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of the same character conferred by the same words. In England, too, Dartmouth College would certainly be regarded as a public corporation. It had the power to grant degrees, that is to say, had university privileges in addition to its other corporate franchises. A degree in our country is a bare honor; but in England it is a recognized grade in rank, giving the bearer an established precedence and many privileges. Until recently nobody could practise as an advocate at Doctor's Commons without first taking the degree of doctor of law at one of the universities. But beyond this, if the Universities of Oxford and Cambridge, to which express reference is made in the charter of Dartmouth College, are not public corporations, we hardly know what a public corporation is. Their chancellors and vice-chancellors have both civil and criminal jurisdiction within the universities; they are represented in Parliament, and their degrees give the receivers of them the electoral franchise. If Dartmouth College had been granted the right to send a member to the provincial legislature, could not the State have deprived it of this privilege? And yet it would haye been a privilege in no essential principle different from its other political franchises; namely, its ordinary corporate character and its power to confer degrees.1
Mr. Justice Story, who was seldom afraid of his logical conclusions, however much they might alarm other people, fully admitted that there could be contracts in respect of political offices within the prohibition of the Constitution. He says, —
"When the legislature makes a contract with a public officer, as in the case of a stipulated salary for his services, during a limited period, this, during the limited period, is just as much a contract, within the purview of the constitutional prohibition, as a like contract would be between two private citizens. Will it be contended that the legislature of a State can diminish the salary of a judge holding his office during good behavior? Such an authority has never yet been asserted to our knowledge." 3
This, as we have said before, has been settled the other way by Butler v. Pennsylvania. But the fact that Judge Story was inclined to carry the operation of the clause so far, shows what his reasoning led him to, and with how much caution his views must be received.
1 William and Mary College was, in provincial times, represented in the House of
Burgesses of Virginia. * 4 Wheat. 694.
If at the time that George the Third incorporated Dartmouth College, this right to alter it was recognized as existing in Parliament, then the charter must be held to have been granted upon this implied condition. This is a well established rule of law, in the construction not only of statutes and public grants, but of private grants and contracts. "What is implied," says Mr. Justice. Swayne, "in a statute, pleading, contract, or will, is as much a part of it as what is expressed."1 It is perfectly well settled, for instance, that if a man grants to another a parcel of land wholly surrounding other land of his own, he reserves, by implication against his own deed and warranty, a right of way to the landlocked estate.2 The expression of what is tacitly implied adds nothing to the force of the implied condition or reservation.« If, therefore, there was an implied right to amend or alter the charter of Dartmouth College, the amendatory charter violated no contract. This is too clear to require argument. Otherwise, all the express reservations of a right to amend charters would be inoperative.4
The argument put with so much force by Chief Justice Marshall that, from the importance of the perpetuity of benevolent, charitable, and educational institutions, it must be presumed that the framers of the Constitution did not intend to exclude them from the operation of the clause, seems to us to prove rather the reverse. Even if any charter were within the prohibition in the Constitution (which we deny), public charities and educational institutions are of such importance to the public, the rights of trustees to their control, although unquestionably recognized and protected by law within proper limits, are so entirely in the nature of a bare public trust without any beneficial interest, that we think it could not have been intended that the State should
1 United States v. Babbit, 1 Black, 61.
* 3 Kent's Com. 421, and cases cited; 1 Wms. Saund. 323,note (6); 4 Amer.Law Rer. 41, 42.
1 Expressio eorum quae lacile insunt nihil operatur. Broom's Max. (4th ed.) 642.
« Mr. Webster argued that the old corporation was actually abolished, and a new corporation created. This is immaterial; for if the government had any power over the charter, its power was plenary. But it is very clear that there was no abolition of the old corporation. That it would have preserved its identity, had the new charter been operative, cannot on the authorities be doubted. Attorney-General v. Kerr, 2 Bear. 420; Attorney-General v. Corporation of Leicester, 9 Ibid. 546; Doe d. Bristol Hospital v. Norton, 11 M. & W. 913; Attorney-General v. Corporation of Avon, 83 Bear. 67.
be debarred from all right to regulate them in the manner in which they could be regulated before the Constitution was enacted.
If our argument thus far has been sound, it is unnecessary to consider the other arguments in support of the decision of the case. But there are one or two minor arguments advanced by the Chief Justice which we think deserve particular notice. As we have already seen, he argued that, had Dr. Wheelock conducted the school, or had the trustees done so, without a charter, it would have been a private institution, and the tutors would have been private tutors, and the fact that they were employed in the education of youth, could not have converted them into public officers concerned in the administration of public duties, or have given the legislature a right to interfere in the management of the fund. Then he asks, How can the incorporation change the character of the institution? He further says, —
"Had Parliament immediately after the emanation of this charter, and the execution of those conveyances which followed it, annulled the instrument, so that the living donors would have witnessed the disappointment of their hopes, the perfidy of the transaction would have been universally acknowledged. Yet then, as now, the donors would have had no interest in the property; then, as now, those who might be students would have had no rights to be violated; then, as now, it might be said that the trustees, in whom the rights of all were combined, possessed no private individual, beneficial interest in the property confided to their protection. Yet the contract would at that time have been deemed sacred by all. What has since occurred to strip it of its inviolability? Circumstances have not changed it. In reason, in justice, and in law, it is now what it was in 1769."1
Surely all this is rather fallacious. As to Dr. Wheelock's hopes or expectations, they are a distinct matter from the promise actually given by the charter. What was that, is the question; not, what did he expect? Men who in 1860 lent gold, did not expect to have it repaid in a currency at a discount of fifty or sixty per cent. "There is a well recognized distinction," says Mr. Justice Strong, in delivering the judgment of the court in the Legal Tender Cases, "between the expectation of the parties to a contract, and the duties imposed by it. Were it not so, the ex
pectation of results would be always equivalent to a binding engagement that tbey should follow." 1 Of course there was a moral obligation imposed on the government not to resume any franchise that had been conferred, wantonly and without reason; but none, that the charter would not be altered or restricted, or even revoked, if the public interests required it. As to the nature of the school and the public character of its officers, these varied with every change in its condition. It was one thing, when a proprietary school owned by the master; still another thing, when governed by unincorporated trustees; still another, when incorporated. Every argument Judge Marshall advances to prove that the legislature ought not to control it, would be equally true of a corporation subject by the express terms of its charter to alteration at the will of the legislature. Yet such a charter would not have made the college a " public" corporation, and certainly would not have made its officers public officers. As long as Dr. Wheelock managed the school himself as a proprietary school, his rights over the whole property and over the whole institution were absolute. The property was his; he could have changed it to any other use he wished; he might have taken what scholars he liked, and refused all whom he disliked. On conveying the property to trustees without an act of incorporation, the school would become a public charity, and the trustees would be liable to control by a court of equity at the instance of the Attorney-General; nor could the funds be perverted from the objects of the trust, even if Dr. Wheelock wished them to be. When the act of incorporation was obtained, then the nature of the institution was further changed, and the rights of all in respect of it more qualified. Certainly a person has not the right to claim the privileges and benefits derived from incorporation by a sovereign, and refuse at the same time to submit to any governmental supervision inseparable from his new privileges. The language of the Supreme Court of Massachusetts, holding void the direction of a testator, that the trustees of a public charity established by him should not be accountable to any one in the performance of their trust, is equally applicable to the case of a person obtaining an act of incorporation. "No testator," says Mr. Justice Gray, "can obtain for his bequests that support and permanence which the
i 12 Wallace, 548.
law gives to public charities only, and at the same time deprive the beneficiaries and the public of the safeguards which the law provides for their due and lawful administration." 1
In our judgment, not only does such a power in the legislature exist in regard to all charitable corporations, but such a power is an eminently proper and necessary one. That the power may often be exercised beneficially, even Judge Marshall did not deny. He says, —
"This change may be for the advantage of this college in particular, and may be for the advantage of literature in general, but it is not according to the will of the donors, and is subversive of that contract on the faith of which their property is taken." a
To this we cannot agree; but our answer is expressed best in the language of Mr. B. R. Curtis, the distinguished head of the American bar, in arguing the case of Stanley v. Colt in the Supreme Court. After stating that all charities are under the tutelary authority of the legislature as parens patriot, he said, —
"A charity is never, so to speak, tux juris; it is under perpetual guardianship, and its guardian is the State. It is for this reason that the trustees are prima facie guilty of a breach of trust in selling the estate of a charity without authority derived from the State. And we submit that it is not in the power of a donor to a charity so to fetter the State as to prevent the sovereign power from authorizing a lawful disposition of the estate given to the charity, its ward, when it is clearly made to appear that it will be for the interest of the charity. This has never been done, and we contend that it cannot be done. We do not mean to assert that the State may divert the fund from the use to which it is given. What we say is, that the State may authorize such modal changes in the property from time to time as may be found to be necessary and proper; and that it is not in the power of a donor to provide that this shall not be done." »
In that case, the court held that the legislature of Connecticut could authorize real estate, devised to charitable purposes, to be sold, even though the devise provided that the estate never should be sold. But we think the principle is equally applicable to the whole subject of the regulation of public charities, incorporated or unincorporated. What is beneficial to-day, may be
1 Jackson v. Pkillips, 14 Allen, 571.
> 4 Wheat. 653. 3 5 Wallace, 161,162.