v. Leahy, said he would look behind the statutory declaration that a school district was a corporation, and see whether it was or not. The principle is undoubtedly correct—a court should look at the thing named. There is nothing in a name. But it is equally true that there is nothing in the absence of a name; and should we, by striking out the section indicated, deprive this levee board of its corporate name, there would be no way to escape the conclusion that a body with full corporate powers remained.
We are met with the suggestion that to hold this legislation void is to do so upon a technicality. We cannot agree to this. All admit the vices of special legislation, and the people of this State, in the organization of the present government, stipulated that no corporations should be placed over them, except such as should be created under general laws. It is well known that special acts are passed with slight consideration. Those who want them are, in character, petitioners, and the other members of the general assembly give them practically no consideration, having no interest in opposing them, or in seeing that they are provided with proper restrictions. The constitution contains all that could be said to prevent the creation of corporations in this vicious way. We see it possible to be remarked that a quasi corporation created by special act might be as oppressive as a corporation so created. This would rarely be true, because of the greater powers that corporations have; but if it were entirely true, the fact would remain that the creation of corporations by special act is inhibited, and the creation of the inferior collective body is not. That the constitution is not broad enough to give protection against both is no reason why it should be denied application to complete corporations, such as we find the one to be that is under consideration. It is said, in the opinion of the majority in this cause, that the members of the general assembly are the judges of the propriety of the enactment of special laws, and of the applicability of general laws. This is true, according to the weig'ht of authority, whether correct in principle or not. But it seems safe to say that the doctrine has never before been extended to the creation of corporations by special act. The creation of a corporation is not the enactment of a law, in the sense of the provision that “in all cases where a general law can be made applicable, no special law shall be enacted.” (Const. 1874, art. 5, sec. 25).
The right of the State to levee the Mississippi river, whether under the police power or some other power, is not assailed by the appellants, and needs no defending. We take it to be conceded that the State has the power. The instrumentality through which the work is to be prosecuted alone is attacked. The right to levee the river does not carry with it the right ■to do it through a forbidden agency. The appellants have a right, under the constitution, to say that, if it must be done by a corporation, it must be a corporation formed under a law for the existence of which every member of the general assembly enacting it would be under accountability to his constituents, because of its’ general terms.
The constitution was, by the statesmen and people ■of that date, made as they wanted it, for us to enforce as we find it, in affairs large and small. The principles upon which this government should proceed are there recorded. They are the highest law and invaluable— yet worthless if denied application.
As we view the legislation being considered, we have no doubt of its being in violation of both the letter and spirit of our constitution, in so far as it looks to the prosecution of the work through the instrumentality of thé corporation created. Some parts we would uphold, but, as all are upheld by the majority opinion, we omit the useless task of separation.
Justice Wood concurs with me in this opinion.