How Progressivism Got Its Foothold In Maine In 1951

This is an preview chapter of my book Public Private relationships and The New Owners of The Means of Production

Separation of Corporation and State

 In the 1920’s fascism became the governing system in Italy, not by constitutional amendments but by an ordinary process of legislation. There has been a similar process undergoing in Maine since the late seventies. The first stirrings of these changes date back even earlier. In this chapter we see how a 1951 Opinion of the Justices guts the core out of Article IV Part Third Sections 13 and 14 of the Maine Constitution but first, we shall go back to 1876 when Article IV Part Third Sections 13 and 14 were included in Maine’s Constitution.

Governor Seldon Conner had just taken office. His inaugural address passionately railed against special interests and abuses of governmental powers which Article Iv Part Third Sections 13 and 14 of the Maine Constitution were intended to cure,

Article IV.

Part Third.

Legislative Power.

Section 13. Special legislation. The Legislature shall, from time to time, provide, as far as practicable, by general laws, for all matters usually appertaining to special or private legislation.

Section 14. Corporations, formed under general laws. Corporations shall be formed under general laws, and shall not be created by special Acts of the Legislature, except for municipal purposes, and in cases where the objects of the corporation cannot otherwise be attained; and, however formed, they shall forever be subject to the general laws of the State.

In 1951 an Opinion of the Justices used Governor Seldon Connor’s Inaugural Address to determine the intent of the Article IV Part Third Sections 13 and 14 of the Maine Constitution. The Justices cherry picked the Governor’s speech in support of an interpretation which reads like a foregone conclusion ignoring many points made by Governor Connor. The key difference between what is in the Governor’s speech and what is found in the text of the Constitution is a reference to existing laws, the point upon which the conclusion drawn by the Judges depends and without which a substantively different meaning prevails.

Governor Seldon Connor's Speech

Section thirteen presents a discretionary field of action which your own honor will impel you to occupy to the fullest extent.'The title of 'Special and Private Laws,' which includes so large a portion of the laws of former Legislatures, is an obnoxious one, conveying suggestions of privilege, favoritism and monopoly; though happily these evils have not in fact, stained the character of our legislation, they should not be suffered to have, even in the form of our laws, any grounds of suspicion that can be removed. Other weighty objections to special laws for private benefit are, that they are obtained at the public expense, and in their passage distract the attention of legislators from matters of public interest. The opportunity is now afforded, and the duty enjoined upon you, by the amendment, to restrict the necessity for such laws to the narrowest possible limits. An analysis and classification of the private and special laws upon the statute books, will inform you of the objects or which it is desirable to provide by general laws, if practicable. 'Many objects have been hitherto specially legislated upon although they were amply provided for by general laws. I have distinguished authority for the statement that sixty or more of the corporations created by a special act for each, by the last Legislature, could have been created and organized under general laws. The reason why the general laws have not been resorted to to a greater extent, is not, so far as I am informed, to be found in any insufficiency or defect of those laws, but in the greater ease and simplicity of the method of application to the Legislature and in the fancied higher sanction of an authority proceeding directly from it. Section fourteen, relating to corporations is compressive and peremptory.. It relates to all corporations, except only those for municipal purposes. It clearly prohibits their creation by special acts if the objects desired can be secured under existing general laws.' From Governor Seldon Conner's Inaugural Address 1876 – I ¹ (emphasis mine)

The 1951 Opinion of the Justices addressed the Legislature's constitutional authority to incorporate the Gardiner Finance Co pursuant to Article IV Part Third Section 14 . ^2 3

Governor Connor’s speech is informative to reasons why Article IV Part Third Sections 13 and 14 were added to the Maine Constitution, but is not the primary source of constitutional interpretation. The use of a governor’s speech as the primary measure of constitutional interpretation is equivalent to transferring the authority of interpreting the law to the administrative branch of government .

The reference to exiting laws is found only in the Governor’s speech and not in the text of the Constitution which uses the verb “shall’ to indicate the future tense.

The Opinion of the Justices declare Governor Connors speech to mean that Sections 13 & 14 authorizes the Legislature to determine the field or fields in which corporations should be formed under general laws, The justices should be using the words of the Constitution to substantiate their opinions but there is no one to object when there is no one representing the people vs the Maine Legislature and so Governor Connor’s speech is used because it works for what is wanted to be done by the Legislature and the Justices, which is to t make it optional whether the Legislature chooses to create a general law to serve a specific field.

The Opinion of the Justices uses the word “authorize” when it is more accurate to say “requires” or “instructs”. The use of the word “authorizes” changes the intent of the amendment from limiting the powers of the Legislature to expanding upon legislative powers to include authority to interpret the law as the Legislature sees fit, and this in the case concerning a constitutional law governing the parameters of legislative powers.

There was only one party presenting their point of view before the Justices, the same party- the Legislature, which Article IV Part Third, Legislative Powers, Sections 13 & 14, limits the powers there of.

Opinion of the Justices, 68 Me. 582- ⁴

It cannot be doubted that the framers of Art. IV, Part Third, Sec. 14 intended that it should be construed as Governor Connor construed it, as authorizing the Legislature to determine the field or fields in which corporations should be 'formed under general laws,'

Article IV Part Third Section 13. Special legislation. states that “Corporations shall be formed under general laws, and shall not be created by special Acts of the Legislature, except for municipal purposes, and in cases where the objects of the corporation cannot otherwise be attained; and, however formed, they shall forever be subject to the general laws of the State.” While the 1951 Opinion of the Justices later concludes that there is no other way to interpret the meaning of Article IV Part Third Sections 13 & 14 than what they stated in their opinion, it is viable to interpret the intended meaning of Section 14 as if there is no general law covering the object of the corporation, the Legislature shall pass a general law applicable to any corporation having such an object. The constitutional role of the Legislature is to create general laws to cover specific fields. Section 14 is specifically written to prohibit the Legislature from chartering corporations except within “the narrowest possible limits” to quote Governor Connor.

The Governor’s speech lays emphasis on the fact that there already existed general laws under which 60 or more corporations which had then been chartered by special acts of legislation could have been formed. An examination of the Article IV Part Third Sections 13 clarifies that the Legislature shall from time to time provide general laws for all matters usually appertaining to special or private legislation. The Constitution does not limit the use of general laws to existing laws. ”Shall from time to time provide” is in the future tense. Instead the Constitution instructs the use of general laws with only two exceptions. Section 13 says the Legislature shall create general laws under which any corporation serving any object can be formed. Section 14 says that if there exist an object which cannot be accommodated by a general law, only then can the Legislature charter a corporation as a special act. Since the only other exception is for municipal purposes, it precludes corporations chartered by special acts of legislation for private regional and state purposes.

In the next conclusion drawn by the Justices the words written in the Constitution Section 13 are ignored as the Justices use Governor Connor’s words as a stand in for the text codified in the Constitutional amendment:

Opinion of the Justices, 68 Me. 582- continued
and that in the absence of an existing general law under which the objects of the corporation can be attained the Legislature may create such corporation by special act. (emphasis mine)

The two thoughts, one immediately following the other, produces a meaning inconsistent with the meaningful context of Governor Connor speech as well as the Maine Constitution. The Justices construe the meaning of the amendment as intending ” Art. IV, Part Third, Sec. 14... authorizes the Legislature to write a general law, but the Legislature may at its own discretion charter a corporation by special act of legislation instead.”

The paragraph then concludes with these words:

Opinion of the Justices, 68 Me. 582- continued

Neither can it be doubted that it has been construed in conformity with that view for more than three-quarters of a century. In this construction we heartily concur for no other meaning can be fairly given to the language used in the amendment.

“Since the adoption of these sections, the successive Legislatures of this State, as evidenced by their action, have consistently interpreted Section 14 as permitting the creation of corporations by special charter whenever the objects thereof could not be attained under existing general laws.”

In Governor Connor speech, he states that the intention is "to restrict the necessity for such laws to the narrowest possible limits” and tells of “sixty or more of the corporations created by a special act for each, by the last Legislature, could have been created and organized under general laws.” and that “The title of 'Special and Private Laws,' which includes so large a portion of the laws of former Legislatures, is an obnoxious one, conveying suggestions of privilege, favoritism and monopoly” Governor Connor uses established practice as a model for what not to do and an explanation as to why Article IV Part Third Sections 13 and 14 was needed in the Maine Constitution. Conversely, the Opinion of the Justices repeatedly use the word “existing” found only in Governor Connor’s speech and absent in fact or implication in the text of the Constitution as the basis of their interpretation of constitutional intent.

An Unconstitutional Precedence

The Justices use established legislative practice as a legal precedence establishing the meaning of the Constitution. Another paragraph begins by saying “established principles of constitutional construction require that the views of the framers be given great consideration”. In the second half of the sentence the Justices declare that whenever the Constitution is ambiguous, then the long course of practice can be taken as established law.

Ambiguity is cited as the reason for using entrenched practice as the basis of constitutional interpretation but the ambiguity is of the Justices own making. In his inaugural speech, Governor Connor acknowledges the exception for municipal purposes but the Opinion of the Justices occludes the exception for municipal purposes and treats the second exception, an object which cannot be otherwise attained, as the only exception to the prohibition against legislatively chartered corporations. When the exception for municipal purposes is taken into consideration, it clarifies the intention to prohibit the Legislature from chartering corporations for state, regional and private purposes. If that were not the case, there would be no need to make an exception for municipal purposes, in fact no need for section 14 at all. The Constitutional intent is specific that private corporations are to be incorporated under general law. Municipal corporations are chartered by the Legislature and government corporations are forbidden unless the object of the corporation cannot be achieved another way.

Governor Connor cites the long existing practices as the purposeful reason for the constitutional amendment. Contrarily, the Justices conclude that if a practice is engaged in for a length of time after the amendment was added to the Maine Constitution, that practice by those whose very power the constitutional amendment is intended to limit, makes said practice constitutional, discounting that the legal authority of the Constitution is derived from the consent of the governed.

The object in question is to incorporate the Gardiner Finance Company. The opinion states that “its objects, as declared in Legislature Document No. 383, cannot be attained by organization under any existing general law”. Document No 383 is a charter for a private finance company and does not contain an argument as to why the Gardiner Finance Corporation cannot be chartered under general law and yet the Opinion of the Justices states that it cannot be done without any further ado although this is the condition that the Constitution says must be satisfied.

Opinion Of The Justices 1951 continued ⁵

It being manifest that your inquiry relates particularly to the proposed incorporation of

Guardian Finance Co., and [146 Me. 324] that its objects, as declared in Legislative Document No. 383, cannot be attained by organization under any existing general law, we supplement the foregoing by saying that said corporation may be chartered by special act.

Dated at Augusta, Maine, this eighth day of May, 1951.

Respectfully submitted:

HAROLD H. MURCHIE, SIDNEY ST. F. THAXTER, RAYMOND FELLOWS, EDWARD F.MERRILL, WILLIAM B. NULTY, ROBERT B. WILLIAMSON

The Rise Of Progressivism

According to the Opinion of the Justices in 1951, Article IV, Part Third sections 13 and 14 was ignored by the Maine Legislature since the day the amendment was included in the Maine Constitution, when it is written “Since the adoption of these sections, the successive Legislatures of this State, as evidenced by their action, have consistently interpreted Section 14 as permitting the creation of corporations by special charter whenever the objects thereof could not be attained under existing general laws.” The Opinion of the Justices of 1951 rules that the Constitution can be over ruled by contrary practice and disregard for the oaths of offices taken by our public servants. When the consent of the governed as codified in the Maine Constitution has no standing, there is no Rule of Law governing Maine law makers.

In The Maine Constitution, -a Reference Manual, Marshal J Tinkle writes:

"In the late nineteenth centuries, the Law Court evinced more concern for economic rights, and under the "takings" clause and taxing power clause struck down legislation that promoted private industry at the expense of property owners or tax payers. This approach harmonized with the national trend, but the Maine court went further in restricting state as the Law Court has increasingly deferred to legislation in reviewing a wide variety of regulatory schemes and funding projects. In rationalizing this turnabout, the Justices have explained that they had "interpreted our Constitution as a live and flexible instrument fully capable of meeting and serving the imperative needs of society in a changing world" ( Opinion of the Justices, 231 A. 2D 431, 434 {ME 1967})."1

The concept of the Constitution as a living and flexible instrument is the philosophy of progressivism. An Opinion of the Justices is respected but is not as robust as a hearing in a court of law where there is more than one faction presenting an argument before the Justices. In the case of the 1951 Opinion of the Justices, the court ruled on a constitutional amendment which restricts the authority of the Legislature but there is no other party but the Legislature represented before the Justices. The Legislature cannot be representative of the governed in a case where in the issue is concerned with restrictions which the governed have placed over the Legislature.

1 Opinion of the Justices, 68 Me. 582 at page 585

2 H.P, 641, House of Representatives 1951

3 Opinion of the Justices, 68 Me. 582 at page 585

4 State v. Longley, 119 Me. 535 at page 540, 112 A. 260, 262.

5 State v. Longley, 119 Me. 535 at page 540, 112 A. 260, 262.