Establishment Clause

“ Resolved, That it be an instruction to the committee, to whom were referred the proceedings of the Convention for the establishment of a national government, to receive a clause or clauses, requiring certain qualifications of landed property and citizenship in the United States, for the executive, the judiciary, and the members of both branches of the legislature of the United States; and for disqualifying all such persons as are indebted to, or have unsettled accounts with, the United States, from being members of either branch of the national legislature. ”

“ The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. ”

“ If the word ‘establish’ is there to be taken in the sense which gentlemen claim for it, that of adoption or designation, congress could have a choice only of systems of justice preëxisting. Will any gentleman contend, that we are obliged to take the Justinian code, the Napoleon code, the code of civil, or the code of common or canon law? Establishment means in the preamble, as in other cases, construction, formation, creation. Let me ask, in all cases of crime, which are merely malum prohibitum, if you do not resort to construction, to creating, when you make the offence? ”

“ If congress, in framing this clause, did not have corporations in mind, there is no reason for giving the clause a looser and broader construction as to artificial persons who were not contemplated than as to natural persons who were. ”

“ Bearing in mind that the franchises granted came from the state, the nature and extent of the rights included in those franchises, that the franchise to be a corporation was extended by the 1st section of the act, and that the franchise, the transfer of which was intended to be confirmed in the clause now before us, embraced the right granted by the state to use the streets with the authority of the city, and that the rights and privileges were obtained from the city, let us see if some meaning can be found consistent with the other parts of the act and recognized rules of construction. ”

“ From a careful review of the powers vested in the general government, they have the most positive conviction that the authority to grant charters of incorporation, within the jurisdiction of any state without the consent thereof is not recognized in that instrument, either expressly, or by a warrantable implication ”

“ Such a power also, that is the power to alter, modify, or repeal an act of incorporation, is frequently reserved to the state by a general law applicable to all acts of incorporation, or to certain classes of the same, as the case may be, in which case it is equally clear that the power may be exercised whenever it appears that the act of incorporation is one which falls within the reservation, and that the charter was granted subsequent to the passage of the general law, even though the charter contains no such condition nor any allusion to such a reservation. ”

“ It is, moreover, conclusively determined that where the constitution of a state reserves the power to repeal, alter, or amend a charter, such provision is applicable to the charter of a consolidated corporation where, as the result of the consolidation, a new corporation takes being, new stock is provided for, new franchises are conferred, and new officers appointed. ”

“ The District Court in passing on petitions filed by corporations under Chapter X must of course determine whether they are filed by those who have authority so to act. In absence of federal incorporation, that authority finds its source in local law. ”

“ The change from the drawing in question of the construction of a clause of the Constitution, or of a treaty, statute, or commission, to the claim of a right under the Constitution, treaty, statute, commission, or authority, emphasized the necessity that the right must be specially set up and denied. ”

“ The assembly being employed in devising means for raising revenue, their dissolution was deferred; but the repeal of the law imposing duties, and the royal displeasure at the clause laying a duty on British manufactures, were immediately communicated, with a recommendation to pass another act, omitting that clause. ”

“ The legislature, by thereby affirming and recognizing the passage of the ordinance of August 16, 1858, also recognized the power of the common council to pass that ordinance under clause 9 of § 4 of chapter 4, of the charter of 1851.' In the act of 1859 the legislature did not assume to fix independently the term for the use of the streets, but affirmed that which the common council had authorized the corporators to do, and gave authority to confer future rights by agreement with the corporations. ”

“ Conceding the rule applicable to all statutes, that what is fairly implied is as much granted as what is expressed, it remains that the charter of a corporation is the measure of its powers, and that the enumeration of these powers implies the exclusion of all others. ”

“ Grant that the power existed in the legislature to pass the act uniting the two institutions and it follows that the supplementary act which was passed to render the first act practically available is also a rightful exercise of legislative authority, as it is clear that substantially the same reservation is contained in the act providing for the union of the two institutions as that contained in the original charter by virtue of which the act was passed uniting the two institutions in one corporation. ”

“ When the question came up, the Council took the opinion of Jurists on it and reached a common sense result. [1] Under a general clause giving jurisdiction to the Court in all matters of interpretation, [2] it would seem that any Member of the League could require a question as to the composition of the Council on a particular occasion to be decided by the Court before the Council could meet. It is obvious that any such method of regulating procedure would give rise to impossibilities which should be avoided. ”

“ By operation of this Order, the ministry into which the state-owned enterprise is
consolidated shall be substituted for the state-owned enterprise as a party in each
contract to which the state-owned enterprise is a party. Upon consolidation, the
substituting ministry shall be entitled to exercise all of the rights and receive all of the
benefits of the enterprise. ”

“ From the fact, then, that a charter of incorporation has been granted, nothing can be inferred, which changes the character of the institution, or transfers to the government any new power over it. The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed, and the objects for which they are created. The right to change them is not founded on their being incorporated, but on their being the instruments of government, created for its purposes. ”

“ The charter or incorporating act of a municipal corporation is in nosense sense a contract between the state and the corporation, although, as we shall presently act of a municipal corporation is in no not, indeed, in favor of the corporation or rather the community which is incorporated, may arise under it. ”

“ A charter is certainly in form and substance a contract; it is a grant of powers, rights, and privileges; and it usually gives a capacity to take and to hold property. Where a charter creates a corporation, it emphatically confers this capacity; for it is an incident to a corporation, (unless prohibited,) to take and to hold property. A charter granted to private persons, for private purposes, is within the terms, and the reason of the prohibition. ”

“ Congress has revealed a similar understanding of the term 'residence' when enacting special venue statutes in situations in which it was intended that, at the election of the plaintiff, a corporation should become amenable to suit either in the State of incorporation or in States in which it is carrying on corporate activities. ”

“ Corporations subject to general laws. The creation of corporations, and the extension and amendment of charters whether heretofore or hereafter granted, shall be provided for by general law, and no charter shall be granted, amended, or extended by special act, nor shall authority in such matters be conferred upon any tribunal or officer, except to ascertain whether the applicants have, by complying with the requirements of the law, entitled themselves to the charter, amendment, or extension applied for and to issue or refuse the same accordingly. ”

“ Charters of private corporations are regarded as executed contracts between the government and the corporators, and the rule is well settled that the legislature cannot repeal, impair, or alter such a charter against the consent or without the default of the corporation judicially ascertained and declared. ”

“ Every such corporation and association shall, in case its constitution, by-laws, rules, regulations or oath of membership or any part thereof, be revised, changed or amended, within ten days after such revision or amendment file with the secretary of state a sworn copy of such revised, changed or amended constitution, by-law, rule, regulation or oath of membership. Every such corporation or association shall within thirty days after a change has been made in its officers file with the secretary of state a sworn statement showing such change. ”

“ A corporation may for the purposes of suit be said to be born where by law it is created and organized, and to reside where, by or under the authority of its charter, its principal office is. A corporation, therefore, created by and organized under the laws of a particular State, and having its principal office there, is, under the Constitution and laws, for the purpose of suing and being sued, a citizen of that State possessing all the rights and having all the powers its charter confers. ”

“ It thus appears that the charter of the company, by adopting the provisions of the act of 1809, became subject to a reserved power of the legislature to make further provisions and regulations for the management of the business of the corporation and for the government thereof, or wholly to repeal the act, or any part thereof, establishing the corporation. ”

“ That where an agent, without precedent authority, has exercised, in the name of a principal, a power which the principal had the capacity to bestow, the principal may ratify and affirm the unauthorized act, and thus retroactively give it validity when rights of third persons have not intervened, is so elementary as to need but statement. That the power of ratification as to matters within their authority may be exercised by Congress, state governments, or municipal corporations, is also elementary. ”

“ A charter, then, being a contract within the scope of the constitution, the next consideration, which has arisen upon this important subject, is, whether the principle applies to all charters, public as well as private. Corporations are divisible into two sorts, such as are strictly public, and such as are private. ”

“ One of its provisions, contained in § 573, is that the 'provisions of all charters and articles of incorporation, whether granted by special act of the general assembly or obtained under any general incorporation law, which are inconsistent with the provisions of this chapter concerning similar corporations, to the extent of such conflict, and all powers, privileges, or immunities of any such corporation which could not be obtained under the provisions of this chapter, shall stand repealed on September 28, 1897. ”

“ If, however, the assembly or society be a branch of a superior body, or parent organization, it cannot make a rule which conflicts with the constitution, by-laws, or rules of the parent organization, since the constitution, by-laws, etc., form the organic law of the organization, and cannot be suspended by the subordinate body. ”

“ That jurisdiction over a corporation cannot be acquired in a district in which it has no place of business and is not found, merely by serving process upon an executive officer temporarily therein, even if he is there on business of the company, has been settled. ”

“ Where the grantees of a franchise, as well as the grantors, are public bodies and the franchise is created solely for municipal objects, the grant is at all times within the control of the legislature, and consequently the charter is subject to amendment or repeal at the will of the granting power. ”

“ There is no authority for holding that a mere administrative officer of a municipal corporation, simply because of the absence of a statutory inhibition, has the power, without the consent of the corporation speaking through its municipal legislative body, to bind the corporation by a common-law submission. ”

“ Now, we freely subscribe to the rule that neither privileges, powers, nor authorities, can pass by an act of incorporation, unless they be given in unambiguous words, and that an act giving special privileges must be construed strictly. ”

“ In many states they are formed under general laws by a very simple proceeding,-by an instrument signed by the proposed members agreeing to thus unite themselves, stating their number, the object of their incorporation, the proposed capital, the number of shares, the period of duration, and the officers under whose direction their business is to be conducted. ”

“ The said corporation shall have power to establish a principal office at such place as they may see fit, and the same to change at pleasure.' As against the government, the word 'shall,' when used in statutes, is to be construed as 'may,' unless a contrary intention is manifest. ”