Canal Co. v. Railroad Co., 4 Gill & J. 128, 9 Pac. 36; State v. Young, 29 Minn. 539, 9 N. W. 747. The holding has been criticised in a Colorado case. People ex rel. Seeley v. Hall, 8 Colo. 490, 9 Pac. 36. So also it is cited to the point that corporations are as much within the obligation clause as individuals. Santa Clara R. R. Co. Cases, 9 Sawy. 184, 185, 18 Fed. 397; San Mateo R. R. Tax Cases, 8 Sawy. 261, 13 Fed. 740.

In accordance with this principle, a statute rescinding a contract already made for the building of a State penitentiary, and providing that no compensation should be paid for its breach, infringes the constitutional prohibition under consideration. Danolds v. State, 89 N. Y. 45, 42 Am. Rep. 280. As also a statute attempting to alter the terms of a contract for the operation of a State penitentiary, between the State and the warden. McCauley v. Brooks, 16 Cal. 30. County warrants issued at a time when the law required that they be received in payment of taxes, may be so used although this requirement has been repealed. People ex rel Seeley v. Hall, 8 Colo. 490, 9 Pac. 36. It is, of course, otherwise as to warrants issued subsequent to the repeal. The repeal of a law requiring the refunding of money paid at an irregular tax sale, impairs the obligation of a contract if applied retrospectively to prior transactions. Corbin v. Board, 1 McCrary, 527; S. C., 3 Fed. 362. A constitutional amendment requiring a ratification, by the people, of a statute levying a tax to meet certain railroad bonds theretofore guaranteed by the State, is invalid as tending to impair the absolute obligation of the State to pay them. State v. Young, 29 Minn. 539, 9 N. W. 747.

Corporations. The obligation of a charter on the part of the incorporators is that of performing the functions for which it is created, pp. 658, 688.

Cited to this point in Swift v. Richardson, 7 Houst. 355, 356, 32 Atl. 144, 145; Illinois, etc., R. R. Co. v. Bentley, 64 Ill. 441. Cited in Attorney-General v. Bank of Michigan, Hare (Mich.), 326, to point that acceptance of a charter will be presumed; State v. Georgia Med. Soc. 38 Ga. 626, 95 Am. Dec. 410, to point that acceptance of charter subjects the corporation to proper legal supervision by the State.

Corporations.- Charter may be forfeited for abuse of franchises, or for negligence, p. 659.

Cited to this point in 8 Am. St. Rep. 179, note.

Charitable corporations.—By common law visitatorial power vests in the donor and his heirs, pp. 660, 673; and upon incorporation, in the trustees, p. 675.

Cited to this point in Sanderson v. White, 18 Pick. 335, 29 Am. Dec. 595, holding rule also applicable in this country; Nelson v. Cushing, 2 Cush. 530, 531, holding that courts will not interfere with

this power except for breach of trust; Murdock, Appellant, etc., 7 Pick. 322, sustaining removal of a teacher by visitors; Union Baptist Assn. v. Huhn, 7 Tex. Civ. App. 252, 26 S. W. 756; Regents v. Williams, 9 Gill & J. 401, 402, 31 Am. Dec. 90, and Chambers v. Baptist, etc., Soc., 1 B. Mon. 218, as to visitatorial power vested in corporate trustees. Cited also on power of amotion in State ex rel. Adams, 44 Mo. 586.

Charitable corporations. Religion, charity and education are legatees capable of being beneficiaries of a charitable trust, p. 646. Cited to this point in Board of Education v. Bakewell, 122 Ill. 351, 10 N. E. 384. Cited as to what constitutes an eleemosynary corporation in People, etc. v. Fitch, 154 N. Y. 32, 47 N. E. 988, holding an institution for instruction to the blind to be such; to the point that "seminary" sometimes means an institution of learning in Chegard v. Mayor, 13 N. Y. 229, denying that exemption of such institutions from taxation included a private boarding school.

Corporations. Public corporations are generally esteemed such as exist for public political purposes, such as towns, cities, parishes and counties; more accurately, they are such as are founded by the government for public purposes, where the whole interests belong to the government. But a corporation is private if its foundation is private, no matter how extensive its uses, per Story, J., pp. 668, 669; also pp. 629, 634, 659.

Under the definition of public and private corporations thus laid down in the principal case, it has been held in a subsequent case, by a divided court, that the university largely endowed out of lands granted by the Federal government is a private corporation, Vincennes University v. State, 14 How. 276, 281, 14 L. 419, 421; and in several other cases educational institutions whose "foundation" was found to be private, were declared private corporations, protected by the doctrine of the leading case. Louisville v. University, 15 B. Mon. 669; People v. Cogswell, 113 Cal. 139, 45 Pac. 272; Allen v. McKean, 1 Sumn. 297, 298, 299, 301, F. C. 229; American Asylum. etc. v. Phoenix Bank, 4 Conn. 177, 10 Am. Dec. 113; Ohio v. Neff, 52 Ohio St. 404, 405, 40 N. E. 724; Board of Education v. Bakewell, 122 Ill. 344, 10 N. E. 381; Cleveland v. Stewart, 3 Ga. 287, 291, 292; Drake v. Flewellen, 33 Ala. 108; Downing v. Board, 129 Ind. 449, 28 N. E. 125; Fuller v. Trustees, etc., 6 Conn. 544, 545. And see Yarmouth v. North Yarmouth, 34 Me. 418, 56 Am. Dec. 669; New Gloucester v. Bradbury, 11 Me. 122, 124–126, 26 Am. Dec. 516, 518, 519, 520. And this is true, although the institution be in part endowed by the State. Downing v. Board, etc., 129 Ind: 449, 28 N. E. 125; Cleaveland v. Stewart, 3 Ga. 291, 292. Being a private corporation, the enabling act will not be judicially noticed. Drake v. Flewellen, 33 Ala. 108. But if an educational institution be founded for public purposes and with public funds, it is public and subject

to legislative control; the State may, therefore, regulate the number of, remove and appoint the trustees. Dart v. Houston, 22 Ga. 529, 530, 534; University of Michigan v. Board of Education, 4 Mich. 225; State v. Knowles, 16 Fla. 616. So also it may change the custody of the corporate property and funds. Regents of University v. McConnell, 5 Neb. 427; Wambersie v. Orange, etc., Soc., 84 Va. 453, 5 S. E. 28. The proposition that such an institution is public, is relied upon in holding a defaulting university treasurer within the law against embezzlement by public officers, Spalding v. People, 172 Ill. 48, 49 N. E. 995; in holding valid a statute providing for the forfeiture for default, by a purchaser of university lands, University v. Winston, 5 Stew. & P. 22; and in holding a State governor without power to remove and appoint visitors, where that power is reserved by the legislature. Lewis v. Whittle, 77 Va. 419. And elsewhere a dissenting judge has deemed the principal case authority against holding such an institution to be public at all, Dickson v. People, 17 Ill. 198; and it has been held not public within the meaning of an act providing the rate of interest upon "public funds." State v. Carr, 111 Ind. 337, 12 N. E. 319.

In several cases respecting banking corporations, the definitions and distinctions of the leading case are relied upon. Thus it has been held that, although erected by the government, a bank whose stock is held by private persons is private, and its charter protected by the contract clause, State Bank of Ohio v. Knoop, 16 How. 380, 14 L. 982; although the State court thought otherwise, Knoop v. Bank, 1 Ohio St. 618; that a bank operated exclusively by the government is public and may be discontinued by the State at its option, and the compensation of its directors is for the State to determine, State v. State Bank of South Carolina, 1 S. C. 67; State v. Curran, 12 Ark. 353; Branch Bank v. Collins, 7 Ala. 101; that certain other banks were private corporations in deciding that a bank charter may be forfeited for nonuser of its franchises, and in upholding as a contract stipulation a provision of another charter granting to the bank a summary method of obtaining judgment against its debtors. State v. Bank of South Carolina, 1 Spears, 502; Logwood v. Planters', etc., Bank, Minor, 24.

Other cases deal with railroad corporations which have uniformly been held to be private, although their uses are, in another sense, largely public. Accordingly it has been held in cases citing Dartmouth College v. Woodward to this point that the act incorporating a railroad is a private statute not requiring publication as a condition precedent to its enforcement, Burhop v. Milwaukee, 21 Wis. 260; that such a concern is a "business" corporation within the benefits of a bankrupt act, Adams v. Boston, etc., R. R. Co., 1 Holmes, 31, F. C. 47; Sweatt v. Boston, etc., R. R. Co., 3 Cliff. 346, 348, 353, F. C. 13,684; that its bonds are not "public stocks," exempt from taxation, Hale v. County Commissioners, 137 Mass. 114; that,

although private, the right of eminent domain may be exercised in its behalf, Bloodgood v. Mohawk, etc., R. R. Co., 18 Wend. 51, 69, 31 Am. Dec. 348, 363; Bonaparte v. Camden, etc., R. R. Co., 1 Bald. 220, 223, F. C. 1,617; but not if it is constructed for mere private use, Sadler v. Langham, 34 Ala. 324; and again, that although a private corporation, the levy of a tax for the purchase of its stock by a county, is within the meaning of a constitutional phrase "county purposes," and valid. Cotten v. Leon Co., 6 Fla. 646. Elsewhere the principal case is cited in holding a canal company to be a private corporation, and liable as such for negligence, Hooker v. New Haven, etc., Co., 15 Conn. 322; but nevertheless discharging public uses and, therefore, capable of condemning and using property under eminent domain, Rundle v. Delaware, etc., Canal, 1 Wall. Jr. 291, F. C. 12,139; and public to the extent that voting for corporate officers by proxy would not be sustained. Taylor v. Griswold, 14 N. J. L. 234, 27 Am. Dec. 43. Again it is cited in holding a home for inebriates established by private benefaction to be private, although supported in part by the State, Washington Home v. Chicago, 157 Ill. 423, 41 N. E. 895; in holding a corporation for Slaughtering live stock to be private, because owned and controlled by private individuals, Putnam v. Ruch, 56 Fed. 418; in holding an industrial, mining and manufacturing corporation" to be private within the meaning of an act permitting dissolution upon a threefourths vote, Wolfe v. Underwood, 91 Ala. 526, 8 So. 775; in holding the Boston Protective Department," an organization in the interests of fire insurance companies to be private. Newcomb v. Boston, etc., Department, 151 Mass. 217, 24 N. E. 39. Another case cites the leading case on the distinction between public and private corporations, in holding that the legislature cannot make certificates of State indebtedness and auditors' warrants receivable in payment of county taxes, Wells v. Cole, 27 Ark. 611; another in holding that the public property of a county may not be sold on execution in favor of an individual creditor, Gooch v. Gregory, 65 N. C. 144; and another in holding that as to its private property a municipality is liable for negligence to the same extent as an individual. Bullmaster v. St. Joseph, 70 Mo. App. 66. See also 27 Am. Rep. 85.

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Corporations. Where a corporation is to be brought into existence by some future act of the incorporators the franchises remain in abeyance and attach when such acts are done, p. 691.

Cited to this point in Williams v. State, 23 Tex. 287, in penalizing the issue of bank notes prior to due incorporation; People v. Wren, 4 Scam. 280, dissenting opinion; Vincennes Univ. v. State, 14 How. 275, 14 L. 419, holding that a Federal grant to a seminary of learning attached upon its incorporation two years later; Huff v. Winona, etc., R. R. Co., 11 Minn. 192, involving a grant of lands accompany. ing a charter.

Corporate franchises are legal estates vesting as soon as the corporation is in esse, p. 700.

Cited to this point in Society for Savings v Coite, 6 Wall. 606, 18 L. 902. Cited in Reed v. Beall, 42 Miss. 484, holding franchises property and a legitimate object of taxation.

Powers coupled with an interest are irrevocable, p. 700.

Cited to this point in Hilliard v. Beattie, 39 Atl. 898, collecting cases, and in notes, 2 Am. Dec. 291, 7 Am. Dec. 525.

Practice. Defendant having died since previous term, when cause was argued, judgment was entered nunc pro tunc as of that term, p. 714.

Practice followed in Lasselle v. Barnett, 1 Blackf. 155, n.

Miscellaneous citations.- Being a leading case upon the interpretation of the obligation clause of the Federal Constitution the College Case has come in for its share of citation as a type or illustration of the operation of that limitation: Blaire v. Williams, 4 Litt. (Ky.) 65; State v. Barker, 4 Kan. 384, 96 Am. Dec. 177; Scobey v. Gibson, 17 Ind. 577; Boyers v. Crane, 1 W. Va. 180; Ex parte Mayer, 27 Tex. 721; Synod of Dakota v. State, 2 S. Dak. 371, 50 N. W. 634; Knighton v. Burns, 10 Or. 550; Goldsmith v. Brown, 5 Or. 420; Lowe v. Harris, 112 N. C. 481, 17 S. E. 540; Virginia Coupon Cases, 114 U. S. 336, 29 L. 209, 5 S. Ct. 966; Wilder v. Lumpkin, 4 Ga. 219; Cooper v. Allen, Harr. (Mich.) 85. In Goshen, etc., Co. v. Sears, 7 Conn. 92, it is cited to the point that as a charter is a contract it is sufficient to plead its effect and not the evidence of it; in Ogden v. Saunders, 12 Wheat. 298, 6 L. 635, to the point that contracts are governed by the lex loci contractus; in Moore v. Moore, 4 Dana (Ky.), 357, 29 Am. Dec. 420, to the point that equity has general jurisdiction over trusts; in State v. Burk, 63 Ark. 64, 37 S. W. 409, to the point that no independent rights vest absolutely in trustees in the execution of their trust. Cited in Boody v. Watson, 64 N. H. 186, 9 Atl. 812, and Wooster v. Plymouth, 62 N. H. 210, referring incidentally to the decision in the State court. Cited in Murphy v. Bennett, 68 Cal. 536, 9 Pac. 743, to point that documents constituting title are inserted in special verdict. Cited in In re Narragansett Indians, 40 Atl. 364, remarking that Indians are not a corporation or quasi-corporation and the college doctrine is, therefore, inapplicable; also in State ex rel. v. Coosaw Min. Co., 45 Fed. 806, as instance of case where Federal question was involved. See 90 Am. Dec. 105, note, respecting charitable trusts. Miscited in Lambourn v. Hartswick, 13 Serg. & R. 122; Bloom v. Beebe, 15 La. Ann 65, and misquoted in State v. Canal, etc., R. R. Co., 24 So. 271.

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