Hinckley v. Bluehill Granite Co. , 16 Me. 370 ( 1839 )

The opinion of the Court was drawn up by

Shepley J.

The defendants were incorporated by the act of 29th of February, 1836, for “ working, manufacturing, vending, dealing in, and exporting granite,” and with the like powers, duties, and liabilities of other similar corporations. The intention therefore must have been to class this corporate body among manufacturing corporations, and the service of process upon it must be such as is provided for on them.

The statute of Massachusetts, c.lb, § 8, provided, that “ when any suit shall be commenced against any town or other body corporate a copy of the writ” “ shall be left with the clerk of such town or with one or more principal inhabitants thereof, or with the clerk or some principal member of the body corporate.” That act upon the revision of the statutes in this State was repealed, c. 180, 2 Maine Laws, 781. The revised statute, c. 59, <§> 6, provides for a service upon towns, parishes, and proprietors of common or undivided lands or other estate, but the words, “ or other bodies corporate,” were omitted. By the revised statutes, c. 60, § 1, provision is made for the attachment of the shares or interest of any person “ in any turnpike, bridge, canal, or other company” and service is to be made by leaving an attested copy of the writ “ with the clerk, treasurer, or cashier.” And in the second section it is provided, that the franchise of “ any turnpike, bridge, canal, or other company incorporated by law, with power to receive toll,” “ as well as all other corporate property, either real or personal, shall be liable to attachment on mesne process; and when such attachment shall be made, or other service of mesne process shall be made on any of the corporations aforesaid, the officer serving the same shall leave an attested copy of said process and his return thereon with the clerk, treasurer, or some one .of the directors of said corporation.”

According to the grammatical and legal rules of construction, the word aforesaid would be regarded as referring to the class of corporations named in the section in which the word is found, and not to all those named in the first as well as second sections; and such should be the construction adopted by the Court, unless forced by the examination of other acts of legislation in pari materia to the conclusion, that a different construction was intended by the legislature, and must therefore bo admitted.

Provision is made in c. 59, §1,2, for a service of writs upon persons or defendants iu the suit, and it would be a somewhat forced construction, that would include bodies corporate under those words. And yet the legislature must have intended to provide in one of these modes for a service upon manufacturing corporations, or to make no provision for a service upon these and other classes of corporations.

Where persons have been prohibited from doing certain acts, the prohibition has been decided to include bodies corporate. The People v. Utica Ins. Company, 15 Johns. 358. Corporate bodies are said, by Lord Colee, to be included in the word inhabitants, in his exposition of the statute 22 Hen. 8, 2 Inst. 703. The like construction prevailed in Bex v. Gardner, Cowp. 83, where the words inhabitants and occupiers were held to include bodies corporate.

The enactments iu c. 60, § 31, contemplate, that actions may be commenced against manufacturing corporations, and provide that an officer having a writ or execution may demand of the president, treasurer, or clerk of such corporation to “ show the same officer sufficient personal estate to satisfy any judgment that may be rendered upon such writ, or to satisfy and pay the creditor the sums due upon such execution.” The agent or other officer of such a corporation, having charge of its property, is required on request of an officer having a writ or execution against the same to deliver the names of the directors and clerk, c. 385, § 4.

The additional act respecting foreign attachments subjects bodies corporate, excepting counties, towns, and parishes, to be called upon by that process to account for goods of a debtor in their possession ; and provides for service being made upon them as is or may be provided by law for the service of writs and processes in civil actions on such corporations.” c. 442. The act of 29th of March 1837, c. 289, requires all corporations to keep the office of their clerk within the State, and that the clerk shall file a certificate of his being such in the office of the register of deeds in the county, where the corporation is established or where it operates. These enactments clearly indicate the sense of the legislature, that a mode of service had been provided by statute; and intimate that the mode of service was that provided in the first or second sections of c. 59. To give effect to the sense of the legislature thus expressed, that some mode of service had been provided, it may be necessary to admit one of the constructions before alluded to ; and the former would seem to be more clearly indicated than the latter. It is believed, that a practical construction has prevailed since the revision of the statutes, that a service upon the clerk was good. And it was decided in Rogers v. Goodwin, 2 Mass. R. 475, that a practical construction, which had prevailed for a long number of years, “ although if it were res integra difficult to maintain,” was not to be shaken. Such a mode of service may also be regarded as legal by implication arising out of the provisions of the later statutes, which presuppose its existence. The service must be adjudged to be good.