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It has also been decided, that a grant by a state before the revolution, is as much to be protected as a grant since. * But the case of Terrett vs. Taylor, before cited, is of all others most pertinent to the present argument. Indeed the judgment of the court in that case seems to leave little to be argued or decided in this. “A private corporation," say the court, “ created by the legislature, may lose its franchises by a misuser or a nonuser of them; and they may be resumed by the government under a judicial judgment upon a quo warranto to ascertain and enforce the forfeiture. This is the common law of the land, and is a tacit condition annexed to the creation of every such corporation. Upon a change of government, too, it may be admitted that such exclusive privileges attached to a private corporation as are inconsistent with the new government, may be abolished. In respect, also, to public corporations which exist only for public purposes, such as counties, towns, cities, &c. the legislature may, under proper limitations, have a right to change, modify, enlarge or restrain them, securing, however, the property for the uses of those for whom and at whose expense it was originally purchased. But that the legislature can repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal can vest the property of such corporations exclusively in the state, or dispose of the same to such purposes as they please, without the consent or default of the corporators, we are not prepared to admit; and we think ourselves standing upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and letter of the constitution of the United States, and upon the decisions of most respectable judicial tribunals, in resisting such a doctrine."
This court, then, does not admit the doctrine, that a legislature can repeal statutes creating private corporations. If it cannot repeal them altogether, of course it cannot repeal any part of them, or impair them, or essentially alter them without the consent of the corporators. If, therefore, it has been shown that this college is to be regarded as a private charity, this case is embraced within the very terms of that decision. A grant of coporate powers and privileges is as much a contract as a grant of land. What proves all charters of this sort to be contracts, is, that they must be accepted to give them force and effect. If they are not accepted they are void. And in the case of an existing corporation, if a new charter is given it, it may even accept part and reject the rest. In Rex vs. vice chancellor of Cambridge,t lord Mansfield says, “there is a vast deal of difference between a new charter granted to a new corporation (who must take it as it is given;) and a new charter given to a corporation already in being, and acting either under a former charter, or under prescriptive usage. The latter, a corporation already existing, are not obliged to accept the new charter in toto, and to receive either all or none of it: they may act partly under it, and partly under their old charter or prescription. The validity of these new charters must turn upon the acceptance of them." In the same case Mr. Justice Wilmot says, “It is the concurrence and
* New Jersey vs. Wilson. 7 Cranch 164. . + 3 Burr. 1656.
acceptance of the university that gives the force to the charter of the crown.” In the King vs. Passmore,* lord Kenyon observes: "some things are clear; when a corporation exists capable of discharging its functions, the crown cannot obtrude another charter upon them; they may either accept or reject it.”+
In all cases relative to charters, the acceptance of them is uniformly alleged in the pleadings. This shows the general understanding of the law, that they are grants, or contracts; and that parties are necessary to give them force and validity. In King vs. Dr. Askew.. it is said; “The crown cannot oblige a man to be a coporator, without his consent: he shall not be subject to the inconveniences of it, without accepting it and assenting to it. These terms, acceptance" and “assent,” are the very language of contract. In Ellis vs. Marshalls it was expressly adjudged that the naming of the defendant among others, in an act of incorporation, did not of itself make him a corporator; and that his assent was necessary to that end. The court speak of the act of incorporation as a grant, and observe;
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.” But Justice Buller, in King vs. Passmore, furnishes, if possible, a still more direct and explicit authority. Speaking of a corporation for government, he says: “I do not know how to reason on this point better than in the manner urged by one of the relator's counsel; who considered the grant of incorporation to be a compact between the crown and a certain number of the subjects, the latter of whom undertake, in consideration of the privileges which are bestowed, to exert themselves for the good government of the place.” This language applies, with peculiar propriety and force to the case before the court. It was in consequence of the privileges bestowed,” that Dr. Wheelock and his associates undertook to exert themselves for the instruction and education of youth in this college; and it was on the same consiúeration that the founder endowed it with his property.
And because charters of incorporation are of the nature of contracts, they cannot be altered or varied but by consent of the original parties. If a charter be granted by the king, it may be altered by a new charter granted by the king, and accepted by the corporators. But if the first charter be granted by parliament, the consent of parliament must be obtained to any alteration. In King vs. Miller,|| lord Kenyon says; “Where a corporation takes its rise from the king's charter, the king by granting, and the corporation by accepting another charter, may alter it, because it is done with the consent of all the parties who are competent to consent to the alteration."'T
There are, in this case, all the essential constituent parts of a contract. There is something to be contracted about, there are parties, and there are plain terms in which the agreement of the parties, on the subject of the contract, is expressed. There are mutual considerations and inducements. The charter recites, that the founder, on his part, has agreed to establish his seminary, in
* 3 Term Rep. 240. Vide also 1 Kyd on Cor. 65. 14 Burt, 2200. $2 Mass. Rep. 269. 11 6 Term Rep. 277. Vide also 2 Brown, Ch. Rep. 662. Ex parte, Bolton school.
legislature in this country is able, and may the time never come when it shall be able, to apply to itself the memorable expression of a Roman pontiff; “ Licet hoc DE JURE non possumus, volumus tamen DE PLENITUDINE POTESTATIS.”
The case before the court is not of ordinary importance, nor of every day occurrence. It affects not this college only, but every college, and all the literary institutions of the country. They have flourished, hitherto, and have become in a high degree respectable and useful to the community. They have all a common principle of existence, the inviolability of their charters. It will be a dangerous, a most dangerous experiment, to hold these institutions subject to the rise and fall of popular parties, and the fluctuations of political opinions. If the franchise may be at any time taken away, or impaired, the property also may be taken away, or its use perverted. Benefactors will have no certainty of effecting the object of their bounty; and learned men will be deterred from devoting themselves to the service of such institutions, from the precarious title of their offices. Colleges and halls will be deserted by all better spirits, and become a theatre for the contention of politics. Party and faction will be cherished in the places consecrated to piety and learning. These consequences are neither remote nor possible only. They are certain and immediate.
When the court in North Carolina declared the law of the state, which repealed a grant to its university, unconstitutional and void, the legislature had the candor and the wisdom to repeal the law. This example, so honorable to the state which exhibited it, is most fit to be followed on this occasion. And there is good reason to hope, that a state, which has hitherto been so much distinguished for temperate councils, cautious legislation, and regard to law, will not fail to adopt a course, which will accord with her highest and best interest, and in no small degree elevate her reputation.
It was for many and obvious reasons most anxiously desired, that the question of the power of the legislature over this charter should have been finally decided in the state court. An earnest hope was entertained that the judges of that court might have viewed the case in the light favorable to the rights of the trustees. That hope has failed. It is here, that those rights are now to be maintained, or they are prostrated forever. Omnia alia perfugia bonorum, subsidia, consilia, auxilia, jura ceciderunt. Quem enim alium appellem? quem obtester? quem implorem? Nisi hoc loco, nisi apud vos, nisi per vos, judices, salutem nostram, quae spe exigua extremaque pendet, tenuerimus ; nihil est præterea quo confugere possimus.