
    The State vs. D. P. Armstrong, et al.
    
    Constitutional Law. Legislative powers in reference to charters of incorporation. Act of 1856, ch. 254. The power to grant charters of incorporation is vested hy the Constitution, of Tennessee in the Legislature alone, to he exercised as a high and responsible trust, and only in cases where it may he deemed expedient for the public good. It is among the powers, the exercise of which is expressly reserved to the Legislature itself, and one which cannot he delegated. The act of 1856, ch. 264, which confers upon the Courts the power to grant charters of incorporation, is therefore unconstitutional and void.
    tkom knox.
    The defendants in error filed their petition in the Circuit Court of Knox county, at the June Term, 1856, to be constituted a body politic and corporate under the name and style of the “ Knoxville Savings Institution.” The proceeding purports to be based upon the act of 1856, ch. 254, entitled, “An Act to authorize the formation of companies, and regulate private and local affairs, and to retrench the expenses of legislation,” which confers upon the Circuit Courts the power to grant charters of incorporation upon the conditions therein prescribed, except for banking purposes. Among the powers prayed for in the petition, are those of discounting notes, buying and selling stocks, dealing in exchange, gold and silver coin, and uncurrent bank notes; also the power to receive general and special deposites, to issue receipts therefor, and to allow such interest thereon as may be agreed upon, not exceeding legal interest, and semi-annually to declare and pay to stockholders, dividends of profits, &c. It also prays that a certain designated annual tax shall be imposed upon the corporation, which shall be in lieu of all other taxation. By the judgment of the Circuit Court, Alexander J., presiding, the defendants in error were incorporated with all the “ powers, privileges, franchises and immunities” prayed for in the petition. Attorney General McAdoo, appealed in error to this Court.
    Sneed, Attorney General, for the State:
    It is submitted that there is error in the judgment of the Circuit Court by which this company is incorporated — that said charter is in derogation of the laws of the land, and that said judgment should be reversed.
    
      I. It is insisted that the act of 1856, ch. 254, under which the defendants in error were incorporated, is repugnant to the constitution.
    The great evils which might result to the public from multiplying incorporated companies — the ease with which franchises might be abused, and chartered rights perverted under the pretended sanction of an act of incorporation, was not unforeseen by the framers of the constitution of Tennessee. Public policy would seem to dictate at all times and in all places, that the creation of “a fictitious person” with so many facilities to sin, and so great an impunity from punishment, should be the prerogative only of the supreme power in the State. The representatives of the people, whose interests they are sworn to protect, should scrutinize closely and grant eautiously extraordinary franchises, not enjoyed by all citizens in common, to what Chief Justice Marshall designates as “an artificial, invisible, intangible being, endowed with immortality, and yet existing only in contemplation of law.” And not only should such applications be cautiously granted by the supreme legislative power, but they should never be granted at all — in the language of an eminent jurist, but “in consideration of some manner of utility they may prove to the public.” In England; they can only be granted by the King or by special act of Parliament — and it is said that even those which the Courts have sometimes determined exist by prescription, can generally be traced to an express grant. And in this country the power to create corporations has been generally ranked among those prerogatives which belong to the Legislature only, both as to public and private corporations — to be exercised upon the high responsibility of the lawgivers themselves, and never to be delegated to any inferior tribunal. — Vide Ang. & Ames on Corp., § 71.
    But the Constitution of Tennessee confers upon the Legislature no right to delegate this power to the Courts of Justice; on the contrary, the power is in express and unmistakeable terms reserved to the Legislature itself, as one of the attributes of the supreme power which they represent. The proviso to the 7th section of the 11th article of that instrument is in these words: “ The Legislature shall have power to grant such charters of incorporation as they may deem expedient for the public good.” Thus this authority to create corporations, which is and ought to be the prerogative of sovereignty everywhere, is thus expressly reserved to the Legislature itself; and if it had been intended by the framers of that instrument that this power should be delegated at the discretion of the Legislature to any other tribunal, it would have appeared in this clause, which is the only one where the legislative power is defined and declared upon this important subject.
    The 8th section of the 11th article of the constitution, under which doubtless this power was assumed and claimed by the Legislature, is in these words: “The Legislature shall have the right to vest such powers in the Courts of Justice, with regard to private and local affairs, as may be deemed expedient.”
    To hold that this power is conferred under this clause, would not only be in derogation of the principles and policy referred to, but would be doing violence to the plain letter of the constitution itself. Powers vested in the Courts of Justice, “with regard to private and local affairs,” cannot mean, powers to exercise what is considered and treated, both in this country and in England, among the most important and responsible attributes of sovereignty itself. And this view is strengthened and confirmed by the fact, that this identical power is expressly and in terms, reserved to the - Legislature itself. This Court has said, that, “ Whenever a State constitution prescribes a particular manner in which a power shall be executed, it prohibits every other mode of executing such power.” — Vide Smith vs. ISorment, 5 Yerg., 271 ; 1 Meigs’ Dig., p. 308, (title, Construction.) The constitution of this State provides that the Legislature shall have power to grant charters of incorporation when deemed expedient for the public good; and having thus provided, it forbids the exercise of this power by any other department of the government. The constitution as the fundamental law of the land, must be interpreted to mean what it says and to say what it means. Any other rule of interpretation would lead to endless conflict and confusion. Thus, when a power is expressly granted by one clause, and the mode and manner of its exercise plainly defined, it is not legitimate to infer a variant or contrary intention by mere implication from another clause, unless clearly deducible from its terms. It is not material to enquire what the framers of the constitution meant by the words that the Legislature should have power to vest in the Courts of Justice such powers with regard to private and local affairs as may be deemed expedient, if it be clear that no such power was delegated in reference to granting charters of incorporation. It may be observed however, that in the organization of political communities, there are many matters of “ local and private ” concern, which the necessities of the public require that the Courts of Justice should be vested with power to control, direct and govern for the public benefit. Thus, under this clause, the County Courts were clothed with their powers and varied jurisdiction in reference to county affairs — the appointment and qualification of guardians and administrators — the laying off of roads, the building of bridges, taking care of the poor, regulating patrols and all other matters of police regulation pertaining to county government. And thus also, the Circuit and Chancery Courts are vested with certain powers by statute in addition to the general jurisdiction derived from the common law, such, for example, as granting divorces, decreeing alimony, assigning dower, revising and correcting the errors of the County Courts- in matters of “private and local” concern which may be brought brefore them by appeal, in arresting and correcting the abuses of corporations, &c. Thus, it has been said by this Court, that “the Legislature has the power to direct the mode by which members of a particular corporate body may be notified to appear before the ordinary tribunals of the country, to be proceeded against according to the public and general laws of the land.” — Vanzandt vs. "Waddel, 2 Yerger, 260. Vide Meigs’ Dig., p. 319. (title, Partial Legislation.)
    The County Court is exclusively the creature of statutory jurisdiction, and is subject to have its jurisdiction enlarged as it may “ seem expedient,” as to any matter of “private and local” concern, where the exercise of the power is not expressly reserved to the Legislature itself. This jurisdiction, as well as that of all other inferior Courts, is under the 8th section of the 6th article, to be regulated by law; but it is denied that this power to regulate the jurisdiction of the Courts, carries with it the power to vest in them any such functions as that of granting charters of incoi'poration, which, as we have seen, is vested alone in the Legislature itself. Many reasons of sound policy might be adducéd in support of this view, in addition to what has been stated, but these things will occur to the minds of the Court without the necessity of specifying them.
    II. It is insisted, that if the first proposition be not tenable, there is another exception to this proceeding, concerning the validity of which there can be no question.
    The act under consideration expressly interdicts the granting of any Banking privileges whatever, and yet the Court will perceive that banking privileges are conferred by the charter in question. The charter purports to be one for a Savings Institution. A savings bank is defined to be, “a bank in which the savings or .earnings of the poor are deposited and put at interest, for their benefit.” These institutions exist in many of the commercial cities of the Union, and when properly conducted, are of mutual benefit both to the bankers themselves and to the laboring classes who have thus afforded them a secure and remunerative investment for their hard earnings. But this corporation is something more than a mere savings bank. It is a bank of discount, and of general and special deposit, with, power to buy and sell stocks, to deal in exchange, gold and silver coin and uncurrent bank notes; and in short, all the powers of a banking corporation except that of issuing bills and notes for circulation; and even this, is in effect granted in the power to issue receipts for money deposited. These powers are to be exercised as a business, and were certainly never contemplated by the statute in question, as the exercise of them constitutes nothing more nor less than the business of banking, which is specially forbidden by the statute under, review, as well as by the general law of the land, unless expressly authorized by the Legislature. See act of 1827, to suppress private banking; also 11 Humph., 23.
    III. This charter assumes to impose a tax upon the corporation, which the law gives the Court no power to do.
    The authority to impose taxes is another attribute of the sovereign power of the State, which can alone be exercised in the manner indicated by the constitution. Vide 28th and 29th sections of the 2d article Constitution of Tennessee.
    Upon these several grounds, it is insisted that the Circuit Court had no power to grant this charter to the defendants in error, and the judgment should be reversed.
    T. C. Lyon, for the petitioners:
    The petitioners prayed to be incorporated under the provisions of the act of 26th February, 1856, ch. 254, Acts, p. 514.
    
      The petition is in compliance with the act in setting forth the name of the company, its powers, duties, liabilities, capital stock, &c., &c.
    1. It is insisted that this act is unconstitutional, and therefore void.
    Because the Constitution of Tennessee, it is argued, delegates to the Legislature the power “to grant such charters of incorporation as they may deem expedient for the public good,” the Legislature being the agent to whom this power or trust is delegated, cannot delegate it to another agent; that this is a discretion confided to the Legislature, which it is incapable of transferring to another agent.
    As preliminary to the consideration of this important question, it is deemed essential to consider the entire clause of the constitution, from which the above extract is taken. It will be found in section 7, of article il, Nich. & Car., p. 60, and in these words:
    “ The Legislature shall have no power to suspend any general law for the benefit of any particular individual; nor to pass any law for the benefit of individuals inconsistent with the general laws of the land ; nor to pass any law granting to any individual or individuals, rights, privileges, immunities or exemptions, other than such as may be, by the same law, extended to any member of the community who may be able to bring himself within the provisions of such law. Provided always, the Legislature shall have power to grant such charters of incorporation as they may deem expedient for the public good.”
    Now, what is the object of the proviso to this clause of the constitution? Is it the grant of a substantive power with the mode of its execution defined and limited? Or, is it but performing the usual office of a proviso in annexing a condition or qualifying the enacting or substantive parts of the clause?
    The previous parts of this elause are entirely prohibitory and restrictive on the exercise of certain powers of the Legislature. So much so, indeed, that it is evident the Legislature would have been denied the power of granting charters of incorporation without the proviso.
    The true interpretation, then, to be given to this proviso seems very clearly to be this, that as it is not meant by these respective clauses to prohibit, the Legislature from granting charters, this power may be exercised as before.
    To grant a charter of incorporation is the exercise of a usual, ordinary legislative function, inherent in the Legislative Department of the government. No grant of power was therefore necessary in the constitution;, and all that was necessary, all that was proper, was a restriction or limitation of this power. But there is no limitation or restriction in this proviso; the condition that charters shall be granted for the public good amounts to nothing; the Legislature being with or without this elause, sole judge of that. If then, this proviso cannot be construed as a grant of power, but merely a declaration that this power was not intended to be embraced in the clauses prohibiting the exercise of certain powers, then the Legislature is competent to appoint such agent as it deems proper to exercise it.
    2. But the eighth section of the eleventh article expressly authorizes the Legislature to confer upon the-Courts, power in respect to private and local affairs. The constitutionality of the act of 1856, may be well maintained under this section of the Constitution. All the power vested in the Circuit Courts is for private and local affairs; they are for carrying on mining, manufacturing, mechanical, chemical business, building bridges, turnpikes, erecting dams, making insurance or savings institutions, &c., &c. These are all purely for private purposes, and local in their nature. From time immemorial, the County Court has received and exercised the power of opening and establishing public roads, of granting, franchises for public ferries, toll bridges, &c.
    It is not perceived that these powers exercised by the Courts are less local than those granted under the act of 1856. See Ang. & Am. on Corporations, pp. 44-5, § 5.
    3. There is not a delegation of the power of the Legislature in this case. It is a general law, incorporating all persons who may seek to avail themselves of it.
    The Court does not grant the charter of incorporation. The Court has no discretionary power in granting or refusing. The province of the Circuit Court is alone to decide whether the parties applying have brought themselves within the provisions of the statute. If so, they become corporate, and are therefore at liberty to proceed in the exercise of the privileges applied for..
    The Circuit Court is made the agent to decide if the law is complied with, and see that the laws and constitution are not infringed.
    2. It is insisted by the Attorney General that the petition setting forth the powers and privileges which 'the parties design to exercise, is repugnant to the proviso of the act declaring that no banking powers shall be exercised under this act.
    There are no banking powers enumerated in the petition. Because banks do exercise seme or even most of the powers therein enumerated, is no argument that they are banking powers within the meaning of the act against it. Brokers also exercise the same powers, and it is competent for any individual to exercise all these powers.
    The distinguishing feature of a bank at this day, is its power and privilege of issuing its notes for circulation. Any individual or oompany could also do this but for the prohibitory act of 1827.. There may be banks of deposit, of discount, and of circulation. Here they are united. But, nevertheless, the prohibition against the exercise of banking powers must be referred to the power of issuing notes. Because that is the only feature of a bank which may not be exercised by any individual without any express grant from the Legislature. See the opinion of the Legislature in the charter granted at page 74 of the acts of 1856.
   McKinney, L,

delivered the opinion of the Court.

This is an -appeal in error, in behalf of the State, from the action of the Circuit Court of Knox, at the June Term, 1856, granting to the defendants a charter of incorporation, by the corporate name of the Knoxville Savings Institution.” This proceeding purports to be founded upon an act.of the General Assembly, ch. 254, passed on the 26th of February, 1856, entitled “an act to authorize the formation of companies, and regulate private and local affairs, and retrench the expenses of legislation.”

This is an extraordinary act. The first section professes to vest the power in regard to private and local affairs, in the several Cúcuit Courts of this State, under certain limitations and restrictions. The several sections provide that any number of persons, not less than three, may “ associate themselves . together for the purpose of pursuing or carrying on any branch or branches of manufactory, mining, mechanical, chemical, or other business; for promoting education, science, or art; for erecting ferries or mill dams; for establishing insurance, fire, savings, navigation, commercial, or agricultural business; building or loan associations; or any other pursuit, business, or occupation, or calling, which may be lawfully carried on, or engaged in, in this State, for private, social, public, or municipal purposes ,” And, in addition, the 16th section declares, “That, the provisions of this act, and the act of 1850, ch. 181, shall extend to all societies, charters, or associations, which may be formed for the promotion of benevolence, religion, or morality; or for the protection cf the property or per-sons of the members thereof, or for their social improvement, so far as the same are applicable.”

The process of incorporation is this: The persons desiring to be incorporated are simply required to present a petition to the Circuit Court of the county “ where the company or principal office of the company is located or to be kept,” setting forth the name assumed to designate such company; the place or places where the business of such company is to be conducted, and the kind or branches of business, pursuit, or occupation to be carried on, the total amount of the capital stock of such company, &c,; the names and residence of the stockholders; the powers, duties, liabilities, rights and privileges of the members of the company, &e., and if it shall appear to the Court, that the powers, duties, liabilities, rights or privileges assumed for said company, or the provisions contained in said petition, are not repugnant to the provisions of this act, or to the Constitution and Laws of this State, or of the United States, the Court is to order the petition to be entered of record, in a book to be kept for that . purpose, and to order further, “ that said company be formed in accordance with the provisions of this act.” And upon filing a copy of the record of the Circuit Court, in the office of the Secretary of State, the process is completed, and the persons named in the petition, “their associates, successors and assigns,” are thereby “ created a body politic and corporate.” And in addition to the ordinary powers, every company incorporated under this act, is made, “ capable of buying, selling and conveying, any lands, tenements and hereditaments, goods, wares and merchandise, whatsoever, necessary or useful for said company to carry on their pursuits, business or occupation.”

The act further provides, that any company which, may be formed under its provisions, “ may increase or diminish its capital stock, or. may extend its business to any other branch of business, or may change the terms of its chartered, rights, •privileges and powers,” by petition to the Circuit Court in the mode before stated.

It is further declared, that the liability of the stockholders shall not exceed the amount of the stock subscribed by each.

The shares of stock are made transferrable on the books of the company, “in such manner as the by-laws may provide.

The proviso to the fifth section declares, “that no company formed under the provisions of this law, shall have or exercise any banking powers whatever.”

All existing laws, “ contravening the provisions of this law,” are expressly repealed.

All charters of incorporation under this' act, are perpetual — no limit is affixed to their duration. They are likewise irrepealable — no power of repeal is reserved, nor is any power of control or supervision whatever retained by the Legislature, or lodged in the Courts.

The foregoing are some of the more striking features of the act, and all, perhaps, that need be noticed for our present purpose.

The so-called charter under consideration, assumes for the company the benefit of perhaps all the rights, powers and privileges, authorized by the act, and goes beyond. It assumes, and has the power expressly conferred upon it, in the face of the prohibition of the “ exercise of any banking powers whatever” — the right to discount notes, buy and sell stocks, deal in exchange, gold and silver coin, and uncurrent bank notes, and to “ issue receipts for money deposited.”

It is further provided that infants and femes covert, may make deposite in said institution, and that such deposites “ shall he for their own separate use, free from other control or contract whatever.”

A tax is likewise voluntarily imposed, the act being silent on the subject of taxation, payable to the State annually, of one-half of one per cent, on each share of capital stock, “ which shall he in lieu of all other taxes."

The case is brought into this Court, under the provision of the fourteenth section, which makes it the duty of the Attorney General, to represent the State, in all applications under this act.

Two general objections are urged against the validity of the present charter: First, that its provisions to some extent, are inconsistent with the act. And, secondly, that the act itself is repugnant to the Constitution.

The multiplication of corporations of various kinds, in several of the American States, has long been regarded as a serious evil by many of our most enlightened statesmen, and jurists. It has been attempted in some of the States, to check their increase by constitutional restrictions. Such was the purpose of the provision in our amended Constitution, limiting the creation of corporations to such as might be deemed “expedient for the public good.” The rage for corporations is not easily to be checked. The immense power which a large consolidated capital insures our business of every kind, and still more, perhaps, the impunity secured by incorporation, to the persons and property of the members, from liability for the debts of the corporation, beyond the amount vested in the capital stock, naturally enough accounts for the extreme eagerness with which they are sought, and two often granted, at the sacrifice of the public good.

The attempts to facilitate their multiplication, by the act under consideration, is alarming to every reflecting mind. A local tribunal is constituted in each county of the State, with full power to create corporations of every sort, municipal, public or private, ecclesiastical or lay, civil or eleemosynary, and for every possible purpose, within the scope of the constitution and general laws. No other restriction upon the powers to be granted, is to be found in the act, except the prohibition in respect to “banking powers.” A remarkable feature of the act is, that the persons seeking to be incorporated, are at liberty to claim, and prescribe for themselves, as a matter of right, whatever rights, powers and privileges they may' choose to exercise. In this respect, the Court has no discretion. However unwise in themselves, or contrary to public policy, or mischievous in their tendency, the provisions of their charter may be regarded, yet, if they be not positively repugnant to the act, or to the constitution and general laws, the Court cannot refuse to grant the charter. The powers granted to different corporations, for the same general purposes, may be as diverse and conflicting as are the views and opinions of the different tribunals granting them, and there is no arbiter provided to decide between them. Each corporation is a petty sovereign, within its own sphere. Each corporation thus created, may increase or diminish its capital, may change its chartered rights, may extend its operations to any other kind of business, may traffic in lands, or goods, may transfer its stock in such manner as it may choose to adopt, and all this it may do, of its own mere pleasure. And the corporate body, so constituted, is wholly irresponsible to the public, or to individuals with whom it may have dealings, no security or indemnity being required by the act. Its charter is perpetual and irrevocable. It is subject to no supervision or control. And all laws contravening the provisions of the act, under which it is incorporated, are repealed. It is scarcely necessary to remark, that a grant of corporate privileges to private corporations, involving private rights, is in the nature of an executed contract, and cannot be revoked.

The extraordinary provisions of this act, were its validity admitted, would demand, that it should be scrutinized and construed with great strictness; and that every assumption of power, not intended to be granted, should be carefully guarded against. But, in our view of the case, this does not become necessary for the present decision. It is sufficient to say, in general terms, that the charter before us is, in several respects, inconsistent with the act. It confers power to discount notes, deal in exchange, dec., in palpable violation of the provisions against the exercise of “banking powers.” It arrogates the power to place deposites, made by infants and femes covert, beyond the reach of parents, husbands and all other persons; and even beyond the control of the law. And it usurps the power of taxation; and, in addition, exempts the corporation from further taxation, for all future time. But, holding the entire charter to be a nullity, upon another ground, we need not dwell upon objections to particular provisions.

And this brings us to the second, and more important objection — the invalidity of the act itself.

The act was designed,— as is manifest from the purposes avowed in the bill, as well as from the express terms of the first section,— as an unqualified transfer of the exercise of the power to grant corporate privileges, from the Legislature to the Courts; and probably was intended to- exhaust the power of the Legislature, in respect, at least, to all such corporations as are within the purview of the act. And the question is, can the Legislature divest itself of this power, by a devolution of the power on the judicial department, or other substitute?

The constitution of this State (art. 11, § 7) declares, that “ The Legislature shall have no power to suspend any general law, for the benefit of any particular individual; nor to pass any law for the benefit of individuals, inconsistent with the general laws of the land ; nor to pass any law granting to any individual or individuals, rights, privileges, immunities, or exemptions, other than such as may be, by the same law, extended to any member of the community, who may be able to bring himself within the provisions of such law; provided always, the Legislature shall have power to grant such charters of incorporation as they may deem expedient jor the public good.”

It is argued by the counsel for the defendants, that this proviso is not to be regarded as a substantive grant of power. That the power to grant corporate privileges, is properly an original, inherent, legislative function; and that the sole design of the proviso was, to exclude the interpretation of the preceding prohibitory clauses, as a denial of the power to the Legislature to exercise this function, in as ample manner as it before existed. That the effect of this proviso is, to leave this power, and the mode of its exercise, to the discretion of the Legislature, as one of the powers incident to that department of the government, unrestricted by anything in the constitution. And from this position the conclusion is deduced, that it is competent to the Legislature to delegate the exercise of this power to the Courts, or any substitute it may be thought proper to select.

If the effect of the proviso, were that supposed in the argument, which we do not admit, the conclusion is by no means legitimate.

In England, corporations are created either by act of Parliament, or by letters patent from the Crown. And it seems that the King may grant to a subject a general power to establish corporations. The subject upon whom this power is conferred, however, is viewed as only the instrument of the Crown; and the act of incorporation is regarded as the act of the King, upon the principle “qui facit per aiium, facit per se.” But this doctrine is wholly inapplicable in this country. Here, corporations are created only by statute. In this State they cannot exist otherwise.

In the theory of our government, all sovereignty is inherent in the people, the constitution of this State so expressly declares. It fm-ther declares, (art. 2, § 1,) that “The powers of the government shall be divided into three distinct departments, the legislative, executive and judicial.” And section two, that no one of these departments “shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.” Thus, each department is limited within its own appropriate sphere. To each has been delegated by the people — whose agents they are — such portion of sovereignty as was deemed expedient. On the one hand, neither can assume the exercise of any of the powers conferred upon either of the others; nor, on the other, can either diVest itself — by transfer to another department, or other sub-agent — of any portion of the power expressly confided to its own exercise, except in virtue of an explicit authority to that effect, given by the constitution itself.

It is obvious, then, that the construction of the proviso to the seventh section, contended for by the defendant’s counsel, does not aid the argument in favor of the authority of the Legislature to delegate to the Courts the power of establishing corporations. For whether this power be viewed simply as the exercise of an ordinary function of legislation, upon which the constitution has imposed no restriction; or as the exercise of a power derived by express grant from the constitution; still, in either aspect, it is a power properly belonging to the legislative department, and being such, its exercise by either of the other departments, is prohibited by the constitutional provision above cited. There can be no such thing, under the constitution, as the devolution of power by one department upon another, unless by special authority of the constitution itself, and none such exists in reference to the power in question. The delegation of sovereign power is, in itself, an act of sovereignty, and can only be made by the constituent body in whom the original power resides, or by its express . authority.

It is true, the legislative power is, in some respects,, “the sovereign power of the State.” Its constitutional powers are much more extensive, and less capable of being circumscribed Within precise limits, than those of either of the other departments; yet the constitution has prescribed certain bounds which it cannot transcend, and beyond these limits its acts are void.

If the Legislature might do what has been attempted by this act under consideration, that system of checks and balances introduced into our forms of government, both state and federal, and founded on the distribution of powers between the several departments, on which the safety of our free institutions has ever been found mainly to depend, might soon be destroyed. But we construe the proviso to be an abridgement of the power of incorporation. The power is conceded, but the purpose for which it may be exercised is also declared, namely, “for the public good.” The Legislature may not grant charters of incorporation, ad libitum, for any and every purpose; but only “ such • charters ” as may be “ expedient for the public good,” The power is not general. It is qualified and restricted by the specification of the purpose for which it may be exercised.

We therefore hold, that the act under consideration is inconsistent with the constitution and void. First, because it attempts to vest the judicial department with the exercise of a power which belongs exclusively to the Legislature; and, in addition, it assumes to transfer, what the Legislature did not possess, unlimited power to grant charters of incorporation, for all conceivable purposes, at the will and pleasure of the applicants, wholly irrespective of the “public good,” and even contrary thereto.

And, secondly, because the Legislature itself is but an agent of the people. Its entire authority is merely a delegation of power from the constituent body — the people; its members are the chosen and confidential depositories of the law-making power of the government ; to whom, in the most emphatic sense, are confided •personally the most important and sacred govermental trusts — trusts which, in their very nature and intention, must be exercised in person, the idea of a transfer or delegation thereof, being in direct opposition to the design and ends of their creation.

But it'is argued that the validity of this act may be maintained under section eight of the article of the constitution before referred to. That section is as follows, “ The Legislature shall have the right to vest such powers in the Courts of Justice, with regard to private and local affairs, as may be deemed expedient.”

This clause follows in immediate proximity, that upon which we have just commented, which confides the power in question to the Legislature. And it is obvious, that the framers of the constitution did not intend, by this clause, that the Courts should be invested with the power of conferring corporate capacities and privileges, in the proper and general sense of these terms. This power, by the preceding clause, had been distinctly, and in explicit terms, vested in The Legislature; and it would be in violation of every just principle of interpretation to assume, that if it were intended that the Courts might be vested concurrently, for some purposes, with the exercise of a power properly belonging from its nature, to the Legislature; and previously granted to that department— that such intention would not have been declared in -express terms.

And there is such an apparent incongruity and unfitness in the scheme of erecting some seventy odd local tribunals, each clothed with the power to grant charters of incorporation, to all persons, and for all purposes, as to forbid any amplitude of construction, for the purpose of sustaining the act in question. But there is little room for construction in reference to this clause. We must suppose that the framers of the constitution intended what their language naturally •imports. In the one clause, they speak of the power to grant “ charters of incorporation,” and dispose of that power by intrusting it to the Legislature. In the other clause,, they merely speak of “powers” in regard to “¡j&ivate and local affairs.” This term “ powers,” it must- be admitted, is not very definite, yet the distinction between the object and purposes contemplated by the two clauses, is perhaps as obvious and as marked as is the difference between mere matters of the nature of county police, which do not need the machinery of -a corporation for their attainment; and those matters of more important and general concern, affecting the “public good,” which demand the facilities and exclusive benefits of corporate capacities and privileges, in order to their successful operation.

When the important difference is considered, between the power to create a corporate body, with all its exclusive privileges and exemptions, to be held in perpetual succession; and the simple power to confer certain previously defined rights and privileges, upon individuals, as natural persons, to be held and enjoyed, or transferred, as other civil rights; we can readily enough understand what was designed by the clause of the constitution now under consideration.

It was, no> doubt, thought to be enough, for the convenience and well being of the community, that, by a general law, to be enacted by the Legislature, and made applicable to all persons who might bring themselves within its provisions, the Courts might be empowered, as the instruments of the Legislature, to grant to individuals, as citizens and members of the community, such rights and privileges, defined by law, in regard to matters of a purely private and local nature, as the Legislature should deem it expedient to-bestow.

An authority of this nature had been' imparted to the Courts, in various instances, by the Legislature, prior to the introduction of this clause into the amended constitution of 1834; and these, and such like rights and privileges, were contemplated by its provisions.

The case before us does not, however, require that we should attempt to define the precise extent of the “powers” within the purview of the clause. It is sufficient for the present case to determine, as we do, that it does not authorize the Legislature to invest tbe Courts with power to grant “charters of incorporation.”

The order of the Circuit Court, incorporating the “Knoxville Savings Institution,” will therefore be reversed and annulled, the application be refused, and the petition dismissed.  