THE DARTMOUTH COLLEGE CASE under any other ascertainable conditions. Marshall admits that such contracts as this charter were probably not in the minds of the framers of the constitution, when the protective clause was introduced. But he declares that it is not enough to say this. We would have to say that, "if this par ticular case had been suggested, the language would have been so varied as to exclude it or it would have been made a special excep tion. " This language has excited the wrath of one commentator, as if the judge had therein announced a reckless disregard for legal principles, and had been guilty of a rank usurpation of authority. Marshall adds, "The case being within the words of the rule, must be within its operation like wise, unless there be something in the literal construction so obviously absurd or mis chievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an exception." He points out that the pro visions in the constitution for patents and copyrights argue interest, on the part of the framers of the instrument, in science and the useful arts; and he asks why we must suppose contracts in the interest of literature to be excluded from provisions made for the security of ordinary agreements between man and man. Not a trace is to be found in Marshall's opinion of a desire to broaden its scope in a way to include any other sort of a charter than one to a private, eleemosynary institu tion. Washington, even more carefully, limited his conclusions to the case in hand, seeking to forestall any attempt to apply the decision to cases involving different sets of circumstances. He sharply dis tinguished incorporated private charities from public corporations, holding the charters of the former to be contracts between their founders and the state, and to be protected by the United States con stitution, but the charters of the latter to be simply descriptive of the powers of bodies created as instruments for carrying out the
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purposes of the state itself, whether for government or for work under the control of the state. He, too, does not consider business corporations, and intends, therefore, that his opinion shall not apply to them. Story points out that, when the argument is advanc'ed that because the charity is public, the corporation is public, the popu lar sense of the word "public " is confounded with the strictly legal sense in which the word is applied to corporations. It is in Story's opinion that we find the only trace discoverable in the decision rendered by the court of an extension of the principle of the inviolability of charters to those of business corporations. He supposes the case of a bank, where the stockholders pay in their money, and where the benefit accrues to the stockholders themselves. He holds that the charter of the bank would be ifiviolable by the state, as long as the bank conformed to the general laws of the state and the terms of the charter. Of course, this expression of opinion is obiter, and of no binding force upon future decisions of the courts, although Story draws an a fortiori conclusion, in view of the greater value to the public of a public charity, in favor of the inviolability of the charter of such a charity. He instances the protection ac corded to devises and legacies to municipal corporations, the funds being inviolate under any change of charter that the legis lature may make. Here, he is close to the heart of the question, as we shall presently see. He takes far broader ground than Marshall, holding that corporate franchises are property, with all the rights of property secured by the constitutions of the state and of the United States. Strange to say, in all the arguments of counsel, and in all the discussions of the case by the. various judges whose opinions have been published, little is made of the fact that the circumstances of the incorpor ation of the trustees was important only as giving them a collective individuality and perpetuity, while their real character lay in
