Dearborn v. Ames

Shaw, C. J.

Two questions arise upon this petition : 1. Whether, by force of the Si. of 1856, c. 284, the jurisdiction previously given by law to commissioners of insolvency, in cases of insolvent corporations, was in terms, or by necessary implication, transferred to and vested in the courts of insolvency thereby established. 2. If it was so transferred, whether that act itself is constitutional and valid, and has the force of law.

1. Upon the first question,' the court are of opinion, that the cases of insolvent corporations, provided for by the statute of 1851, were intended by the statute of 1856 to be vested in the courts of insolvency, thereby established.

The object of the statute of 1856 seems to have been to introduce a system for the administration of this department of the law of debtor and creditors, somewhat more formal and specific, more symmetrical and conformable to the ordinary course of proceedings in courts of justice, than that which previously existed; and all the reasons which would appear to render such a change useful and beneficial in regard to the settlement and distribution of the estates of insolvent individuals, would apply with equal, if not greater, force to insolvent corporations, where large and complicated interests are often involved, and numerous persons, debtors and creditors, deeply interested in the proceedings. But in order to see whether i was included in terms, or by necessary implication, we must look to the act itself, and the state of the law as it then stood

It will be perceived that .this act was passed about five years after the act of 1851, embracing corporations in the insolvency system of the state, by which last act the jurisdiction in regard to corporations was vested in the same class of officers, who then had jurisdiction in case of individual insolvents. The modes of commencing proceedings are alike, being in certain cases voluntary on the part of debtors, and commenced by them, and in other cases adverse, and commenced by the creditors. The title of the statute of 1856 is, “ An act in addition to the several acts for the relief of insolvent debtors, and the more equal distribution of their effects.” When one act is intended to be a supplement or appendix to a particular previous act, the practice, we believe, is, to cite the previous act, to which it is intended as an addition, literally by its title ; and this is often designated by marks of quotation. Here is no such citation of title or marks of quotation; but it refers to acts described rather than named, and described by the subject matter to which they relate, to wit, “ the relief of insolvent debtors and the more equal distribution of their effects.”

In general, the title of an act is not of itself much relied upon in the exposition of the statute itself. But in the present case, the same terms are used, in § 2, conferring jurisdiction on the courts of insolvency, thereby created, and also in the repealing clause. That section declares, that “ said judges shall have all the jurisdiction, power and authority that commissioners of insolvency now have and exercise, under and by virtue of the several acts to which this is in addition; and all the provisions in said acts contained shall apply in like manner to said judges respectively, as they apply to judges of probate, masters in chancery, and commissioners of insolvency, except so far as said provisions, or any of them, may be by this act modified or repealed.”

In this clause, the words “ the several acts to which this is in addition,” are somewhat equivocal, and if there were any part or clause, showing an intent to limit its operation to the case of insolvent individuals, then the words in question might be so limited. But in the absence of any such limitation, we think it more consonant with the intention of the legislature, not to constrae these words to mean merely “ the several acts for the relief of insolvent debtors, and the more equal distribution of their effects.” All the provisions of this act are as well adapted to meet all the requisitions in cases of insolvent corporations, as of living insolvent individuals. The commencement, conduct and close of insolvent proceedings are, we believe, the same in both cases, with this exception, that no discharge is granted to cor porations as in case of individuals. But this is not a difference which would indicate the propriety of any difference of jurisdiction ; on the contrary, if they are within the act, then the same provisions of law, which before applied to judges of probate, masters in chancery, or commissioners, shall apply to the courts of insolvency. The term “ insolvent debtors,” without restraint or qualification, must naturally be understood to include corporations, whether deemed a body politic constituting a person in law, or an aggregate term, embracing the individuals of which it is composed. Why the act of 1851 did not provide for the discharge of the debts of corporations, does not distinctly appear. One reason may be that the very result of insolvent proceedings would be either to pay their debts in full, and so render a discharge unnecessary, or wind up their concerns, and in effect put an end to their existence.

At the time this act was passed, that of 1851 had been in force several years, entitled, “ An act to secure the equal distribution of the property of insolvent corporations among their creditors.” Many of the provisions of that act are identical with the provisions of the insolvent laws in force when it passed, with particular provisions interspersed, adapted specially to the condition of corporations. Although it is not expressed in the title to be an act for the relief of corporations, perhaps because no discharge was provided for, yet it is well understood that the mere title to an act seldom embraces the whole object of an act, but it is exact enough, if it represents the leading purpose of the act, and is sufficient to identify it. The great and leading pur pose of all the insolvent acts is to effect an equal distribution of the property of insolvent debtors, whether individuals or corporations. The description of the previous acts might uudoubtedlv have been more full and exact; and upon the literal interpretation of the statute, the question is not free from doubt. But the question here is, whether, by the terms which they have used, the legislature by fair intendment have included insolvent corporations ; and we think they have. They were manifestly following out a system of policy, begun in 1838, and extended by various subsequent acts, that of securing an equal distribution of estates, when they were insolvent and insufficient to pay all creditors in full; and there is no clause or phrase in this last act, indicating an intention to make any distinction between insolvent individuals and insolvent corporations. The words, in the title of this act, to which the subsequent clauses in the act refer, to wit, “in addition to the several acts for the relief of insolvent debtors, and the more equal distribution of their effects,” are broad enough to embrace all existing statutes on those subjects, if so intended.

The repealing clause, in the forty-first section of the act, does not, perhaps, add much weight to the conclusion we adopt, though wholly consistent with it. It repeals “ so much of the several acts to which this is in addition,” (using the same language as before,) “ as gives jurisdiction to judges of probate, masters in chancery and commissioners of insolvency, and all other provisions in said several acts inconsistent with the provisions of this act.” It brings us back to the same question, what were intended as the “ several acts to which this is in addition,” thus referring to them by their subjects, and not by their titles. Considering, as we do, that the legislature had in contemplation all the then existing laws of the Commonwealth, providing for the settlement of the estates of living insolvents, in a mode equitable and beneficial to all parties, intended to embrace all acts then in force, having this object in view, including the statute of 1851, making numerous and detailed provisions for the sequestration and distribution of the estates of insolvent corporations, both on their own application, and, in certain cases, on the application of their creditors, it is quite impossible to believe, that the legislature intended to exclude them ; and as the literal interpretation is not inconsistent with such intent, we must regard it as the true interpretation, and hold that corporations were included.

2. The next question is, whether the act providing for the establishment of courts of insolvency, to exercise the same jurisdiction as that before exercised by commissioners of insolvency, with some alterations, is constitutional.

The doubt arises from this consideration; that, before the pass ing in June 1856 of the act constituting courts of insolvency, an amendment of the Constitution had been proposed and adopted by the legislature, and ratified in May 1855 by the people, in the manner provided for the amendment of the Constitution, (being now the nineteenth article of the amendments,) directing the legislature to prescribe, by general law, for the election of sheriffs, registers of probate, commissioners of insolvency, and clerks of the courts, by the people of the several counties, and that district attorneys should be chosen by the people of the several districts, for such term of office as the legislature should prescribe. The legislature had also passed an act on the 10th of May 1856, directing “ commissioners of insolvency,” with the other officers named, to be chosen by the people, to hold their offices three years. Si. 1856, c. 173.

The argument is, that, as the Constitution had provided for the election of commissioners of insolvency, the act transferring their jurisdiction to courts of record, to be exercised by another class of officers, to be appointed by the governor and council, in the manner in which judicial officers in the original Constitution are required to be appointed, is in effect a mode of declaring that, under another title or description, commissioners of insolvency shall be appointed by the governor and council, and so is repugnant to the Constitution as thus amended. But we think this is not the character of the act in question.

By the original Constitution, c. 1, § 1, art. 3, “ the general court shall forever have full power and authority to create and constitute judicatories and courts of record, or other courts, giving them jurisdiction over all matters criminal or civil.”

The next provision in the Constitution, art. 4, gives full powers to the general court, to make all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions; and to name and settle annually, or provide by fixed laws for the naming and settling of all civil officers within the said commonwealth, the election and constitution of whom are not hereafter in this form of government otherwise provided for; and to set forth the several duties, power and limits of the several civil and military officers of this commonwealth.

These appear to us to be two distinct and separate powers, having distinct objects, each of which may have its full, fair and legitimate exercise, although such exercise of the one may in some respects interfere with arrangements made under the other. The power to erect courts and judicatories, coupled with an authority to define and limit the powers and duties of all civil officers, gives power to the legislature to fix and limit the jurisdiction of all such courts and judicatories. And we think it can be no just objection to the exercise of one of these powers thus expressly granted, that it may have the effect to transfer power, authority or jurisdiction from one class of judges or officers whose appointment in a particular mode is provided for in the Constitution, to another class whose appointment is left by the Constitution to be provided by law, or vice versa, when, in the judgment of the legislature, such change and distribution of powers will subserve the welfare of the public. '

Under this power to erect judicatories, we think it has been the practice of the legislature, from the adoption of the Constitution, to erect and establish new judicatories, other than the supreme judicial court, to transfer jurisdiction from one court to another, in part or in whole, and to enlarge, restrain and regulate the jurisdiction of all courts. The changes which have taken place by law in the court of sessions are signal instances. Originally composed of all the justices of peace of the county, and invested with a considerable criminal jurisdiction; then composed of a small number of judges; afterwards its judicial powers transferred to the court of common pleas, and its administrative powers, first to commissioners of highways, then to county commissioners; and ultimately the entire abolition of the court of sessions itself. Similar changes have taken place, both in the constitution and in the jurisdiction of the courts of common pleas, which are familiar to all those conversant with the legislation and jurisprudence of the Commonwealth. Yet, though the effect was to transfer jurisdiction from judges, the mode of whose appointment was directed by the Constitution, to officers otherwise appointed, in modes directed by law, we believe that those acts have never been considered as violations oi the Constitution.

So in regard to the other power of the legislature, to provide for the appointment of all civil officers, where not otherwise provided in the Constitution. When the Constitution requires that certain officers, designated by titles, whose duties and powers are either prescribed by statute, or, being common law officers, are defined and limited by the rules of the common law, and who exercise the powers and duties, implied by law from the titles of such officers, shall be appointed or chosen in a particular manner, it is certainly not competent for the legislature to provide that officers, thus designated by the titles of the offices they hold, shall be chosen or appointed in any other way. But if the legislature, under the power vested in them, and judging that some or all of the powers vested by law in one class of officers, designated by these titles, may be more beneficially exercised by another and distinct class of officers, we think it is competent for the legislature to prescribe the mode in which such other class of offices shall be constituted.

Such an instance is found in case of the attorney general and solicitor general. These officers have powers and duties, prescribed and defined by the common law, and implied by their titles. The original Constitution provided that they should be appointed by the governor and council. But no solicitor general was appointed till twenty years after the adoption of the Consti tution. But when the increase of business, especially in Maine, then part of Massachusetts, required such an office, a solicitor general was appointed. Again, after the separation of Maine it was found, or supposed, that both officers were not necessary, and it was provided by law, that when either office should become vacant, the powers of both should be exercised by the occupant of the other. Afterwards, both officers were superseded, and the powers incident to both transferred to, and distributed amongst local officers, each executing like power with the attorney general, within specified limits. Now a provision is made, that the attorney general shall be chosen by the people, but no similar provision is made for a solicitor general. Constitution, amendment 17. We suppose, if the public exigencies should now require the reestablishment both of an attorney general and solicitor general, the former must be elected by the people, and the latter appointed by the governor and council, simply because the Constitution has thus directed that these officers, thus designated by their titles, must be so appointed. Such results would follow, not because the two offices differ in their nature, but because the Constitution, as amended, thus directs.

Take another illustration. When our Constitution was formed, the State had the entire control of the organization of the militia, though part of that power has been since transferred to congress. There is a provision that major generals shall be chosen by the concurrent vote of the two houses of the legislature. c. 2, § 1, art. 10. Now supposing that, in the progress of military science and practice, it should be found expedient to provide for the appointment of an officer of a higher grade, as lieutenant general, or field marshal; it would seem competent for the legislature to make such provision, and provide for the appointment of such officer, either by the legislature, by the governor and council, or by popular election, although most or all of the powers and functions of a major general would thus be transferred to another class of officers.

But there is another limitation upon the power of the legislature, in regard to appointments, where the officer to be appointed is not designated by an established title, but by a definite description of his functions. As, for instance, all judicial officers shall be appointed by the governor and council. Constitution c. 2, § 1, art. 9. It may be often difficult to ascertain, in particular instances, whether the office falls within the description, and whether the duties assigned to an officer make it a judicial office or not. But this point being settled, the provision of the Constitution is as imperative and obligatory, as when an office is designated by a well known title.

The reasonable and practical exposition of the Constitution, in this respect, seems to us to be this: that where an office is already existing, or afterwards to be created by law, if it comes within a designation of an office mentioned in the Constitution by name, or by any term strictly synonymous, it must be filled in the manner provided by the Constitution. So if it falls within a class definitely described, as “judicial officers,” the rule of the Constitution must be followed. But if the object of a statute is to establish a new judicatory, or a new arrangement of existing powers and duties of offices, created by such statute, either not designated in the Constitution by the title, or where such officer does not fall within a class specified in the Constitution by a definite description, it is competent for the legislature to provide the mode in which such officer shall be elected or appointed, although the effect and operation may be to transfer powers from officers elected under the provisions of the Constitution, to a class to be thus newly appointed.

As to this last point, the transfer of powers, perhaps an illustration may be drawn from the case of notaries public. They are a class of officers exercising a great variety of powers, some very indefinite, some of which are quasi judicial, and some merely executory. By the original Constitution, these officers were to be elected by both houses of the legislature in convention. Supposing, instead of changing the mode of appointment, by an alteration of the Constitution, which was done in 1820, the legislature had provided for transferring the quasi judicial powers of notaries public to certain designated courts of record; and those of an executory and miscellaneous character to mayors of cities, or justices of the peace—the object being to make a better provision for the exercise of the same functions—it appears to us that it would have been competent for the legislature to do so, although, when such officers, so designated by a title, were to be chosen, they must be chosen by the legislature.

Then, to consider this act in reference to these views of the constitutional power of the legislature, it appears to us that the object of the legislature was to provide for the more efficient administration of a large department of the law in civil matters, affecting deeply the rights of debtors and creditors of all classes— a department which has grown from small beginnings to be a great system. As a necessary incident, it transferred the greater part, if not the entire jurisdiction of commissioners of insolvency to a court of record, with powers somewhat enlarged, and different in their mode of administration. It provided for a permanent judge with a fixed salary, to be appointed in the manner prescribed by the Constitution for the appointment of judicial officers, and to hold his office upon the like tenure ; and provided for a permanent clerk to keep and authenticate records. The same powers and jurisdiction had been changed by law, first vested in judges of probate, the mode of appointment of whom was fixed by the Constitution, and masters in chancery, whose offices were created by law, and held for a limited term ; then transferred to commissioners of insolvency, first appointed by the governor and council for a term of years, but afterwards, by an amendment of the Constitution, directed to be chosen by the people.

But this amendment of the Constitution did not confer, limit >r define the powers or duties of commissioners of insolvency; these were fixed and established by previous laws, then well known and understood. It provided that this class of officers, when to be appointed at all, should be elected by the people. It designated them by a well known title. But the powers which had previously been defined and conferred by law, could, we think, be modified, enlarged or diminished by law, notwithstanding a change in the mode of appointment.

It was suggested, in the argument, that the words “ commissioners of insolvency ” should be construed as words of description, and not as words of title, and so included any officers who may be charged with the administration of this department of this law. But it appears to us quite impossible so to construe them. The term had acquired a well known and definite meaning ; the law had provided for the appointment of officers of that title; officers had been appointed and commissioned with that title ; and the words seem to us to designate a title as much as that of justice of the peace, or notary public. The amendment of the Constitution did not, under the title of “ commissioners of insolvency,” intend any and all officers, who might in any mode be invested with the administration of the laws relative to insolvents, however they might be altered or modified; but to provide for a class of officers, designated by a familiar title, like “ attorney general,” “ solicitor general,” “ district attorney,” “ county commissioner,” and the like.

We have already alluded to the consideration, that, although the act transfers the jurisdiction from commissioners of insolvency to courts of insolvency, yet it is with some additional powers and functions. The judge is invested with a more permanent tenure, holding a court of record, (a higher grade than that before held by a commissioner,) with a compensation apparently designed to enable him to devote all his time and attention to the duties of such court. He has exclusive jurisdiction through the whole county, whereas several commissioners might before be appointed in each county, with concurrent jurisdiction. He is invested with larger powers, he may award costs in certain cases, and issue execution therefor, in like manner as practised in courts of common law. Taking all the provisions of the statute together, it seems designed to render the administration of this important department of the law more orderly and systematic, and more analogous to the regular course of legal proceedings in other tribunals.

We think the recent amendment of the Constitution, from the time of its ratification, is to be regarded as an integral part of the frame of government, and is to have the same force and effect as if it were a part of the original Constitution, and no greater, except that it abrogates all constitutional provisions inconsistent with it. So regarding it, we think it has been the frequent practice under the Constitution, to alter, change and transfer the duties and powers of tribunals and officers, judicial and others, although their appointment was provided for in terms by the Constitution, and, although at the time of their appointment, and by force of such appointment, they were vested with powers and jurisdiction well defined, known and understood; and we believe that such jurisdiction has been altered, modified and transferred from time to time as the exigencies of the times and the public interests have seemed to the legislature to require, without being supposed to be in violation of the Constitution. In some cases, especially that of the attorney general and solicitor general, the offices themselves have been modified, abolished and reinstated. This practice under the Constitution affords some evidence of the contemporaneous and early construction in regard to the powers of the legislature, put upon the Constitution by its founders and early expounders.

On the whole, the court are of opinion that the statute in question was constitutional; that, at the time of the petition of the Boston Steam Engine Company to the respondent, he rightly took cognizance thereof as a judge of the court of insolvency, for the county of Suffolk; that he had no authority to take cognizance thereof in his capacity of commissioner of insolvency; and that the proceedings before him were regular.

Petition dismissed.

Un the day of the delivery of the above opinion, the justices made the following answer to an order from the senate ■ of the 16th of February last:

“ To the Honorable the Senate of Massachusetts: The undersigned, justices of the supreme judicial court, in answer to the question proposed to them by the senate, by their order passed on the 16th February last, respectfully submit the following opinion:

“ The question is thus stated: Is that portion of the act of 1856, c. 284, for the relief of insolvent debtors and the more equal distribution of their effects, which takes jurisdiction of that subject from commissioners and gives it to the court and judges, as therein provided, constitutional ?

“ As preliminary to the answer, we would repeat the obvious remark, so often made, that all reasonable presumptions are to be made in favor of an act, passed under all the forms of legislation ; and that no such act can be judicially declared invalid, as having exceeded the powers of the legislature, unless it appears manifestly repugnant to the express provisions or the established principles of the Constitution.

“ Upon consideration of the question proposed, the undersigned are of opinion that the act of 1856, c. 284, providing for the establishment of courts of record in each county, to be held by judges, to be appointed in the manner prescribed in the Constitution for the appointment of judicial officers, and to hold their offices by a like tenure, each to hold sessions in his own county, with a permanent clerk, and transferring to those courts the duties, powers and jurisdiction in matters of insolvency previously exercised by commissioners of insolvency, with such additions and modifications, as are provided for in said act, was one which it was competent for the legislature to pass, and was not unconstitutional.

Boston, 26th March 1857. Lemuel Shaw,

Charles A. Dewey,

Theron Metcalf,

George T. Bigelow,

Pliny Merrick.

“ I assent to the opinion expressed by the other justices, upon the single ground that the act is not so clearly unconstitutional, its invalidity so free from reasonable doubt, as to make it the duty of the judicial department, in view of the. vast interests involved in the result, to declare it void.

Benjamin F. Thomas.”