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University of California • Berkeley 
 
 Jack Fleming Prison Collection 
 
Document No. 22. 
 
 IN ASSEMBLY.] [SESSION 1855. 
 
 REPORT 
 
 OF THE 
 
 SPECIAL COMMITTEE 
 
 ON 
 
 STATE PRISON. 
 
 SUBMITTED MARCH 29, 1855. 
 
 [B. B. REDDING, STATE PRINTER 
 
 
EEPOET 
 
 Mr. Speaker : 
 
 The special Committee on State Prison, in obedience to the instructions of 
 the Assembly requiring them, in conjunction with a special Committee appointed 
 by the Senate, to visit the State Prison and examine into the condition and 
 management of that institution, have performed that duty, and respectfully ask 
 leave to make the following report : 
 
 In consequence of the various rumors which had obtained circulation in con- 
 nection with the condition and management of the State Prison, your Committee 
 deemed it their duty, after a personal inspection of the Prison and Prison 
 grouuds, to call before them witnesses and make a thorough investigation as to 
 the correctness of these rumors, and also ascertain what was the cause of the 
 numerous escapes of convicts from the Prison. We have also collected a great 
 deal of testimony as to the profit or loss of the present lessee of the State 
 Prison by the Prison labor, and as to the possibility of making that institution 
 support itself or become a source of revenue to those who are entitled to the 
 labor of the prisoners. From this mass of testimony, your Committee are 
 forced to the conclusion that the system at present practiced by the lessee is 
 seriously objectionable, and wholly fails to accomplish the great object which 
 should be aimed at by the establishment of a State Prison, namely, the cer- 
 tainty of punishment, according to our criminal code, and the moral reformation 
 of the convict. 
 
 In consequence of the peculiar management of the convicts, and the police 
 regulations of the Prison, it was difficult to obtain perfectly satisfactory evidence 
 of the number of convicts now confined in the State Prison. We place the 
 number, however, at three hundred and thirteen. The Inspectors estimate the 
 number, at the date of their report of January 30th, at two hundred and 
 seventy-five, while the lessee, J. M. Estell, in his report to the Legislature, 
 dated January 28, states the number as over three hundred. From this evi- 
 dence, together with such information as we could gather at the Prison grounds, 
 we set down the number as above stated. Since the visit of your Committee to 
 
the Prison, we are informed that about fifty new convicts have been received, 
 making the number, at this time, three hundred and sixty-three. Near one 
 half of these prisoners are worked at Marin Island, in the Bay of San Pablo, 
 about two and a half miles from the Prison. The others are engaged at the Prison, 
 and in running vessels to San Francisco, transporting stone and brick, and in 
 getting wood from the hills with which to burn brick kilns. The convicts are 
 required to labor from sunrise until sunset, except the time necessarily engaged 
 in eating their meals. 
 
 Although there was some complaint among the convicts as to the kind and 
 quality of food and clothing, yet your Committee believe that they have no just 
 ground for complaint in this particular. The health of the convicts seemed to 
 be remarkably good. In accordance with the provisions of an Act passed May 
 15th, 1853, a Prison has been erected, with forty-eight cells on the second 
 story, which, by the present arrangement of the lessee, of confining four pris- 
 oners in a cell, will safely confine one hundred and ninety-two. The lower 
 story is divided into an office, guard room, and a long room in which prisoners 
 are confined. The Prison is a very substantial building, and altogether safe for 
 the confinement of prisoners at night. Those engaged at work on Marin Island 
 are confined at night on board of an old brig, which is firmly secured to the 
 shore. Although not as securely confined at night as those at the Prison, yet 
 their insular position banishes the idea of escape from their minds, unless they can 
 get outside aid to procure boats with which to leave the island. Although a par- 
 tially successful revolt occurred in December last, by which twenty-two prisoners 
 secured a boat and escaped, yet we believe that with ordinary care the convicts can 
 be more safely confined on this island than at the State Prison. 
 
 It would be exceedingly dangerous to keep all the convicts at the State Prison 
 at the present time. There is prison room for but little more than half of them, and 
 it is feared that so large a body of convicts thrown together, without sufficient 
 means of confinement, would be the signal for a revolt, which, unless the guards be 
 greatly increased, would, in all probability, be successful. 
 
 The lessee has under his employ about thirty men, who act as officers and guard. 
 This number is not, in the estimation of your Committee, sufficient to suppress a 
 revolt with certainty, and this number, when divided between the Prison and the 
 island, does not present that formidable appearance to the convict which would dis- 
 courage them from any attempt at an outbreak. It is the custom of the lessee to 
 send six, eight or ten prisoners to the woods, to procure wood, with but a single 
 guard. Escapes frequently occur while out in these parties. Prisoners have been 
 sent out from the Prison to work on a ranch with and without guard. But the 
 most of the escapes are occasioned by the adoption of a system denominated the 
 " trustie svstem." By this system, a prisoner, whose term of service is about ex- 
 piring, or who has behaved well, or has been recommended to the lessee as a gen- 
 tleman and a man of good standing and family, is permitted to do light work, to be 
 kept separate from the mass of prisoners, to go on errands for miles in the country, 
 on foot or on horseback, alone ; to go to San Francisco ; to sleep without the guard 
 at the cook house, off the Prison grounds, and other liberalities, which are frequently 
 taken advantage of to escape. It is believed that most who are now at large have 
 escaped by this " trustie system." Although we are not prepared to entirely 
 condemn the "trustie system," as such, yet it requires the exercise of the best 
 judgment to know who to trust. It is sometimes advantageous to have some among 
 the prisoners who will aid in giving information concerning rebellions and efforts at 
 escapes, and to assist in suppressing revolts. The use of this system has been and 
 may be serviceable, but it should be exercised with caution, and not to that extent 
 that has been practised in our State Prison. 
 
5 
 
 There are few men who have been sentenced to the State Prison — no matter for 
 what oiFense, no matter what may have been their former character — who, when 
 an opportunity is offered- them to escape by stepping on board of a ship bound from 
 our shores, would not take advantage of it, and thus regain their liberty. From 
 the numerous escapes that have been effected under cover of this system in this 
 State, we cannot but recommend that it be discontinued, as far as they are allowed 
 to leave the Prison grounds, and that those selected within the Prison grounds 
 should be selected with the greatest care. 
 
 The convicts at the Prison are engaged in making brick, on grounds adjoining 
 the Prison grounds, which are well adapted for the purpose, and under the control 
 of General Estell. Those at Marin Island are engaged at quarrying stone from an 
 excellent quarry, which we understand is owned by General Estell. 
 
 The Committee having ascertained the present market value of brick and stone 
 in the city of San Francisco, and the quality that can be furnished by convict 
 labor, are well satisfied that, with ordinary energy and judgment, the institution 
 can be made not only a self-supporting institution, but even profitable. Yet the 
 Committee are assured by the lessee that he has lost, by keeping the State pris- 
 oners, under his present contract, $127,000. These losses, he informs us, occurred 
 in consequence of bad management in the Prison matters, and that only in the last 
 six months ha§ he been able to make any profit on the Prison labor. He has now 
 favorable contracts for furnishing bricks and stone, in the city of San Francisco, 
 and that he has realized $45,000 profit in the last six months. 
 
 From evidence, your Committee believe that, with ordinary care, a profit of one 
 dollar per day to the convict may be realized, over and above all necessary expenses, 
 such as food, clothing, guards, and working tools. Estimating the number of 
 working convicts at three hundred, we have, by this calculation, $1,800 per week, 
 or $97,200 clear profit per year. This calculation is made upon the supposition 
 that favorable contracts can be made for the delivery of bricks and stone in the 
 city of San Francisco, or at a place no further from the Prison. 
 
 The general management of the Prison, in the opinion of your Committee, is not 
 such as it should be in order to secure the safety of the convicts. Many regula- 
 tions might be made, even under the present contract, which, we think, would 
 insure more certainly the security of the convicts. The rules and regulations of 
 the guard are not sufficiently systematic, nor are they sufficiently stringent upon 
 the guard and officers. Liquor has been used to excess among the guard and 
 officers. Prisoners themselves have been allowed liquor by the guard, in some 
 instances. The convicts are not required to dress in uniform, but to retain the 
 clothes worn by them when brought to the Prison ; so it is difficult to distinguish a 
 convict from one of the guard. Their heads are not required to be shaved regu- 
 larly, nor are they required to change their clothes as often as cleanliness would 
 require. We believe that if a system of uniformity of dress (which, by its peculi- 
 arity, would attract attention,) would, if adopted, tend to prevent escapes ; and if 
 the heads were required to be shaved once a week, the escaped convicts would be 
 recognized and their arrest would be facilitated. It is proper to remark, however, 
 that, so far as these rules affect the police regulations of the Prison, their establish- 
 ment was the duty of the Inspectors of the State Prison, and the lessee would have 
 been compelled to comply with them. In consideration of these numerous defects 
 in the government and discipline of the Prison, by which so many escapes were 
 effected, and also in consequence of want of sufficient room at the Prison and 
 Prison grounds, by which the convicts could be made secure, we made it a part of 
 our duty to investigate the remedy the State might have to correct themselves, 
 retaining the contract with General Estell, the present lessee, or by dissolving the 
 present connection between the lessee and the State and making such radical im- 
 
provements, both in discipline and buildings, as will protect our citizens and insure 
 the security of the convicts. 
 
 The law of 1851 made General J. M. Estell and M. G. Vallejo the lessees of the 
 State Prison for ten years. In 1852, the Legislature, by a special act, released 
 M. G. Vallejo and made J. M. Estell the sole lessee under the act of 1851, upon 
 his filing his bond in the office of the Secretary of State, to be approved by the 
 Governor, in the sum of $100,000 ; which conditions the said Estell has complied 
 with A copy of said bond is herewith reported, marked " Exhibit A." The 
 said law of 1851 is a contract entered into between the State and the lessee, and 
 the law regulating the construction of contracts generally must apply to this. By 
 this law the lessee has, for ten years, the sole charge of the convicts sentenced to 
 the State Prison. He is required to " feed and clothe the prisoners and pay all 
 other necessary expenses, as that for guards and tools to work with ; to prepare 
 suitable temporary buildings upon the grounds herewith leased, or shall have suit- 
 able and secure Prison ships or vessels, properly arranged for the health and 
 security of the convicts, until the State shall build the State Prison." It then, 
 in a provision to the seventh section, states that " this Act shall not be so construed 
 as to confine the labor of the prisoners within the walls of said Prison, or to any 
 particular place or labor. 
 
 We believe that the Legislature is bound to the contract as it is made ; that the 
 Legislature has no right to alter or change that contract in any material point, so as 
 to require any additional expense in keeping prisoners, or by which their labor 
 would be made more unprofitable to the Lessee without the consent of said Lessee. 
 That if the Lessee had violated the contract so as to work a forfeiture of the con- 
 tract, that we could not by a Legislative Act annul said contract ; but that our rem- 
 edy would be entirely judicial. In order to satisfy ourselves more perfectly as to 
 the correctness of these positions, we addressed a series of interrogatories to the 
 Attorney General, and received an answer from him in which he sustains the po- 
 sition above laid down. The communication of the Attorney General is reported 
 as exhibit " B," and made a part of this report. 
 
 From the construction placed upon the statutes of 1851, your Committee are not 
 satisfied from the evidence, that the Lessee has violated his contract in so material a 
 point as to work a forfeiture before any court of justice, but from the peculiar word- 
 ing of the statute it seemed to be the object of the Legislature to give ever} 7 ad- 
 vantage to the Lessee, in order to enable him to keep the prisoners safely, and at 
 the same time make it a source of profit to himself. We are of the opinion, there- 
 fore, that the Legislature could not compel the Lessee to clothe the convicts in uni- 
 form, or shave their heads, or increase or in any way regulate the guards, or re- 
 quire any additional temporary buildings, or forbid the " Trustie system," or re- 
 quire him to work the prisoners within the prison walls or on the prison grounds. 
 
 In view of all these positions, and the great necessity that exists for additional 
 buildings on the State Prison grounds, for the safety and security of the convicts, 
 your committea have concluded to recommend to the Legislature to buy the said 
 lease from the said James M. Estell. In answer to a resolution adopted by the 
 committee, the said lessee agrees to sell his said lease to the State for the sum of 
 $100,000, which proposition we submit to the Legislature and recommend that it be 
 accepted, and that a bill prepared by the committee and herewith reported for that 
 purpose, be passed. 
 
 We are induced to make this recommendation for the following reasons : The 
 urgent necessity for additional prison room is not only apparent to your committee, 
 but to the whole community ; it is required by every consideration of reason and 
 justice. As the convicts now are, they may at any time by a successful revolt, be 
 
cast loose upon society, and the probability of their escape is so apparent to the citi- 
 zens of the country adjoining the prison, that they live in constant fear, and as testi- 
 mony shows, the price of real estate in the surrounding country has been materially 
 reduced in consequence thereof. 
 
 The lessee cannot in our opinion, be compelled to build additional buildings on 
 the prison grounds ; it remains therefore, the duty of the State to build this ad- 
 ditional prison room. To make an appropriation and let out the building of said 
 prison by contract, would, in the estimation of your committee, require the sum of 
 at least, three hundred and fifty thousand dollars. 
 
 While we recognize the necessity of these improvements, we are not prepared in 
 the present exhausted state of our Treasury, to recommend so large an outlay of 
 money, but by the purchase proposed, the State becomes again the sole owner of the 
 prison labor, which under proper management can, and should be required to do 
 this work, thereby saving to the State a very great outlay of treasure. From the 
 report of the Inspectors, we are informed, that there is every kind of mechanics 
 among the convicts, and some as well skilled in mechanism as can be found outside 
 of the prison walls. Under a system which your committee is now prepared to 
 recommend, this convict labor will be applied to the erection of these additional 
 prisons, and their completion effected as soon by this means as by letting it out by 
 contract, and certainly at not more than one-third of the expense. We also, in ac- 
 cordance with the proposition of the lessee above referred to, recommend that the 
 property attached to the prison, and necessary to the labor of the convicts, be pur- 
 chased at a price to be affixed by appraisers, two appointed by the Legislature and 
 one by the lessee, payable in brick and stoue in San Francisco at market prices. 
 
 The property here referred to consists of the necessary working tools for blasting 
 and dressing stone, brick machinery, machine shop and steam engine, together with 
 sixteen acres of land lying adjacent to the prison grounds, and upon which is situ- 
 ated the brick yard and dining room for the convicts, with other necessary buildings 
 thereon. This purchase we deem necessary to the successful and convenient work- 
 ing of the convicts. 
 
 Should the plan here suggested by the committee be adopted, and the convicts of 
 i the State Prison be placed under the supervision of a warden or superintendent, we 
 would not recommend that all the prisoners be removed forthwith to the prison 
 ground for fear of an outbreak, but that one-half be engaged elsewhere in making 
 bricks and quarrying stone, with which to pay for the property purchased in accor- 
 dance with the agreement made with the lessee in the resolution and answer above 
 referred to, which said resolution and answer is herewith submitted, marked ex- 
 hibit "C." 
 
 Your committee in the course of their investigation, made some inquiry concern- 
 ing the title the State has to the twenty acres of land on Point San Quentin, on 
 which the prison is located, purchased from B. R. Buckalew, in pursuance to an Act 
 passed May 1, 1852, depends on a Mexican grant, which said grant has not yet 
 been confirmed, but are assured by the lessee that if said grant should not be con- 
 firmed that he holds the pre-emption claim to the same, and that he will make a title 
 to the State as soon as a title from the General Government can be obtained. Al- 
 though we do not believe the location as good as might have been selected, yet after 
 so large an outlay of money as has been expended upon that ground, we are not dis- 
 posed to recommend a removal of the prison, if good title can be obtained to the 
 land purchased of Mr. Buckalew. 
 
 The Committee are preparing bills in connection with the prison and concerning 
 
8 
 
 the future government of that institution, which bills they will present as soon as 
 the bill herewith reported shall have passed. 
 
 All of which is most respectfully submitted. 
 
 JOHN T. CRENSHAW, 
 
 Chairman Senate Committee, 
 
 G. W. COLBY, 
 
 ASA KINNEY, 
 
 Chairman Assembly Committee, 
 
 E. J. CUETIS, 
 WILLIAM A. DANA, 
 H. P. A. SMITH, 
 
 B. C. WHITING, 
 
 Chairman Select Committee, 
 
 S. DAY, 
 
 H. P. HEINTZELMAN. 
 
 • 
 
Document No. 23. 
 
 ■ i i =■ 
 
 IN ASSEMBLY.] [SESSION 1855. 
 
 REPORT 
 
 OF A MAJORITY OF THE 
 
 JUDICIARY COMMITTEE, 
 
 ON THE CONSTITUTIONALITY OF 
 
 ASSEMBLY BILL, NO. 199, 
 
 " An Act granting to James L. Graves and Thomas C. Burton and such 
 
 others as they may associate with them, the right to construct a 
 
 Toll Bridge across the American River, at or 
 
 near the Mississippi Bar." 
 
 SUBMITTED APRIL 2, 1855. 
 
 [B. B. REDDING, STATE PRINT 
 

 
 
EEPOET. 
 
 Mr. Speaker: 
 
 The Committee on the Judiciary have considered Assembly bill No. 199, enti- 
 tled "An Act granting to James L. Graves and Thomas C. Burton, and such 
 others as they may associate with them, the right to construct a Toll Bridge across 
 the American Biver, at or near the Mississippi Bar," and a majority submit the 
 following report : 
 
 It is understood that the principal purpose of the present reference was to as- 
 certain the opinions of this Committee in regard to the constitutionality of the bill, 
 and therefore the question of policy and propriety will be left as presented by the 
 previous report of the Committee on Roads and Highways. On the first submis- 
 sion of this question, a majority of the Committee thought that it would be readily 
 determined by the application of a few general rules and principles of unquestioned 
 accuracy, and that no labored argument by us could be required or even tolerated. 
 It has, however, resulted that our first impressions were not justified. A minority 
 of the Committee, reputabb alike for ability and devotion to correct principles, 
 after investigation, have expressed an opinion wholy antagonistic to that of our- 
 selves. 
 
 Meantime, the Executive, in view of the duties imposed by his position, has 
 deemed himself constrained to interpose his veto to the passage of two kindred 
 bills, and the able and earnest views urged by his Excellency, cannot fail either di- 
 rectly or indirectly, to materially affect the determination of the question. But 
 these circumstances, however embarrassing, cannot justify us in witholding a free 
 and full expression of our own conclusions. We assume that it is as much the 
 duty of the Legislature to exercise a power permitted by the Constitution when de- 
 manded by the public good, as it is to refrain from the exercise of a power which is 
 denied by that instrument. 
 
 It is not alone the duty of government to do no wrong, — to fulfil the purposes of 
 its creation it must do right. A just fidelity exacts of each department of the 
 government a prompt vindication of the constitution, both against positive infraction 
 and incautious abandonment. In view of our official oaths, we cannot, we dare 
 not, passively surrender a constitutional power of the Legislature, the exercise of 
 which may be necessary to secure the best interests of the State — and such in our 
 opinion, is the power which is now the subject of argument. 
 
 By the common law of England, all Toll Bridges and Public Ferries were held 
 to be prerogatives of the Crown, as representative of the State — and where the 
 
4 
 
 right to keep or maintain either was granted to an individual, it was termed a fran- 
 chise ; in other words, it was "a royal prerogative in the hands of a subject." We 
 hazard nothing when we affirm, that throughout the American Union the same 
 rights have been asserted by the several States. With us, Toll Bridges and public 
 ferries have been recognized as incidents or prerogatives of the municipal sov- 
 ereignty, and have been granted to private citizens in the exercise of the Legisla- 
 tive discretion. 
 
 It is but a political truism, that the people of the State retain all powers not de- 
 nied by their Constitution ; and these powers in the absence of any constitutional 
 restraint, they may exercise through their representrtives. In the absence then of 
 any constitutional inhibition, the subject matter of this bill is within the legitimate 
 purview of the Legislative power. Those who deny the power must show the 
 prohibition. 
 
 The doubt in this case is suggested by Section 31 Article 4 of our State consti- 
 tution, which provides that " corporations may be formed under general laws, but 
 shall not be created by special Act, except for municipal purposes. All general 
 laws and special Acts passed pursuant to this section, may be altered from time to 
 time or repealed." The bill under consideration is for a special Act, and for pur- 
 poses other than municipal, within the meaning of the section. If, therefore, it 
 proposes to create or confer corporate powers or privileges, it is within the pro- 
 hibition. The Legislature cannot by special enactment create or confer such pow- 
 ers or privileges. We, however, confidently assume that a brief examination of 
 the bill will show the entire absence of all ground to affirm that it proposes to 
 create or confer any such power or privilege. A corporation is said to be an arti- 
 ficial person, and according to Blackstone there are five incidents inseparable from 
 its very existence. Among these is a corporate name in which it must act — sue and 
 be sued. It must have the attribute of succession, whereby its moneys and effects 
 pass from its members to their successors without conveyance or assignment. All 
 the corporators may change, but still there exists the same corporation, the same 
 artificial person, possessed of the identical properties conferred by the Act of its 
 creation. 
 
 The purposes and incidents of corporations are perhaps nowhere set forth 
 more happily than by Chief Justice Marshall, in the Dartmouth College vs 
 Woodward. " A corporation" says he, " is an artificial being invisible, intangi- 
 ble and existing only in contemplation of law. Being the mere creature of law, 
 it possesses only those properties which the charter of its creation confers upon 
 it either expressly or as incidental to its very existence." These properties con- 
 tinues he, " enable a corporation to manage its own affairs, and to hold property 
 without the perplexing intricacies, the hazardous and endless necessity of per- 
 petual conveyances for the purpose of transmitting it from hand to hand. It is 
 chiefly for the purpose of clothing bodies of men in succession with these quali- 
 ties and capacities that corporations were invented and used. By these means a 
 perpetual succession of individuals are capable of acting for the promotion of 
 the particular object, like one immortal being." 
 
 In another case, this eminent jurist says, " the great object of a corporation 
 is to bestow the character and properties of individuality on a collective and 
 changing body of men." With these explicit unambiguous definitions before us, 
 we inquire, does this bill present one single characteristic of a corporation ? — 
 For ourselves, we must insist, that we do not recognize the first faint semblance 
 of a body politic or artificial person. 
 
 The proposition is to confer a simple, ordinary franchise upon individuals, 
 quoad individuals and not as corporators. It is not intended to invest these 
 individuals with any capacities or properties which as natural persons they do 
 not already possess. "Naturally, they have the capacity to accept the grant of 
 this franchise, and to exercise it in conformity with the law. Under the pro- 
 
5 
 
 posed enactment they could not assnme a corporate name, but must act in their 
 individual names or their firm name. It is not proposed to create any capital or 
 corporate stock which alone will be periled by the enterprise. Creditors will not 
 be limited in their remedy to the common money or effects, but the grantees will 
 be liable, jointly and severally to the extent of the common moneys and effects, 
 and also to the extent of the several moneys and effects of each. It is then at 
 most, but the common case of a franchise granted to corporations. In George's 
 view of the existing (English) law, 29, it is said, "one of the greatest distinc- 
 tions in contemplation of law, between partnerships and corporate companies, is 
 that in the first the law looks to the individuals of whom the partnership is com- 
 posed, and knows the partnership no otherwise than as being such a number of 
 individuals ; while in the second it sees only the creation of the charter, the body 
 corporate, and knows not the individuals." Again, Lord Holt in the King vs 
 the City of London, says, " neither the actual possession of properity, nor the 
 actual enjoyment of franchises is of the essence of a corporation." Every license 
 or permission to keep a Toll Bridge or Public Ferry, is a franchise which may 
 be held and enjoyed by the humblest citizen. The constitution does not prohibit 
 the Legislature from conferring a franchise by special enactment — this is left en- 
 tirely Ito the legislative discretion. In all this, we fully recognize the existence of 
 quasi corporations. These may be private, but they must be created with pow- 
 ers sub modo, and for specified purposes only, and hence they are called quasi 
 corporations. But still in all these there is some distinct and well defined cor- 
 porate power or property. They may be imperfect corporations ; but still sub 
 modo, and for certain purposes they are corporations. In Angell and Ames on 
 Corporations, it is said, " the joint stock banks hi England of modern creation 
 called into existence by the act of 7 Geo. IV., are considered quasi corporations, 
 as that act provides for the continuance of the partnership, notwithstanding, a 
 change of the partners. In this case, the partnership has the corporate attribute 
 succession. And a mining joint stock company was deemed a quasi corpora- 
 tion, because a suit for a demand against the company might by virtue of an act 
 of Parliament be brought against the directors. Here is attached the corporate 
 liability of being sued without the names of each individual partner composing 
 the company. The general assembly of the Presbyterian Church in Pennsylvania 
 is not a quasi corporation, because it has not the capacity to sue as an artificial 
 person. A quasi corporation is also established by law, but that assembly is 
 not." 
 
 Here there is no corporate name, no succession, no creation of any capacity or 
 property by law, and no characteristic whatsoever of a corporation. 
 
 But the difficulty in this case is supposed to be rendered more embarrassing 
 by Section 33 of the same article of the constitution, which provides " That the 
 term corporation, as used in this article, shall be construed to include all asso- 
 ciations and joint stock companies having any of the powers or privileges of 
 corporations not possessed by individuals or partnerships." And it is argued 
 that " the object of the framers of the constitution in adopting the foregoing 
 section was evidently to prohibit the law-making power from granting to pri- 
 vate persons by special enactments powers and privileges, which in the absence 
 of law could not be enjoyed by individuals or partnerships." But such is not 
 the reading of the section. It clearly implies that there are powers and privi- 
 leges which without special law may be enjoyed equally by corporations and 
 individuals or partnerships. It does not prohibit the granting of any power or 
 privilege which may be held and enjoyed by individuals or partnerships without 
 any enlargement of their natural capacities, but powers and privileges which are 
 peculiar to corporations. 
 The bill under review does not propose the creation of any new or additional 
 
6 
 
 power or capacity in the grantees of the franchise. They are to take and exer- 
 cise the same as natural persons — in their natural capacities, and none other. 
 The privilege proposed to be conferred is not peculiar to a corporation either 
 perfect or quasi — but may with equal legitimacy belong to individuals. It is 
 no answer to these propositions to assert that natural persons without an act of 
 law cannot hold or enjoy such franchise, for neither can it be so held or enjoyed 
 by a corporation ex proprio vigore. Individuals associated as such cannot law- 
 fully construct or maintain a Toll Bridge without the permission of the munici- 
 pal sovereignty expressed either directly through the Legislature or indirectly 
 through subordinate officials. If the same individuals become incorporated for 
 the same purposes under the general law which is authorized by the constitution 
 there is yet the same absence of legal right to the franchise. As a corporation 
 they are no more entitled to the privilege than they were as individuals. In 
 neither case can it be lawfully exercised without the permission of the State to 
 which it ultimately belongs. The formation of a corporation for the purpose 
 of exercising a franchise does not ipso facto imply a right to such franchise — 
 that is to be acquired by a distinct substantive act. The privileges here pro- 
 posed to be conferred are such as may be enjoyed by natural persons without 
 any enlargement of their natural capacities — such as have been so enjoyed in 
 this State from the organization of its government — such as have elsewhere 
 been so enjoyed for hundreds of centuries. The powers and privileges intended 
 to be prohibited by the constitution are such as are peculiar to corporations — 
 such as natural persons without legislative aid cannot enjoy. It prohibits the 
 creation by special act of associations and companies having any of the powers 
 or privileges or corporations not possessed by individuals or partnerships 
 Where a power or privilege may be possessed alike by an individual or indi- 
 viduals and a corporation, there is no inhibition. It only attaches where the 
 power or privilege is peculiar to a corporation, and is not equally possessed by 
 individuals. 
 
 The conclusion to which we are unavoidably impelled is that these provi- 
 sions of the constitution were intended to prohibit the creation by special enact- 
 ments of corporations and quasi corporations, and not to prohibit the grant 
 of a franchise to individuals or partnerships as such. 
 
 The attention thus bestowed upon this bill will avoid the necessity of any 
 labored examination of the Assembly resolution, which has also been submitted 
 for our consideration. The propositions embraced in the resolution are substan- 
 tially as follows : 1. Can the Legislature constitutionally confirm to a corpora- 
 tion regularly formed under the general law for the purpose of constructing and 
 maintaining a Toll Bridge a license issued to it by a Court of Sessions which 
 has proved void for want of jurisdiction in such Court ? 2. Can the Legislature 
 confer upon such corporations powers or privileges additional to those which it 
 was supposed to poFsess under the act of its creation and its original license, 
 which has proved to be void ? 
 
 These questions may involve graver difficnlties than those presented by the 
 bill already considered. We are, however, of opinion that the first must be 
 determined affirmatively. Corporations may be formed under general laws, 
 and special acts for their formation only are prohibited. In the case now pre- 
 sented it is not proposed that the Legislature shall or may create a corporation 
 or confer any corporate power by special act, but simply to validate a power 
 or privilege to a corporation already in existence and formed under the general 
 law. which is explicitly authorized by the constitution. The case supposes the 
 present existence of a body politic capable of receiving from the Legislature or 
 others any grant consistent with the objects and purposes of its creation. If it 
 was formed for the purposes of a Toil Bridge, we are of opinion that it may 
 
receive directly from the Legislature the privilege of constructing and main- 
 taining such bridge. 
 
 Our reasoning upon the bill already considered will apply to the second ques- 
 tion embodied in the resolution. The Legislature may, in our opinion, by spe- 
 cial act enlarge a simple franchise, as well as make an original grant thereof, 
 but cannot create or enlarge a corporate power or privilege — cannot constitute 
 a corporation either perfect or quasi. 
 
 It is urged that the grant of these privileges directly by the Legislature is 
 fraught with danger to the public, — and in this there may be much force. We 
 but say, that we are unable to see how a privilege threatens to be so disastrous 
 when derived directly from the Legislature ; and yet exactly the same privilege 
 with exactly the same incidents is perfectly safe and harmless when derived 
 from the sucordinate officials of the State. We are inclined to think that the 
 danger, if any results from the character of the privilege, and not from the 
 source whence it is immediately derived. For the protection of the public all 
 such privileges ought to be vigilantly guarded and restricted, whether proceed- 
 ing from special enactment or from the general law. We shall not in this con- 
 nection pause to inquire whether the privileges now proposed to be secured are 
 so guarded and restricted, and in conclusion have only to express our earnest 
 fear that these, like nearly all of similar privileges which we have known to 
 proceed from Courts of Sessions and Boards of Supervisors are incautiously ex- 
 pressed and without the limitations imperatively demanded by the general good. 
 I am authorized to say that Messrs. Ashley, Farley, Sherrard, Taylor and Ro- 
 gers concur in this report. 
 
 Respectfully, &c, 
 
 P. L. EDWARDS, Chairman. 
 


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