
    Jabez Ellis versus William Marshall.
    An act of the legislature incorporating certain persons, named, for the purpose of making a street, and subjecting the individuals to assessments by the corporation, for the expense of making the street, will not bind a person named in the act unless he assented thereto.
    Ejectment. The plaintiff claimed under a sale by the “ Front Street Corporation in the town of Boston,” established by a law of the commonwealth, passed March 6, 1804.  By this statute sundry persons, and amongst them the defendant, Marshall, described as “ being owners and proprietors of the lands and flats over which the said street will pass, and of the lands and flats adjoining thereto,” are incorporated for the purpose of making a street in the town of Boston. By the third section of the statute, the corporation are authorized to assess upon all the owners and proprietors of said land and flats, according to the proportion they severally hold therein, such sums of money as shall be agreed upon by the said proprietors, or the major part of such of them as shall be assembled at any legal meeting to be called for that purpose ; and if any of the said proprietors shall neglect or refuse to pay the sums of money duly assessed upon him therefor, for the space of three months, the * proprietors are authorized to sell, [ * 270 ] at public auction, so much of such delinquent’s share of said lands and flats-as shall be sufficient to pay the sums so assessed, and the charges of sale; and the said proprietors may, by their clerk or committee, execute a good deed to the purchaser in fee simple.
    At the last March term the parties agreed on the following state of facts, viz.: —
    “ That the act creating the Front Si reel Corporation was passed in consequence of the petition to the General Court of the major part, in number and interest, of the owners of the land over and adjoining to which the said Front Street is built, but that the said Marshall, who was one of the said owners, did nut subscribe the said petition.
    “ That a committee of the General Court, to whom the said petition was duly referred, to hear all persons interested, and to report, after giving public and general notice to all persons, heard such persons as appeared, and reported that the said petition be granted, — pursuant whereto, the said act was passed ; but that the said Marshall did not appear before the committee, nor by word, or in writing, assent to the said petition, or to the passing of the said act.
    “That there is no other- William Marshall, proprietor of lands and flats adjoining said street, but the defendant, and none other known to the parties, to whom the said act can apply; and that the Court shall consider the defendant and William Marshall, named in the said act, as the same person, if the facts before agreed to should, in the opinion of the Court, be sufficient for a jury so to find.
    “ That, after the said act passed, the said Marshall was regularly notified to attend at all the meetings of the said corporation, but did not attend to any of them; and that the said Marshall’s land adjoining said Front Street is benefited by the said street in the same proportion as the other lands adjoining the said street are benefited.
    
      
      “ That on the twelfth day of May, A. D. 1804, being after the said street was begun to be built, and before it was finished, the said Marshall was requested by the said proprietors to join them in a covenant, wherein they mutually agreed not to erect [ * 271 ] * any buildings within ten feet of the western side of said street, which he refused; but, as a substitute, a separate instrument was signed by him for that purpose, which contains the following provision: Provided, however, that this instrument, or any thing herein contained, shall not be considered as binding the said William Marshall to pay any part of the expense of making the road aforesaid ; but the legal rights and remedies of ill parties concerned in that respect shall remain the same as if this instrument had not been made.’
    “ That on the tenth day of October last, the land demanded in this action, being part of said Marshall’s estate adjoining said street, was sold at public auction, according to the rules and regulations of the corporation, and the powers granted in said act for the purpose of raising the amount of the assessment taxed on him by said corporation, as being towards his proportionate part of the expense of making said street, which, though often requested, he had refused to pay, and a deed of conveyance thereof was accordingly given by said corporation to said Ellis, to hold the premises demanded, to him in fee simple.
    “ If, on the foregoing facts, the Court should be of opinion that the said corporation could, by virtue of the said act, legally assess the said Marshall, and sell his lands for non-payment thereof, then it was agreed that the defendant should be defaulted, and judgment should be rendered for the plaintiff; otherwise, the plaintiff was to become nonsuit, and judgment be rendered for the defendant. And it was further agreed that, if any facts contained in the above statement could not by law be given in evidence to a jury in the trial of the cause, then such facts' are to be considered as no part of the statement.”
    This cause was argued at the last March term in this county by the present Chief Justice for the plaintiff, and the Attorney-General, Sullivan, and Amory for the defendant; and again at this term by the same counsel for the defendant, and Dexter for the plaintiff.
    
      For the defendant it was insisted,
    that an incorporation being considered by the law as a grant of privileges, the assent of the grantee, either express or implied, is necessary to give it effect. In this case there is nothing from which Marshall’s con- [ * 272 ] sent can * be inferred. It is not to be concluded from his neglect to appear before the committee of the legislature, because, from the petition itself, he had no ground to believe such an act as this was intended or desired. It contained no request for power to assess the owners of the land for the purpose of making this road. He might very naturally suppose that the intended law would be similar to those passed at every session of the legislature for the establishment of turnpike roads, by which, it is true, the lands of individuals over which such roads are laid are taken without their consent; but in all such cases damages, nominal at least, are always awarded, and if the owner of the land is not satisfied with the amount of such damages, he has a right to a jury to assess them. To such an act he might have no objection. He might either consider it as advantageous to himself, or from other motives might not choose to oppose it. The act itself gave him the first knowledge of its most extraordinary provisions, and then it was too late for opposition. He has, however, uniformly abstained from any act from which his consent might in any way be inferred.
    It is impossible to imagine'that the legislature would have passed such a law as this, had they not been deceived in believing that every individual whose interest was to be affected by it was consenting to it. If they were thus deceived, and the grant was thus fraudulently obtained, it is a void act, so far at least as it applies to the present defendant, who never assented.
    A patent procured by some few persons only shall not bind the rest. 
    
    The great increase of corporations for almost every purpose is seriously alarming. A spirit is growing in the country which will be productive of the most mischievous effects. Interested and corrupt motives are growing daily more prevalent from this source. The independence and integrity of every branch of our government are attempted, and it is full time that a check be put to this spirit. And to an independent and enlightened judiciary can we alone look for its application.
    * This act is a perfect novelty," a first attempt of the [ * 273 ] kind, and it is opposed to the best provisions of the constitution. By the tenth article of the bill of rights, “Each indi-' vidual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws.” But by this act, which is in its nature private and temporary, a citizen’s property is put from under his own control, and placed, against his will, under the guardianship and direction of others. Again, by the same article, “ Whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor/' In this case, instead of providing compensation for the land of Marshall, thus taken for public uses, all his adjoining lands are subjected to the will of a corporation, and to be sold at their discretion.
    But we contend that there is no pretence of public uses in this measure. This is not a public highway ; neither the town nor the corporation is even held to keep it in repair, and the corporation are authorized to set up a fence against any man’s land adjoining it, and thus prevent his passing from one part to another of his estate
    If the legislature are not to be considered as limited in the exersise of their authority, to what purpose are bills of rights and constitutions of government ? If these are of no binding force, we are under a government of men, and not of laws, and the number of the governors does but increase the evil.
    
      For the plaintiff it was argued that,
    except where restrained by
    the constitution, the legislature has all the powers of a British Par liament, and that principles of decorum as well as law require tha> restrictions on'the sovereignty be construed strictly. In examining the proceedings of every court, even of the lowest rank, such proceedings are presumed prima facie to be legal and regular ; and shal. the same candor be withheld from the court of highest authority ? The constitutional restrictions on the power of the legislature relate to the objects of legislation, and not to the manner of exercising that power on objects confessedly within its jurisdiction; and no court has a right to inquire into the manner or motive of [ * 274 ] passing an act or law, * which, under any conceivable circumstances, it might be authorized to pass. Such an inquiry would be not only indecorous, but mischievous in the extreme. If the legislature has been deceived, or has committed an error in the mode of carrying into effect an object which in some mode it confessedly had authority to effect, application ought to be made to that body to revise their doings, and to prevent or redress any injurious effects apprehended or felt. This Court is incompetent to try by a jury a fact, the truth of which has been established by a formal act of the legislature.
    Suppose the legislature to have made a grant of a township of land, would this Court examine the question whether such grant was procured byr fraud and management, and set it aside at the instance of an individual who might find his interest in avoiding it? Is the supreme legislative power of the state to be thus prostrated ? Is it not more proper, and in every view more desirable, that a veil should be drawn over any supposed mistakes, and thus harmony be maintained between coordinate departments of the government ?
    But we contend that there is sufficient evidence of Marshall’¡ 
      consent to this act. The committee published a copy of the petition, and notified the time and place of their meeting to hear objections Every one recollects the agitation which this subject occasioned at the time, in connection with the proposed bridge to South Boston. Marshall could not be ignorant of the scheme contemplated by these petitioners. He avoided any expression of his dissent, and he now opposes nothing but payment. He could not presume that others were to make this street at an immense expense, and he derive his share of the benefit, without contributing at all to the cost. Sincé the passing the act he has, by entering into a covenant with the corporation, acknowledged its legal existence; and-ought not, therefore, now to be allowed to deny it, or to question the legality of any of the provisions of the act by which it was created.
    Under the laws for regulating commissions of sewers, a bare majority of owners of the land may make application to' the Court of Common Pleas, who are to appoint commissioners with power to assess all the owners in proportion to the benefit * derived to them respectively; to appoint a collector of [ * 275 ] the taxes so assessed, clothed with all the authority over the persons and estates of the owners, as well those who consent as those who oppose, which collectors of town and parish taxes possess. It will be difficult to distinguish this provision from the one .under discussion, yet no one ever called its constitutionality in question. It'is true that an aggrieved party has ultimately a right to a trial by jury, but this only applies to the conduct of the commissioners under their commission, and not to their appointment. Shall this authority be lodged wilh so inferior a tribunal unrestrained, and shall the legislature have no power to control the petulance of an obstinate individual ?
    By virtue of several statutes of this government, passed before the revolution, the provisions of which are reenacted by statute of March 10, 1804, any five of the proprietors of lands, wharves, or other real estates, held in common, though not constituting a majority in interest, may apply to a justice of the peace for a warrant to call a meeting of the proprietors, and the effect of such warrant is to create a corporation, with power to assess the individual members, and to sell their respective shares in case of non-payment. This law is practised upon daily, and who ever heard it objected to, as an infringement of the rights- of the citizens as secured by the constitution and bill of rights? As to the phrase “standing laws” in the bill of rights, relied on by the counsel for the defendant, it is used in opposition to the arbitrary will of the sovereign, and not to he temporary or private statutes. But this article, was intended to restrain the legislature from injuring the citizen, not from benefiting him, as the facts show to have been the case here.
    
      
       3 Mass. Special Laws, 375.
    
    
      
      
        Bac. Abr. title Corporation, B. cites Rol Rep. 226
    
   Parker, J.,

after a brief recapitulation of the facts in the cause, delivered the opinion of the Court as follows : —

From the foregoing facts, and the arguments thereon by the counsel, it appears that all the proceedings of the corporation relative to the assessment and sale were correct; so that if Marshall were, at the time thereof, a member of the corporation, the title to the demanded premises in Ellis could not be disputed.

[ * 276 ] * We are therefore necessarily brought to the question, indeed the only one in the case, whether Marshall, by-virtue of the act aforesaid, became a member of the said corporation, subject to its rules and regulations, and liable to be assessed for the purpose of building said street.

The counsel for the plaintiff have contended,

1st. That by virtue of the act itself, Marshall being named therein, he became, ipso facto, a member of the corporation, the legislature having competent power to compel him thereto.

2d. That should this not be the case, the foregoing facts contain sufficient evidence of his consent, tacit at least, to the passing of said act, and the insertion of his name therein.

The determination of the first point requires that we should ascertain the true nature and character of this legislative proceeding. If it were a public act, predicated upon a view to the general good, the question would be more .difficult. If it be a private act, obtained at the solicitation of individuals, for their private emolument, or for the improvement of their estates, it must be construed, as to its effect and operation, like a grant. We are all of opinion that this was a grant or charter to the individuals who prayed for it, and those who should associate with them; and all incorporations to make turnpikes, canals, and bridges, must be so considered.

Can then one, whose name is, by mistake or misrepresentation, inserted in such an act, refuse the privileges it confers, and avoid the burdens it imposes? If he cannot, then the legislature may, at all times, press into the service of such corporations those whose lands may be wanted for such objects, whenever they may be prevailed on to insert the names of such persons by the intrigue or mistake of those more interested in the success of the object. No apprehension exists in the community that the legislature has such power. That the land of any person, over or through which a turnpike or canal may pass, may be taken for that purpose, if the legislature deem it proper, is not doubted. The constitution gives power to do this, provided compensation is made. But it was never before known that they have power over the person, to make him a * member of a corporation, and subject him [ * 277 ] to taxation, nolens volens, for the promotion of a private enterprise.

That a man may refuse a grant, whether from the government or an individual, seems to be a principle too clear to require the support of authorities. That he may decline to improve his land, no one will doubt. Although the' legislature may wisely determine that a certain use of his property will be highly beneficial to him, he has a right to judge for himself on points of this nature. The fact therefore in the case, that Marshall is benefited equally with the other owners by the making of this street, is of no importance. In Bagg’s case it seems to be agreed by the Court, that a patent procured by some persons of a corporation shall not bind the rest, unless they assent. And in Brownlow’s Reports, 100, there is this passage: “ It was said that inhabitants of a town cannot be incorporated without the consent of the major part of them, and an incorporation without their consent is void.”

In Comberbach, 316, Holt, speaking of a new charter made to the city of Norwich by Henry 4, and confirmed by Charles 2, says, the new charter had been void if the corporation had refused it; but when they accept it, and put it in execution, it is good.

If these principles were correct in England in times when prerog ative ran high, — and the crown or the Parliament could not force charters or patents upon the subject without his assent, — surely in this free country, where the legislature derives its power from the people, such authority cannot be contended for.

It being, then, the opinion of the Court that this act is of a nature to require the assent of Marshall, either express or implied, before it can operate upon him, it is necessary to inquire into the second point, viz., whether the facts agreed on in this case furnish evidence of such assent.

It is contended that the act itself, as it contains Marshall’s name, furnishes such evidence, since it must be presumed that *the legislature were satisfied on this point before they [ * 278 ] passed the act.

This argument would have great weight if its force were not impaired by the facts stated in this case. It appearing that Marshall did not sign the petition; that he did not, in word or writing, assent to it, or to the act founded upon it; that he did not attend before the committee; and that, in the only transaction in which he noticed the corporation, he protested against its authority over him, — the presumption arising from his name being in the act is weakened, if not destroyed.

It is then said that, public notice having been given of the hearing intended by the committee, his silence is evidence of his tacit assent to the passage of the act. As we are bound to presume every thing in favor of the doings of the legislature, we should think this a strong, if not a conclusive argument, if the notice given had been such as necessarily to signify to Marshall that he was to be included in the act prayed for. But on perusing the petition, which probably was published in the papers, we find nothing in it from whicli he could infer that his property or rights were to be affected, in the manner contemplated by this act. He may be considered as notified that a street was intended to be built over his ground ; and all that he could infer from this was, that so much of his land as the street would pass over would be taken for this purpose, and that he would receive indemnity for it in the usual way ; and that any opposition to it would be unavailing. He certainly could never have understood that it was intended to make him a member of the corporation without his consent. There is, therefore, no evidence even of a tacit consent before the passing of the act; and his conduct, after it passed, amounts to a direct disavowal of all the doings of the corporation, as they respected him or his property.

Upon the whole, therefore, we are of opinion that the act under which the plaintiff sets up his title could not bind Marshall without his assent; that he, having uniformly, whenever opportunity occurred, signified his dissent, is not a member of the corporation it created, was not liable to their assessments, and therefore that the sale of his land was without authority of law, and is void. [ * 279 J * According to the agreement of the parties, therefore, the plaintiff must become nonsuit, and judgment be given for costs to the defendant.

It having been said in argument that the acts relative to fencing common fields, and the act providing for the appointment of com missioners of common sewers, are within the principle of this act, it is proper to observe that we do not consider this decision as involv ing principles which militate with the provisions oí those acts.

Those are public acts, promotive of general convenience, and operating equally upon all citizens whose property is intended to be secured or improved by them.

This is a private act, obtained at the solicitation of individuals, for their emolument or advantage.

The act relative to common fields, also, is predicated upoi. the assent of all who are to be affected by it; and that which provides for the appointment of commissioners of sewers gives an eventual trial by jury of all questions arising under it. These circumstances so materially vary those laws from the act under consideration, that our decisions upon the latter can by no means be considered as questioning the validity of the former.

These observations are made to prevent any opinion prejudicial to the authority of those laws, from an apprehension that as, in the argument, they have been considered analogous to the one on which we have now determined, an unnecessary alarm respecting them may spread in the community.

Plaintiff nonsuit. 
      
      
         Sed vide Beekman vs. S. & S. Railroad Co. 3 Paige, 45.
     
      
      
        Roll’s Rep. 224.
     
      
      
         Hampshire vs. Franklin, 16 Mass. Rep. 76. — 1 Kent, Comm. 459, 2d ed. — 2 Dwarris on Stat. 635.
     