Maine's Fundamental and Historical Political Battlefield: State Control Versus Local Sovereignty

Chales S Colgan is Associate Director, Maine Center for Business and Economic Research, Economic Development Administration,  University Center, Chair, CPD Program and Professor of Public Policy & Management, Muskie School of Public Service

In an email exchange   Mr Colgan had this to say:

"Incidentally, the constitutional provision you mention was enacted in the wake of the railroad failures in the 1830s and was intended to prohibit the state from creating for profit corporations.  The state has chartered a large number of non-profit corporations and there is no problem with those.  I worked on the creation of MDF in the 1970s so I am pretty sure of this."

MDF is The Maine Development Foundation. The "constitutional provision" I mentioned is  Article IV Part Third section 14 of the Maine State Constitution:

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.

Article IV , Part Third,Section 14 of the Maine State Constitution took effect in 1876, making the "wake" on the railroad failures one that lasted over 45 years.

The Maine State Constitution, A Reference Guide by Marshall J. Tinkle  speculates on the reason for Article IV, Part Third , Section 14:

 “The purpose of thus reserving the power to regulate corporations was probably to avoid the immunization of corporations under Trustees of Dartmouth College V. Woodard, 17 US ( $ Wheat.) 518[1819], holding that a corporate charter was a contract protected by the prohibition on state impairment of the obligation of contracts."

Trustees of Dartmouth College V. Woodard involved an attempt by the New Hampshire legislature to force the college to become a public institution and thereby place the ability to appoint trustees in the hands of the governor. Thus it involved private rights vs state authority and local governance vs state governance.


In 1876, Maine was only 56 years old, 56 years from the time when our ideological principals were formulated into a constitution, far too soon for the constitution to be considered an out-modded dusty only piece of paper. 1876 was 29 years since the publication of the Communist Manifesto in 1847. Communism was the most influential political ideology to emerge since that embodied in the United States Constitution.


In "The Resurgence of State Constitutional Law",  Maine Bar Bulleton 18, no 257 ( November 1984) Marshall J. Tinkle says this about the constitution:

It is the highest law of our state, yet it is sometimes esteemed the lowest. It is routinely cited, then routinely forgotten. It is our birthright, which has been sold for a bowl of federal porridge.

Article IV, Part Third , Section 14, took effect in 1876. It provides an exception only for “municipal purposes”. It does not provide an exception for non-profit purposes. The section is written in plain spoken language. If the intent was for the prohibition to apply only to for-profit corporations, that  would have be clarified by including  an exception for non-profit purposes, but that exception is not  in the constitutional amendment.

Article IV Part Third, Sections 13 and 14 is written with clearly spoken economy in language intended to be generally accessible to even the most unsophisticated reader. There is no mystery to it. Given the clear intent of the amendment, the exception for an object that cannot be achieved any other way was arguably included to cover  unforeseeable circumstances- to be used only for the rarest of exceptions.

"Conclusory statements are ones where an affiant states their belief but none of the underlying facts, thereby preventing an objective assessment of the affiant's belief {para 54} Pilkington, C

 If the merely asserting an "essential government function" as is the case in the plethora of corporations chartered by the Maine State legislature,  satisfies the exception of "an object which cannot be attained any other way" there is no purpose to section. The object that cannot be done any other way has been interpreted by the legislature to mean an object that government cannot do any other way. The constitution says an "object of the corporation" that cannot be achieved any other way. including that it cannot be achieved within the private sector - for if the object can be achieved within the private sector - it can be done in a way other than chartering a corporation that serves state purposes.

Judges, practitioners, legal scholars, and commentators are befuddled by, and struggling on multiple levels with, what to do abou Iqbal and its jurisprudential sibling Bell Atlantic Corp. v. Twombly. 3 As one of its major rules, Iqbal admonishes that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to satisfy the pleading standards in Rule 8 of the Federal Rules of Civil Procedure and to survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief may be granted.WHILE EFFUSIVE, “CONCLUSORY” IS STILLQUITE ELUSIVE: THE STORY OF A WORD,IQBAL, AND A PERPLEXING LEXICAL INQUIRYOF SUPREME IMPORTANCE

The most clearly articulated exception is for "municipal purposes", which conveys the intention to exclude corporations from being chartered for "state purposes" The plethora of corporations chartered by the legislature since,consistently include the conclusory statement  identifying the corporation as an "instrumentality of the state " - meaning it serves state purposes and that the corporation serves "an essential government function", begging the question to what form of government is it essential ?. There is no purpose to a prohibition against the legislature chartering corporations by special act of legislation, with an exception for municipal purposes, if the intent was to make room for the extensive network of state corporations which exists today - a network that has taken on the character of a government by tzars, seamlessly extended into a quasi governmental network that merges government with the private and non-profit sectors in such a way that it can be whatever it wants to be whenever it wants to be it.-and in which board members through out the "targeted sector"network, inevitably include a representative of The Maine Development Foundation.

....the organization of the Maine Constitution isolates and underscores the basics of constitutional theory with uncommon clarity. The framers also understood the importance of simplicity. They omitted nearly all that was not truly fundamental to a framework of government, nearly all that was better left to legislation. In short, the framers were not copyists; their handiwork displays a well-grounded graspe of guiding principals. The Maine Constitution- A Reference Guide, Marshall J. Tinkle, 1992

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

In 1951 the Justices weighed in with an opinion about Article IV Part Third Section 14 concerning the legislature's constitutional authority to incorporate the Gardiner Finance Co. (H.P ,641, House of Representatives 1951)

The Justices referred to the Inaugural Address of Governor Selden Connor.

'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 for 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 [146 Me. 323] 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.' ( emphasis mine)

The Justices used  the Inaugural Address of Governor Selden Connor. to determine the intent of parts 13 and 14  and arrived at an inexplicable conclusion. They claimed that Governor Connor construed Sections 13 & 14 as authorizing the Legislature to determine the field or fields in which corporations should be formed "under general laws'. Governor Connor's speech  empatheticaly stated that section 14 "relates to all corporations, except only those for municipal purposes" but the opinion of the Justices makes no mention of the exception for municipal purposes and mentions only  the exception for an object which cannot be achieved any other way.

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. Opinion of the Justices, 68 Me. 582- 1951

Section 14  prohibits the legislature from chartering corporations for state purposes. Governor Connor states that the intention is  "to restrict the necessity for such laws to the narrowest possible limits". The opinion of the Justices interprets the exception to the rule as if the purpose of the amendments is to grant unto the legislature special authority to interpret the constitution. The Justices use the past interpretations by the legislature as a legal precedence surely knowing that the legislature does not have the authority to interpret the law. One paragraph begins by saying “established principles of constitutional construction require that the views of the framers be given great consideration”  but it is empty rhetoric- 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. It was the long course of practice that created the need for sections 13 and 14 to be included in the Maine Constitution. In Governor Connors speech, used by the Justices as a measure of the intent, he says "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 “ but the Justices conclude that if a practice is engaged in for a length of time, that it should be legal, discounting that the legal authority of the Constitution is derived from the consent of the governed.

"Conclusory statements are ones where an affiant states their belief but none of the underlying facts, thereby preventing an objective assessment of the affiant's belief {para 54} Pilkington, C

The reason given for taking entrenched practice as the basis of their legal interpretation is that the Constitution is said to be ambiguous but that is only because the Justices omit the first exception to the rule from their considerations. When the exception for municipal purposes is taken into consideration. It becomes reasonably clear that the intention is to prohibit the legislature from chartering corporations for state 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. Private corporations are incorporated under general law. Municipal corporations are chartered by the legislature and  state corporations are forbidden unless the object of the corporation cannot be achieved another way.

The object 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” but there is no discussion about that claim, the exception which the constitution says must be satisfied. If there were no general laws in Maine in 1951, by which a finance company can be incorporated, then the obvious thing to do would be to create such a general law which would be consistent with sections 13 of Article IV Part Third of The Maine Constitution

Section 13.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.

The claim that Governor Conner construed section 13 as ” authorizing the Legislature to determine the field or fields in which corporations should be 'formed under general laws,” and then if the general law does not exist to charter a corporation is just another conclusory statement in an opinion almost entirely composed of conclusory statements.. If the general law does not exist the legislature has the authority to create the general law. That is the role of the legislature- to write the law. It is the role of the judicial branch to interpret the law. The Justices used Governor Connors speech as a measure of intent and then re-invented the speech to suit their opinion and in the process granted the legislature the authority to interpret the law. Such actions are the very definition of progressivism.

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

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,' 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. 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.

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

Article IV Part Third Section 14 forbids the legislature from chartering corporations for state purposes..- In Governor Connor's words " Section fourteen, relating to corporations,
is compressive and peremptory ."The words are specific. The state can charter corporations for “municipal purposes” only unless the object of the corporation cannot be achieved any other way. The justices opinion of 1951 concludes that the constitution can be over ruled by sheer practice.  The Opinion of the Justices, 68 Me. 582.

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

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,'( and just where did he say that?) 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. 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. 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 Opinion of the Justices, 68 Me. 582 gives reason and substance to the pattern of the Maine legislature to routinely ignore constitutional amendments and other court rulings in a very short time span after they are issued. If we take the word of the Opinion of the Justices in 1951, Article IV, Part Third , sections 13 and 14 were ignored by the Maine state legislature since the day the amendment was included in the Maine Constitution. Read these words again:

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. Opinion of the Justices, 68 Me. 582- 1951

The justices opinion of 1951 states that the constitution can be over ruled by sheer practice and ruthless disregard for the oaths of offices taken by our public servants. The consent of the governed as codified in the Maine Constitution has no standing, in other words, 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 that the Constitution is a living and flexible instrument is the philosophy of progressivism. 

The Opinion of the Justices has respected authority but is not as robust as hearing  in a court of law where there is more than one faction presenting an argument before the court. In the case of the 1951 Opinion of the Justices, the court rules on a constitutional amendment which restricts the authority of the legislature but there is only the legislature presenting the case for an opinion. The legislature cannot be representative of the governed in a case where in the issue is restrictions which the governed have constitutionalzed over the legislature.