[June 23d.

on the Report of the Committee, that it is inex- | ment of the subject on that account. There was pedient to act upon the subject of the loan of also a document expected from the office of the State credit.

Secretary of State, containing a history of the proMr. BRADFORD, of Essex. As the chairman ceedings of the Commonwealth in relation to of the Committee who reported upon this subject special acts of incorporation, which I supposed and another gentleman who takes an interest in would throw much light upon the subject and be the question, are both absent, I would suggest useful to the Committee in considering this ques.. to the gentleman from Natick that it would be tion. That document is wanting. Besides this, well to substitute another subject for the consid- the Committee having the subject of banking uneration of the Committee.

der consideration, which covers the general ground The PRESIDENT. The Chair would remind of corporations, and therefore well to be discussed gentlemen that this is a question which is not in the same connection, have not yet reported. debatable, although suggestions may be offered, For these reasons, I had hoped that the matter if desired.

might be delayed. But as it cannot be, and as Mr. FARWELL, of Boston. I understand that the resolution proposes to incorporate into the this subject was called up after I left the Conven- Constitution of our State a new provision, it tion last evening. It being a question upon doubtless will be expected that some member of which I supposed there would be little or no the Committee from which that resolution emabebate, I did not think it material to be present, nated, will state some of the reasons which have but as the subject has taken a course which I did induced their action, and as chairman of that not anticipate, and which will probably excite Committee I suppose it becomes my duty, more debate, and as there are several gentlemen now particularly than that of any other gentleman, to absent who desire to participate in the discussion give those reasons, and I shall endeavor to do so when it shall take place, I hope that the subject as briefly as possible. will be passed over.

It will be perceived that the resolution is not Mr. WILSON. To accommodate the gentle- general or complete in its application to all corman I will withdraw my motion. It is necessary, porations. Now, it was the opinion of the Comhowever, that we should go on with some busi- mittee-in which opinion I fully concur—that

in the application of any principle which is manMr. WILSON moved that the Convention

ifestly right, it is the part of wisdom to make no resolve itself into Committee of the Whole, on exceptions. But the exceptions which are conthe resolve reported by a Select Committee on tained in this resolution were made for what we the subject of

deemed to be good and sufficient reasons. In the

first place, it will be seen that there is an excepGeneral Laws for Corporations.

tion in relation to corporations for banking purThe motion was agreed to.

poses. The reason for this was simply that the The Convention accordingly resolved itself into

subject had been referred by the Convention to COMMITTEE OF THE WHOLE,

another Committee, and consequently it did not Mr. Sumner, for Otis, in the Chair.

come within the range of our duties to report The resolve was read, as follows:

upon that question. What action we might have

taken upon the subject, had we been allowed to Resolved, That it is expedient to incorporate consider it, I do not know; but my own indiinto the Constitution a provision, that corpora- vidual opinion is, that there is no good reason tions may be formed under general laws, but why the principles of a general law should not shall not be created by special act, except for apply to the subject of banking as well as to banking or municipal purposes, or where the object of the incorporation shall not be attainable

other corporations. The matter however was not under general laws.

considered in Committee, and I do not propose to

touch upon it now. Mr. WHITNEY, of Conway. I had hoped, The second exception in relation to corporations for several reasons, that the Convention would for municipal purposes was fully discussed by our have taken up some other matter in the Orders of Committee, and it was made mainly for the reason the Day. In the first place, being somewhat un- that this class was considered as distinct froin well, I do not at this time feel capable, as chair- other corporations. They were regarded to be in man of the Committee who reported this resolve, the nature of governmental organizations, or assoof presenting this case for the consideration of this ciations for the formation of institutions for local body in the manner in which it should be pre- purposes, for the right of enactment by individuals sented. I shall not, however, ask a postpone- of a particular locality, of by-laws for their own





[June 23d.

government. Acts of incorporation of this class Committee, will be, whether for the future we are always granted upon the application of the are to continue to create incorporations by some inhabitants of such locality, and are never carried form of law? I think in answer to this there into effect except by their approval and declared will be but one response. I presume no gentlevote.

man of this Committee will say, that a great We therefore viewed them as constituting a commercial, a great manufacturing, or even a distinct and separate class of corporations. But great agricultural community ought ever to disfew acts of this kind are asked for. We have at pense with the numerous advantages growing out this time but twelve cities in the Commonwealth, of associated action in the form of corporations. therefore but little comparatively of the time of Every man will respond in the affirmative to this the legislature has been occupied in passing special proposition. It is unnecessary for me to allude, acts of this denomination. We concluded, there- particularly, to the numerous advantages which fore, that this exception might be made with pro- result from associated action under the forins of priety.

law which govern business corporations. A few, The last exception is where the object of the however, may be mentioned, as for instance, the incorporation is not attainable under general laws. manner in which the property of corporations is But, Sir, I must confess that I am not able to held—namely, as personal property, in the form give any reason at all satisfactory to myself, why of shares of stoek, instead of as real estate in this exception should be made, for I cannot con- whole or in part, which real estate is often indi. ceive of any act of incorporation likely to be asked visible in its nature, such as water-power, millfor, the objects of which cannot be attained under dams, &c. Besides this, corporations are not suba general law; and I think if this Committee ject to conflicting views and interests, but are were to strike out that exception it would improve more manageable in general than a private copartthe resolution, and prevent the insertion of a nership, being ruled by a majority of stock, they clause in the Constitution entirely needless and have an individuality in their management, not uncalled for. But it was deemed desirable by our attainable under a copartnership made up of many Committee, as twelve members had expressed individuals, lacking the organization imparted by their approbation of the general tenor of this reso- corporate laws. In case of the death of a partlution, that we should be unanimous in our action. ner, no interruption of the business is had by a We therefore made the Report as it now stands, division of the property, as would be the case and I cannot believe that if a provision of this under a partnership. The individual interest of character should be inserted in the Constitution, each stockholder is easily transferable without there is any danger that this exception will ever interfering at all with the general current of the become the rule. If this resolution should be business. The great advantages incident to coradopted by the Convention, and the people should porate powers will not, in this age of the world, sanction its application by their vote, it was con- be dispensed with. sidered by the Committee that no legislature Having become satisfied upon this point, the would ever attempt to depart from the general question then arises, whether these business adprinciple involved in it, or under the cover of this vantages should not be made accessible, so as to exception attempt to create by special act, incor- be open in their benefits alike to each citizen of porations where the objects could be attained the Commonwealth. They should belong to the under a general law. For myself, however, I whole people as a right, and not be dealt out to a think it would be much safer, and that we should few individuals as a privilege. There can, it improve the resolution by striking it out. Con- seems to me, be but one opinion upon this stitutional provisions of this character have been matter. adopted by several of the States, when like excep- Another reason why we should adopt general tion has been made, and judicial tribunals in those laws instead of special laws, is to be found in the States have ever held those enactments of the fact that the past history of the legislation of this legislature to be unconstitutional, which conflicted Commonwealth has demonstrated that much of in the least with the general spirit of the articles the time of almost every session of the general contained in their several Constitutions. These court is consumed in making special acts for purare the reasons, in brief, why the Committee made poses which may be provided for by general laws. these exceptions, and now a word in relation to These acts are generally prepared with but little the resolution itself.

care, and consequently in very many instances The first question that presented itself to us, seriously conflict with the general interests of and the most natural question that will present individual enterprise. In some cases the interestitself to the mind of every gentleman in this ed party himself prepares his petition, and even



(June 23d.

the bill, and through the lobby influence brings then he may not succeed in obtaining a charter. it up successfully for the action of the legislature. And what is the consequence. The enterprise These bills are of course drawn up with an espe- fails, and the party goes into another State where cial eye to individual interest, the matter is placed a general law exists, and commences work there. in the hands of the appropriate committee, and The Commonwealth therefore loses the advannot being a question of general interest to the tages and profits which would have accrued from Commonwealth, remains in their hands until near that business, had a general act of incorporation the close of the session when they are reported to been in existence. This must be apparent to the legislature. If that body should happen to every business man. So in case of a casualty, be liberal in regard to the policy of granting by flood or fire, parties in this way are often special acts of incorporation, they are passed reduced in circumstances, they desire to form a through in great haste, and with but little con- corporation and rebuild their manufactories, but sideration. The consequence is that many of yet are unable to do so simply because they are these special acts have inserted in them privileges, compelled to wait, at a great expense, for the which are of benefit to the few, but which act action of the legislature. disadvantageously to the general interest of the Other States have adopted this provision very Commonwealth. Under a general law, however, generally, and they have not, that I am aware of, these incorporations will be created with great found any evil resulting from it; and not one, I care and deliberation; they will unite in their pre-believe, that has adopted it, has gone back to the paration all the wisdom of your legislature, and be old system. The question was started in the so framed as to protect all the interests of the Committee, whether we should report details or Commonwealth, more equally, more guardedly, constitutional restrictions in reference to general and more substantially than can possibly be done laws. It has doubtless been observed by gentleunder the present system of special laws. There- men who have examined the Constitutions of fore general laws are safer, more uniform, and other States, that many of them have provided when any judicial decision is made in reference to for a personal liability, that is, that no act of inthem, it will apply not to one particular corpora- corporation shall be granted where the parties are tion, but to all; whereas at the present time there not held personally liable to an amount equal to is hardly an act of incorporation that does not, in the nominal value of their stock. But it was some of its provisions, require a special interpre- deemed by the Committee who reported this restation, by your judicial tribunals, to be fully olution to be unnecessary to make any such prounderstood. If the history of the proceedings of vision here, as this whole matter as to what the the legislature of this State were examined in particular liabilities and privileges under all genreference to this subject, I have no doubt it eral laws shall be, may safely be left to the discretion would be found that one-half of the business of the legislature, for I think there is no danger done, during some of its sessions, was confined to in the Commonwealth of Massachusetts, that the granting of special acts pertaining to corpora- general laws will not be so framed as sufficiently tions, while in other sessions but very few acts of to protect private rights while they will tend to incorporation could be obtained, the success of promote the interests of all parties. It was the petitioners depending entirely upon the charac- therefore deemed advisable, after a full review of ter of the legislature. The adoption of this resolve the subject in the Committee, to report merely the will prevent the recurrence of anything of this resolution incorporating the provision into the kind in future, and will, I think, be a great Constitution, that corporations may be formed saving of time to the legislature, and of expense under general laws, leaving detail to be acted to the Commonwealth, besides allowing the upon by the legislature. people of the Commonwealth to self-associate at

Another matter was somewhat considered by any time. These facts need but to be mentioned the Committee, to which it is hardly necessary for to be understood and appreciated by every gen- me to allude. The question arose, whether, in tleman. For instance, an enterprising man finds railroad corporations and the like, we could suffia new article in the markets of the city of Boston, ciently accommodate self-associating parties, and, which he is satisfied he could manufacture at a

at the same time, guard the rights of individual great pecuniary profit; under a general law he can

property, or the right of eminent domain. But at once form an association, and commence work; there can be no reasonable doubt on this point; whereas, by our present system he would be

your general law can as well guard and protect incompelled to wait until the next legislature con- dividual property as any special law can do. Any vened before a company can obtain a charter and

tribunal can be fixed upon to adjudicate between commence operations as a corporate body—even corporations and individuals, that the legislature


[blocks in formation]


These excep

may determine-county commissioners, court of | under these exceptions would receive any injury common pleas, or a board of railroad commission- in any way, yet it would be very safe and proper ers. Gentlemen can easily perceive that there will to leave them to be provided for by special legisbe no trouble of this kind. Commissioners may be lation. I hope the amendment of the gentleman appointed, if necessary, who shall have full juris- from Berkley, (Mr. French,) will not prevail. diction over the whole matter, and who can Mr. STETSON, of Braintree. I move to decide questions of this nature in accordance amend the amendment by striking out only the with provisions somewhat analogous to your words “ banking or” and leave the exception to highway laws. All these matters can be as well, apply to corporations for municipal purposes, &c., nay, better acted upon unier general laws, as as now expressed in the resolve. My reason for they can be by a series of special acts. These are offering this amendment is, that an order in the reasons, in brief, which induced the Commit- reference to this subject was referred to the Comtee to recommend the adoption of this resolution. mittee having under consideration the subject of

Mr. FRENCH, of Berkley. From the remarks banking charters, and the manner of their incorof the gentleman who has just taken his seat, it poration, and that a Report has come in, or is to appears to me that this resolve ought to be amend- come in, from that Committee, which will cover ed by striking out after the word “act” the words all this ground. Our action here may affect their “except for banking and municipal purposes, or Report, and therefore, as there is no particular where the object of the incorporation shall not be necessity of including it in these resolves or acting attainable under general laws."

upon it now, I trust the Convention will strike tions seem to be unnecessary, if we intend to it out. have general laws for incorporations. By strik- Mr. NAYSON, of Amesbury. I think it is ing out these words we have all corporations on somewhat premature act definitely upon this the same footing, and I therefore hope the amend resolve, and for the reason given by the gentlement will be adopted.

man from Braintree, (Mr. Stetson,) that one of Mr. BRADFORD, of Essex. It seems to me the Committees of this body has now under conthat there is a manifest propriety in the exceptions sideration the subject matter of this very resolve, embraced in the Report of the Committeethat so far as banking incorporations are concerned. is, the cases of incorporation for banking and It seems to me improper and unwise to act defimunicipal purposes, and when the object of the nitely upon this question, until the Committee to incorporation shall not be attainable under gen- which the subject has been committed, shall have eral laws. In the first place we frequently create reported upon the subject. With the view, municipal corporations out of one or more special therefore, of awaiting the action of that Commitexisting corporations. We have sometimes, or tee, I move that this resolve do lie upon the table. may have, some complicated interests in the way Mr. BRIGGS, of Pittsfield. The Committee of property or revenue, which might require has no table, and the motion is not regular. peculiar special action. There may be some inter

er- The CHAIRMAN. The motion is not in est or circumstances which are peculiar in their order. condition, and which might not be provided for Mr. NAYSON. Then, as that motion is not by general laws, and which could not be properly in order, I move that the Committee rise, report met, in the way of doing justice to existing cor- progress, and ask leave to sit again. porations, without special action of the legislature Mr. WHITNEY, of Conway. It has been in particular cases. It seems to me that munici- suggested to me, since I came in here, that the pal corporations should be exempted from the Committee having the subject of banking under operation of general laws. Questions concern- consideration, have agreed upon a report, and ing them will come up rarely, and will not occupy that they have agreed upon the principle of this much of the time of the legislature, which is the resolve; and I see no reason why we should not chief evil of the present system—of giving act upon the matter now. As a matter of perspecial action to each case. It seems to me that sonal convenience, I should like to have the matsuch cases had better be left to the operation of ter go over, but as we have many subjects lying special legislation.

over, and are not getting along very fast, I think There might also some cases arise under the last we may as well act upon it now. exception, which could not be well provided for The question was taken upon the motion of under general laws, such as cases relating to col- Mr. Wayson, and it was decided in the negative. leges and eleemosynary institutions, and they So the Committee refused to rise. should be guarded and taken care of, and though Mr. EARLE, of Worcester, I rise simply to I do not know that any cases which would come make an inquiry of the chairman of the Commit



[June 23d.


If they


tee, (Wr. Whitney,) in reference to the Report of of no portion of that business which can be better the Committee to which he has referred. I under- taken away from them, than that of special corstood him to say that the Committee to whom porations, including banking, as well as manuwas referred the subject of banking, had agreed facturing, and others. to a report in conformity with this resolve. I ask Mr. COLE, of Cheshire. The amendment him whether we are to understand from that, that proposed by the gentleman from Braintree, (Mr. banking corporations are to be excepted from Stetson,) I believe, is now the question before the general laws of incorporations, for by this resolve Committee, namely, to strike out the words, they are :

• banking or." I move to amend that amendMr. WHITNEY, of Conway. In reply to ment by striking out all after the word “or” so the gentleman I would say, that I stated, in the that the resolve shall read : few remarks I submitted in relation to this resolve, that this exception of banking corporations, was

That it is expedient to incorporate into the made for the reason that the subject had been

Constitution a provision, that corporations may be

formed under general laws, but shall not be previously committed to another Committee. I

created by special act except for municipal purnow understand that that Committee have agreed

poses. upon a Report, covering the principle of a general law as applicable to banking, and therefore if we I make this motion under the impression that strike out the words “ banking or” according to perhaps there are many who are opposed to genthe pending motion, this resolution will accord in eral acts of incorporation, and perhaps there are principle with the resolution to be reported. many in the community who believe that the Therefore the question of banking under general objects of forming corporations cannot be obtained laws, may as well, for aught I see, arise under under general laws. It seems to me that the this amendment now, as elsewhere.

Constitution ought to settle principles clearly, and have agreed in fact upon that Report, this amend- here is a case where there is a chance for a variety ment, if adopted, will include banking corpora- of opinions, and a case where men may differ in tions under general laws, and therein conform to their belief. that Report. That Committee are undoubtedly Mr. CHAPIN, of Springfield. Is it in order prepared to give their reasons why these words to move that the Committee rise, report progress should be stricken out.

and ask leave to sit again? Mr. EARLE, of Worcester. The answer is The CHAIRMAN. It is. such as I supposed it would be, and it is satisfac- Mr. CHAPIN. I make that motion, and my tory. Still my object in making the inquiry was, object in moving it is, that this resolution and the that I supposed that the information given by the Report of the Committee on Banking, may be gentleman when he was up before, was calculated acted upon together, that Committee having to mislead the Committee. He said it was in agreed upon their Report. I am satisfied that if accordance with this Report, and this Report gentlemen see both at the same time, the subject excepted banking institutions from the number of will be better understood than it now is. those which were to be brought under general The question was put and the motion was agreed laws. I concur fully with him in the opinion to-ayes, 84; noes, 65. that we may as well consider the banking ques- The Committee accordingly rose. tion under the amendment which is now pending as under any other circumstances, or in any other shape in which it may be presented. The present motion to amend, will bring the whole subject

The chairman of the Committee, (Mr. Sumner, before the Committee, and open the entire matter for Otis,) reported that the Committee of the Whole to discussion. I hope the subject will be con

had had under consideration the Report and reand also that the amendment will solve of the Committee to whom was referred an prevail.

order to consider the expediency of making conI do not see any reason why banking institu- stitutional provision, requiring that corporations tions should not be brought under the operation shall not be created by special act, except for of general laws, and thereby a large amount of municipal purposes, &c., and had instructed him annual legislation saved to the State. If we limit, to report progress and ask leave to sit again. as we propose to do, the length of the sessions of Leave was granted.


sidered now,

the legislature to ninety or one hundred days, we Mr. WILSON, of Natick. I move that the

must get rid of the large amount of business Convention resolve itself into Committee of the which now comes before that body, and I know | Whole upon the Majority Report on the

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