The opinion
McGRAW, Justice,
dissenting:
The analysis of the constitutionality of W.Va.Code §§ 3-8-8(a) and 3-9-14 [1978] should not begin and end with an unquestioning application of First National Bank of Boston v. Bellotti, 435 U.S. 765 , 98 S.Ct. 1407 , 55 L.Ed.2d 707 (1978). In Bellotti , the United States Supreme Court, under the guise of extending First Amendment freedom of expression to corporations, has in reality given constitutional sanctioning to the potential abuses of referendum elections sought to be avoided by approximately 31 state legislatures and Congress, where statutes similar to the ones here in question have been adopted, and has equated corporate speech with the right to freedom of expression accorded natural persons. The error committed by the United States Supreme Court that has been adopted with no analysis by a majority of this Court, is a failure to recognize the artificial nature of corporations.
In West Virginia, the creation of corporations is provided for in Article 11, § 1 (1872) of the West Virginia Constitution, which states that the “legislature shall provide for the organization of all corporations hereafter to be created.” The Legislature carried out this constitutional mandate by enacting chapter 31 of the West Virginia Code, which enumerates in detail the procedures for creating and operating corporations, as well as outlining the rights, duties and liabilities of corporate entities.
It has been long established in this State, and in this country, that corporations are “artificial person, possessing those rights and properties only, which their charter confers on them either expressly or as necessarily incidential to their existence and to the carrying out of the purposes, for which they are created.” Laurel Fork & Sand Hill Railroad Co. v. West Virginia Transportation Co., 25 W.Va. 324, 333 (1884); see also Trustees of Dartmouth College v. Woodward, 17 U.S. (Wheat.) 518 , 4 L.Ed. 629 (1819). Implicit in this statement is the idea that, as artificial persons, corporations are not entitled to the same constitutional rights as natural persons, but rather are entitled only to those constitutional rights that are “necessarily incidental” to the purposes of the corporation. If the denial of certain rights would materially affect a corporation, then those rights are necessarily incidental to that corporation’s existence.
The United States Supreme Court, in cases prior to Bellotti , delineated what rights are necessarily incidental to the purposes of the corporation and those rights that are not. In Bank of the United States v. Deveaux, 9 U.S. (5 Cranch) 61 , 3 L.Ed. 38 (1809), the Court held that a corporation has the right to be a party in federal courts. In Rex Trailer Co. v. United States, 350 U.S. 148 , 76 S.Ct. 219 , 100 L.Ed. 149 (1956), the Court indicated, without expressly so holding, that a corporation cannot be placed in double jeopardy in violation of the Fifth Amendment. In Santa Clara Co. v. South Pacific Railroad, 118 U.S. 394 , 6 S.Ct. 1132 , 30 L.Ed. 118 (1886), the Court held, albeit with no explanation or analysis, that a corporation is a “person” entitled to the equal protection of the laws as guaranteed by the Fourteenth Amendment. In these three cases the United States Supreme Court upheld corporate rights found to be necessarily incidental to a corporation’s existence, although *644 the rationale for the holdings in these cases is not clearly stated in any of the opinions.
More recent decisions can also be justified by application of the rationale that certain rights are necessarily incidental to a corporation’s existence. The right to commercial speech has been granted some First Amendment protection, beginning with Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748 , 96 S.Ct. 1817 , 48 L.Ed.2d 346 (1976). Commercial speech is necessarily incidental to a corporation’s existence because through its exercise the corporation is better able to inform the general public of its products and services, the end result being that more products and services will be sold, which strengthens the corporation. The right to freedom of the press has been extended to newspaper and other corporations in the field of communication. Grosjean v. American Press Co., 297 U.S. 233 , 55 S.Ct. 444 , 80 L.Ed. 660 (1936). Since businesses in the field of communication exist to express and transmit ideas and facts through the various media, it is essential that these businesses have the right to freedom of the press. Groups or corporations organized to advance beliefs and ideas are protected by the First Amendment. NAACP v. Button, 371 U.S. 415 , 83 S.Ct. 328 , 9 L.Ed.2d 405 (1963). The right to associate together for a common purpose is the whole reason for being for groups like the NAACP, therefore freedom to associate is necessarily incidental to such organizations. All three corporations or organizations in these cases would have been materially affected if the court had not extended constitutional protection to them.
The United States Supreme Court, in recognition of the artificial nature of corporations, has denied many constitutional rights to corporations. A corporation cannot claim a privilege against self-incrimination. United States v. White, 322 U.S. 694 , 64 S.Ct. 1248 , 88 L.Ed. 1542 (1944). A corporation does not have an equal right to privacy as that enjoyed by a natural person. United States v. Morton Salt Co., 338 U.S. 632 , 70 S.Ct. 357 , 94 L.Ed. 401 (1950). A corporation is not a “citizen” within the meaning of the Privileges and Immunities clause of the Fourteenth Amendment. Hauge v. C.I.D., 307 U.S. 496 , 59 S.Ct. 954 , 83 L.Ed. 1423 (1939). The “liberty” protected under the Due Process clause of the Fourteenth Amendment is the liberty of natural persons, not corporations. Northwestern Nat. Life Ins. Co. v. Riggs, 203 U.S. 243 , 27 S.Ct. 126 , 51 L.Ed. 168 (1906).
The United States Supreme Court in Bel-lota, and the majority in this case, have ignored a long line of eases where the distinction between artificial and natural persons was recognized and used as a starting point in determining what rights should be extended to corporate entities. By disregarding the artificial nature of corporations, we now have the anomalous situation where an artificial entity that is incapable of casting a ballot, can, by spending thousands of dollars, potentially dictate the outcome of a ballot referendum that may involve an issue that has no relevance to the existence of the corporation. Bellot-ti did not increase freedom of expression, but merely magnified the volume of expression allowed to artificial entities. The end result will most likely be that natural persons, who can vote and speak, will have difficulty in being heard over the blare financed by corporate money.
In the present case, the Court should have determined whether or not Anderson’s Paving, Inc. would be materially affected by the passage of the Road Bond Amendment. Only if the corporation is materially affected should the Court hold that freedom of expression in this instance is necessarily incidental to Anderson’s to achieve its purpose, and extend constitutional protection to allow such expression.
Therefore, I would remand for proceedings resulting in a finding of whether or not Anderson’s would be materially affected by the referendum issue.