Beach v. Leahy , 11 Kan. 23 ( 1873 )

The opinion of the court was delivered by

Brewer,'J.:

The only question presented by this case is as to the constitutionality and validity of the act of the legislature ’ of this state entitled “An act authorizing School District No. 2, Neosho county, Kansas, to issue bonds to build a school-house,” approved February 22, 1871. (Laws of 1871, page 74.) It is claimed that such act conflicts with two sections of the constitution, viz., §17 of art. 2, and §1 of art. 12. The former provides that “In all cases where a general law can be made applicable no special law shall be enacted;” and the latter forbids the legislature to pass “any special act conferring corporate powers.”

The attention of this court was challenged at an early day by § 17 above quoted,, and its scope and effect determined. It was held that such section was not to be literally and strictly construed, and that the mere fact that certain results could be accomplished by a general law did not necessarily avoid a special law passed to effect them. It was said that it left “a discretion to the legislature,” that “the legislature must determine whether their purpose can or cannot be expediently accomplished by a general law.” State v. Hitchcoak, 1 Kas., 178. Under this construction, and we have no disposition to change it, it is impossible to hold the act to be in conflict with the section. It may be conceded that this is a special law — that it authorizes the issue of bonds in a manner and upon conditions different from those prescribed by the general statute therefor. It is evident also' that the result could be accomplished, by a general law, or, in the words of the constitution, that a general law could be made applicable — for a general law is on the. statute book under which great numbers of' our school districts have issued bonds. Why this distinction was made we do not know, and there is nothing in the record to enlighten us thereon. We may. imagine many reasons, but it is useless to speculate. It is enough, in the absence of any showing as to the facts, that we can see that there may have been good and sufficient reasons. The poverty of the district, the want of school accommodations, the hostility of large numbers of the inhabitants to common-school education, may all have furnished reasons more or less strong. On the other hand, we see nothing in the act — and we have nothing else to examine — to indicate any abuse of the legislative discretion. Ample protection was secured by the .law. An election was required before any bonds could be issued; sufficient notice >of the time and place of election provided for, and a majority vote was necessary. The bonds, if voted, were to be used exclusively for the purpose of erecting suitable school buildings. A limit was fixed to the amount of bonds, the .rate per cent., the time of maturity, and the price' at which they might be negotiated; and this limit, for aught that appears, was in all instances reasonable. We have no hesitation therefore in holding that this act does not conflict with said section seventeen.

Does it conflict with §1 of art. 12? The question here raised is one of more difficulty, and one in the investigation ’ —bich there is little in the briefs of counsel to assist us. of ch. 92 of the Gen. Stat. provides that “every 'strict organized in pursuance of this act shall be a body corporate, and shall possess the usual powers of a. corporation for public purposes.” The act under discussion is a special act conferring powers upon, this body corporate which it did not possess before. It. seems. therefore to conflict with the very letter of the section. A critical examination however leads us to the conclusion that this conflict is seeming and not real, or, perhaps more correctly, leaves our minds so doubtful of the existence of any conflict that according to well-settled rules of construction and decision we must pronounce the law not unconstitutional. State ex rel. Crawford v. Robinson, 1 Kas., 18; Atchison v. Bartholow, 4 Kas., 124; Leavenworth County v. Miller, 7 Kas., 498. Art. 12, in which this section is found, is entitled “corporations,” and wholly devoted to provisions concerning them. As to all organizations covered by its terms its provisions are absolute, and this section binding. No corporate powers can be given to them by special- act. The question is, whether school districts are corporations within the meaning of the term as used in this article. Cities, towns, and villages, municipal corporations proper, are included. This has been already decided in this court: City of Atchison v. Bartholow, 4 Kas., 124; City of Wyandotte v. Wood, 5 Kas., 603. See also the case of The State, ex rel., v. The City of Cincinnati, 20 Ohio St., 18, in which the supreme court of Ohio placed a similar construction on a like provision of their constitution. Indeed, § 5 of this article indicates clearly such a construction. It reads, “ Provision shall be made by general law for the organization of cities, towns, and villages.” Now this section seems intended to limit the reach of this article in the direction of political organizations of the state, as § 6 does in the direction of the individual. That section says “The term corporation as used in this article shall include all associations and joint-stock companies having powers and privileges not possessed by individuals and partnerships.” This is evidently not reaching towards nor aiming at political organizations, public corporations, but private associations, individual organizations. It seeks to prevent the granting of the peculiar privileges and powers of corporations to any gathering of individuals, whether called corporation, association, or stock company. It calls everything above a partnership a corporation, and forbids any special act conferring powers. It places the • lower limit, not the higher. On the other hand, in order that there might be no question whether this article was intended for other than private corporations, section five names certain public corporations to which its provisions extend. It was probably well that these were named, to avoid question, for all the sections other than the fifth have reference, principally at least, to private corporations. Yet, as these are corporations proper, there would be weighty reasons for holding them included, even though not in terms named. But with reference to counties, townships, and school districts, the case is different. True, they are called in the statute bodies corporate: Gen. Stat., p. 253, §1; p. 1082, §1; p. 920, §24. Yet they are denominated in the books, and known to the law, as quasi corporations rather than as corporations proper. They possess some corporate functions and attributes, but they are primarily political subdivisions, agencies in. the administration of civil government, and their corporate functions are granted to enable them more readily to perform their public duties. The legislature have created the regents of the agricultural college, and the regents of the state university, bodies corporate, and given them certain corporate powers; (Gen. Stat., p. 75, §3; p. 1100, §6;) yet are they thereby inhibited from special legislation concerning them ? Giving corporate capacity to certain agencies in the administration of civil government is not the creation of such an organization as was sought to be protected by article 12 of the constitution. This distinction between quasi corporations and corporations proper, is no new thing nor of recent recognition. In Harris v. School District, 8 Foster, (28 N. H.,) 61, Bell, J., says: “School districts are quasi corporations of the most limited powers known to the laws. They have no powers derived from usage. They have the powers expressly granted to them, and such implied powers as are necessary to enable them to perform their duties, and no more.” In the case of School District v. Wood, 13 Mass., 192, Ch. J. Parker remárks concerning school districts: “that they are not bodies politic and corporate with the general power of corporations, must be admitted; and the reasoning advanced to show their defect of power, is conclusive.” In Riddle v. The Proprietors, &c., 7 Mass., 169, Ch. J. Parsons says: “We distinguish between proper aggregate corporations and the inhabitants of any district who are by statute invested with particular powers without their consent. These are in the books sometimes called quasi corporations. Of this description are counties and hundreds in England, and counties, towns, etc., in this state.” In the case of. Comm’rs of Hamilton County v. Mighels, 7 Ohio St., 109, in which an attempt was made to hold the county responsible for damages for injury resulting to a private party by the negligence of county commissioners in the discharge of their official functions, the question was examined at great length by Brinkerhoff, J., and the distinction between municipal corporations proper, and quasi corporations, clearly presented. He thus sums it up: “A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people. A county organization is created almost exclusively with a view to the policy of .the state at large for' purposes of political organization and civil administration in matters of finance, of education, of provision for" the. poor, of military organization, of the means of travel and transport, and especially for the general administration of justice.” Dillon, in his late and elaborate treatise on Municipal Corporations, after noticing the distinction draws attention to one fact which will help to make it clearer: “The primary and fundamental idea,” he says, “of a municipal corporation is an agency to regulate and administer the internal concerns of a locality in matters peculiar to the place incorporated, and not common to the state or people at large. But it is the constant practice of the states to make use of the incorporated instrumentality, or of its officers, to exercise powers, perform duties, and execute functions not strictly or properly local or municipal' in. their' nature, but which are in fact state powers exercised by local officers within defined territorial limits. In theory, the two classes of .powers are distinct; but the line which separates the one from the other is often very difficult to trace. The point ■may be illustrated from the English law: If the king incorporate as town, its officers will have no implied power as conservators or justices of the peace; express words are necessary to confer this power, and when they act in the latter capacity, it is not because they are corporate officers, but because of powers expressly annexed to their corporate offices; and the two capacities remain distinct, although united in the same person.” See also sustaining these views, Russell v. Men of Devon, 2 Dumford & East, 667; Ward v. County of Hartford, 12 Conn., 404; Comm’rs of Gallia County v. Halcomb, 7 Ohio St., 232; Wilson v. School District, 32 N. H., 126; Eastman v. Meredith, 36 N. H., 284; Hedges v. County of Madison, 1 Gilman, 567; Mower v. Inhabitants of Leicester, 9 Mass., 247; Freeholders of Sussex v. Strader, 3 Harrison, (N. J.,) 108; Morey v. Town of Newfane, 8 Barb., 645; Soper v. Henry County, 26 Iowa, 264. The mere fact that these organizations are declared in the statute to be bodies corporate, has little weight. "We look behind the name to the thing named. Its character, its relations, and its functions determine its position, and not the mere title under which it passes. In the last five cases cited the organizations were declared in the statute creating them to be bodies corporate, yet this made no difference in the rule. The conclusion to which these investigations have led us is, that among public corporations only corporations proper are included within the scope of article 12 of the state constitution, and that a school district is only a quasi corporation, and not covered by its provisions. The act of February 22d 1871 therefore, not conflicting with either section of the constitution, must be held constitutional. The judgment of the district court will be .affirmed.

All the Justices concurring.