1819] OF THE UNITED STATES. Dartmouth College v. Woodward. 706 urged at the bar, viz., that the charter of Dartmouth College was dissolved at the revolution, and is, therefore, a mere nullity. A case before Lord THURLOW has been cited in support of this doctrine. Attorney-General v. City of London, 3 Bro. C. C. 171; s. c. 1 Ves. jr. 243. The principal question in that case was, whether the corporation of William & Mary College, in Virginia (which had received its charter from King William and Queen Mary), should still be permitted to administer the charity, under Mr. Boyle's will, no interest having passed to the college, under the will, but it acting as an agent or trustee, under a decree in chancery, or whether a new scheme for the administration of the charity should be laid before the court. Lord THURLOW directed a new scheme, because the college, belonging to an independent government, was no longer within the reach of the court. And he very unnecessarily added, that he could not now consider the college as a corporation, or as another report (1 Ves. jr. 243) states, *that he [*707 could not take notice of it, as a corporation, it not having proved its existence, as a corporation, at all. If, by this, Lord THURLOW meant to declare, that all charters acquired in America from the crown, were destroyed by the revolution, his doctrine is not law; and if it had been true, it would equally apply to all other grants from the crown, which would be monstrous. It is a principle of the common law, which has been recognised as well in this, as in other courts, that the division of an empire works no forfeiture of previously-vested rights of property. And this maxim is equally consonant with the common sense of mankind, and the maxims of eternal justice. Terrett v. Taylor, 9 Cranch 43, 50; Kelly v. Harrison, 2 Johns. Cas. 29; Jackson v. Lunn, 3 Ibid. 109; Calvin's Case, 7 Co. 27. This objection, therefore, may be safely dismissed without further comment. The remaining inquiry is, whether the acts of the legislature of New Hampshire, now in question, or any of them, impair the obligations of the charter of Dartmouth College. The attempt certainly is to force upon the corporation a new charter, against the will of the corporators. Nothing seems better settled, at the common law, than the doctrine, that the crown cannot force upon a private corporation a new charter; or compel the old members to give up their own franchises, or to admit new members into the corporation. Rex v. Vice-Chancellor of Cambridge, 3 Burr. 1656; Rex v. Pasmore, 3 T. R. 240; 1 Kyd on Corp. 65; Rex v. Larwood, Comb. 316. Neither can the crown compel a man *to become a member of such [*708 corporation, against his will. Rex v. Dr. Askew, 4 Burr. 2200. As little has it been supposed, that under our limited governments, the legislature possessed such transcendent authority. On one occasion, a very able court held, that the state legislature had no authority to compel a person to become a member of a mere private corporation, created for the promotion of a private enterprise, because every man had a right to refuse a grant. Ellis v. Marshall, 2 Mass. 269. On another occasion, the same learned court declared, that they were all satisfied, that the rights legally vested in a corporation cannot be controlled or destroyed by any subsequent statute, unless a power for that purpose be reserved to the legislature in the act of incorporation. Wales v. Stetson, 2 Mass. 143, 146. These principles are so consonant with justice, sound policy and legal reasoning, that it is difficult to resist the impression of their perfect correctness. The application of Dartmouth College v. Woodward. them, however, does not, from our limited authority, properly belong to the appellate jurisdiction of this court in this case. A very summary examination of the acts of New Hampshire will abundantly show, that in many material respects they change the charter of Dartmouth College. The act of the 27th of June 1816, declares that the corporation known by the name of the Trustees of Dartmouth College shall be called the Trustees of Dartmouth University. That the whole number of *709] trustees shall be twenty-one, a majority *of whom shall form a quorum; that they and their successors shall hold, use, and enjoy for ever, all the powers, authorities, rights, property, liberties, privileges and immunities, heretofore held, &c., by the trustees of Dartmouth College, except where the act otherwise provides; that they shall also have power to determine the times and places of their meetings, and manner of notifying the same; to organize colleges in the university; to establish an institute, and elect fellows and members thereof; to appoint and displace officers, and determine their duties and compensation; to delegate the power of supplying vacancies in any of the offices of the university for a limited term; to pass ordinances for the government of the students; to prescribe the course of education; and to arrange, invest and employ the funds of the university. The act then provides for the appointment of a board of twenty-five overseers, fifteen of whom shall form a quorum, of whom five are to be such ex officio, and the residue of the overseers, as well as the new trustees, are to be appointed by the governor and council. The board of overseers are, among other things, to have power, "to inspect and confirm, or disapprove and negative, such votes and proceedings of the board of trustees as shall relate to the appointment and removal of president, professors, and other permanent officers of the university, and determine their salaries; to the establishment of colleges and professorships, and the erection of new college buildings." The act then provides, that the president and professors shall be nominated by the trustees, and appointed by the overseers, *and *710] shall be liable to be suspended and removed in the same manner; and that each of the two boards of trustees and overseers shall have power to suspend and remove any member of their respective boards. The supplementary act of the 18th of December 1816, declares, that nine trustees shall form a quorum, and that six votes at least shall be necessary for the passage of any act or resolution. The act of the 26th of December 1816, contains other provisions, not very material to the question before us. From this short analysis, it is apparent, that, in substance, a new corporation is created, including the old corporators, with new powers, and subject to a new control; or that the old corporation is newly organized and enlarged, and placed under an authority hitherto unknown to it. The board of trustees are increased from twelve to twenty-one. The college becomes a university. The property vested in the old trustees is transferred to the new board of trustees, in their corporate capacities. The quorum is no longer seven, but nine. The old trustees have no longer the sole right to perpetuate their succession, by electing other trustees, but the nine new trustees are, in the first instance, to be appointed by the governor and council, and the new board are then to elect other trustees, from time to time, as vacancies occur. The new board, too, have the power to suspend or remove any member, so that a minority of the old board, co-operating with the new Dartmouth College v. Woodward. trustees, possess the unlimited power to remove the majority of the old board. The powers, too, of the corporation are varied. It has authority to organize new colleges in *"the university, and to establish an insti- [*711 tute, and elect fellows and members thereof." A board of overseers is created (a board utterly unknown to the old charter), and is invested with a general supervision and negative upon all the most important acts and proceedings of the trustees. And to give complete effect to this new authority, instead of the right to appoint, the trustees are in future only to nominate, and the overseers are to approve, the president and professors of the university. If these are not essential changes, impairing the rights and authorities of the trustees, and vitally affecting the interests and organization of Dartmouth College, under its old charter, it is difficult to conceive what acts, short of an unconditional repeal of the charter, could have that effect. If a grant of land or franchises be made to A., in trust for special purposes, can the grant be revoked, and a new grant thereof be made to A., B. and C., in trust for the same purposes, without violating the obligation of the first grant? If property be vested by grant in A. and B., for the use of a college, or an hospital, of private foundation, is not the obligation of that grant impaired, when the estate is taken from their exclusive management, and vested in them in common with ten other persons? If a power of appointment be given to A. and B., is it no violation of their right, to annul the appointment, unless it be assented to by five other persons, and then confirmed by a distinct body? If a bank or insurance company, by the terms of its charter, be under the management of directors, elected by the stockholders, would not the *rights acquired by the charter be im[*712 paired, if the legislature should take the right of election from the stockholders, and appoint directors unconnected with the corporation? These questions carry their own answers along with them. The common sense of mankind will teach us, that all these cases would be direct infringements of the legal obligations of the grants to which they refer; and yet they are, with no essential distinction, the same as the case now at the bar, In my judgment, it is perfectly clear, that any act of a legislature which takes away any powers or franchises vested by its charter in a private corporation, or its corporate officers, or which restrains or controls the legitimate exercise of them, or transfers them to other persons, without its assent, is a violation of the obligations of that charter. If the legislature mean to claim such an authority, it must be reserved in the grant. The charter of Dartmouth College contains no such reservation; and I am, therefore, bound to declare, that the acts of the legislature of New Hampshire, now in question, do impair the obligations of that charter, and are, consequently, unconstitutional and void. In pronouncing this judgment, it has not for one moment escaped me, how delicate, difficult and ungracious is the task devolved upon us. The predicament in which this court stands in relation to the nation at large, is full of perplexities and embarrassments. It is called to decide on causes between citizens of different states, between a state and its citizens, and between different states. It stands, therefore in the midst of *jealousies and rivalries of conflicting parties, with the most momentous interests confided to its care. Under such circumstances, it never can have a 337 4 WHEAT.-22 [*713 Dartmouth College`v. Woodward. motive to do more than its duty; and I trust, it will always be found to possess firmness enough to do that. Under these impressions, I have pondered on the case before us with the most anxious deliberation. I entertain great respect for the legislature, whose acts are in question. I entertain no less respect for the enlightened tribunal whose decision we are called upon to review. In the examination, I have endeavored to keep my steps super antiquas vias of the law, under the guidance of authority and principle. It is not for judges to listen to the voice of persuasive eloquence, or popular appeal. We have nothing to ảo, but to pronounce the law as we find it; and having done this, our justification must be left to the impartial judgment of our country. DUVALL, Justice, dissented. (a) *714] *Upon the suggestion of the plaintiff's counsel, that the defendant had died since the last term, the court ordered the judgment to be entered nunc pro tunc as of that term, as follows: JUDGMENT.—This cause came on to be heard, on the transcript of the record, and was argued by counsel: And thereupon, all and singular the premises being seen, and by the court now here fully understood, and mature deliberation being thereupon had, *it appears to this court, *715] that the said acts of the legislature of New Hampshire, of the 27th of June and of the 18th and 26th of December, Anno Domini 1816, in the (a) In the discussions which arose in France, in 1786, upon the new charter then recently granted to the French East India company, it seems to have been taken for granted, by the lawyers on both sides, to whom the questions in controversy were submitted by the company, and by the merchants who considered themselves injured by its establishment, that if the charter had regularly issued according to the forms of the French law, it was irrevocable, unless forfeited for non-user or misuser. The advocates (MM. LACRETELLE and BLONDE) who were consulted by the merchants of the kingdom opposed to the establishment of the company, denied its legal existence, on the ground, that the king had been surprised in his grant; that it was not yet perfected by the issuing of letters-patent, nor duly registered by the parliaments; and that it both might and ought to be suppressed, as an illegal grant of exclusive privileges, contrary to the true principles of commercial philosophy. On the other hand, it was contended by the company, that their grant was irrevocable; that it was but a renewal and confirmation of the charter of the old company, which had been suspended in 1769, in consequence of the immense losses of capital sustained in the calamitous war of 1756 (but which suspension was at the time solemnly protested against by the parliament of Paris as illegal); that their new grant might still be perfected by letters-patent, which the faith of the king was pledged to issue; and that the privileges thus granted to them were irrevocably vested, as a right of property, of which they could not be deprived by any authority in the kingdom. "En effet, quand le roi accorde un privilége exclusif, ce privilège est le prix d'une mise de fonds, dans un commerce hazardeux, dont l'entreprize est jugée avantageuse à l'etat. Deld naît par conséquent un contrat synallagmatique, qui se forme entre le souverain et lès actionnaires. Delà naît un droit de propriété qui devient inébranlable pour le souverain lui-même.” And of this opinion were the advocates (MM. HARDOIN, GERBIER and DE BONNIERES) consulted by the company. See a Collection of Tracts on the French East India company, Paris, 1788. in the Library of Congress. 1819] OF THE UNITED STATES. Dartmouth College v. Woodward. 715 record mentioned, are repugnant to the constitution of the United States, and so not valid; and therefore, that the said superior court of judicature of the state of New Hampshire erred, in rendering judgment on the said special verdict in favor of the said plaintiffs; and that the said court ought to have rendered judgment thereon, that the said trustees recover against the said Woodward, the amount of damages found and assessed, in and by the verdict aforesaid, viz., the sum of $20,000: Whereupon, it is considered, ordered and adjudged by this court, now here, that the aforesaid judgment of the said superior court of judicature of the state of New Hampshire be, and the same hereby is, reversed and annulled: And this court, proceeding to render such judgment in the premises as the said superior court of judicature ought to have rendered, it is further considered by this court, now here, that the said trustees of Dartmouth College do recover against the said William Woodward the aforesaid sum of $20,000, with costs of suit; and it is by this court, now here, further ordered, that a special mandate do go from this court to the said superior court of judicature, to carry this judgment into execution. 339 |