Mobile School Comm'rs v. Putnam , 44 Ala. 506 ( 1870 )

PECK, C. J.

This case comes here on an appeal from a decretal order of the chancellor, dissolving an injunction heretofore granted, on the filing of the bill of complaint in this behalf.

Section 3489 of the Eevised Code enacts,¡that such eases must be heard and determined at the first term of the court after such an appeal is taken.

The argument has just closed on this, the last day of the term,* leaving but little time to consider and determine a question of so much gravity and importance.

From the best reflection we have, in so short a time, been able to give to it, we hold — 1st, that “ the Mobile school commissioners” constitute a public corporation, created for great public educational purposes, and that the charter of said corporation, being public in its character, may be altered and amended, at the will and pleasure of the general assembly of the State.— The Trustees of the University of Alabama v. Winston, 5 Stew. & Por. 17.

2d. That the funds provided for and devoted to the objects of this important trust, and which have been and are, from time to time, increased and augmented by the bounties and from the revenues of the State, although the State may not have the constitutional power to divert them from the purposes of the said trust, may, nevertheless, change the administrators of said trust funds, and, in her wisdom and discretion, direct the mode and manner of its administration, and how, and by whom, and to whom the funds devoted by the State for the purposes aforesaid are to be paid and applied.

3d. That the charter of said corporation does not constitute a contract between the State, on the one hand, and the said school commissioners on the other, the obligation of which is secured and protected from impairment by the constitution of the United States.

4th. That neither the present constitution of this State, nor the legislation of the board of education created by it, divert, nor are they designed to, nor have they or either of .them diverted, the said trust funds from the objects and purposes for which they were or are intended.

Note by Reporter. — Upon the day upon which the foregoing opinion was read, the last day of the January term, the appellants petitioned for a rehearing, and afterwards filed the following argument in support thereof.

5th. That the bill of complaint, taken in connection with the answer of the defendant,’ said Putnam, does not show that the said trust funds have been, or are in danger of being, either wasted, diverted, or misapplied.

6th. That the educational institution in this behalf, with all other educational institutions in this State, are, legally, under the management and control of the superintendent of public instruction, and the board of education of this State, created by the constitution thereof; and that said board of education has full legislative powers in reference to it, and all other public educational institutions in the State, and that its acts, when approved of by the governor, or re-enacted, as provided in section 5 of article 11 of the constitution, have the force and effect of law, unless, and until, repealed by the general assembly.

For these, and other reasons not here named, we hold, that the said injunction heretofore granted was unadvisedly granted, and that the decretal order of the chancellor, dissolving the same, is right and free from error.

If it shall be deemed best, an opinion will hereafter be prepared and filed, setting forth more at length the reasons for affirming the order and decree of the chancellor in this behalf.

Let the decree of the court below, dissolving the injunction, be affirmed, and the appellants will pay the costs of said appeal in this court and in the court below.

P. Hamilton, and Goldthwaite, Rice & Semple, for appellants. — The principle upon which the bill rests is familiar, and is recognized and enforced in the Mayor v. Rodgers, 10 Ala. R. 37, and in the cases therein cited.

The corporation was created and its franchises conferred upon it, originally, by the aqt entitled “ an act establishing schools in the county of Mobile,” approved January 10th, 1826, Pamphlet Acts of 1825-6, pp. 35, 36. The privileges or franchises thus granted, were not only continued, but added to, by successive acts of the general assembly of Alabama, down to and including the acts of 1854 and 1856. Pamph. Acts of 1853-4, pp. 190, 191; Pamph. Acts of 1855-6, pp. 148, 149.

Every thing (except “ the funds arising from any sixteenth section,”) which has heretofore been granted to said corporation, became [by mere force of the grant,] the property of the corporation, clogged only with the restrictions, that “the whole revenue arising to said board of commissioners shall be employed as a common fund for the instruction of the youth of said county and that no portion thereof shall be diverted to the maintenance or support of any school that is not strictly common to all children of the county, or to any that is under sectarian influence or control.” And all this property, as well as revenue, “shall be under the control, direction and management of said commissioners,” and be “appropriated and disbursed under the directions of the Mobile school commissioners.” — See sections two and four of the act of 1854, above cited.

It is plain from the allegations of the bill, that Putnam and Cloud have heretofore acted, and are still continuing to act, in violation of these privileges or franchises conferred by statute upon the said commissioners ; and that unless Putnam and Cloud are restrained, they will disable these commissioners from using these statute franchises or privileges. Cloud and Putnam, by their conjoint action, have already [as the bill shows,] diverted over $5,000 of the trust fund, and are on the very eve of diverting nearly $10,000 more of it, in defiance of the statutes above cited, and are continually pursuing a line of policy which destroys “the direction, control and management of said commissioners” over the trust .fund, and the right of said commissioners to direct the appropriation and disbursement of each and every portion of that fund.

No plainer case can be made for one of these special injunctions, yrhicli will not be dissolyed before the final hearing. The very nature of the grievance is such, that the injunction is the whole case. To dissolve it on mere answer, before final hearing or proof taken, is to arm a conscienceless perpetrator of irreparable injury with the power of continuing his irreparable mischief by swearing to and filing an unconscientious answer. — McBrayer v. Hardin, 7 Iredell’s Eq. Rep. 1; Purnell v. Daniels, 8 Iredell’s Eq. Rep. 9; Poor v. Carleton, 3 Sumner’s Rep. 70; Maxwell v. Ward, 11 Prince’s Rep. 17.

In dissolving the injunction in vacation, the chancellor not only violated the salutary rule last above called to view; but he also violated this other plain and sound rule, to-wit, “that an injunction properly granted, is not to be dissolved until the answer of all the defendants [who are charged with a knowledge of the facts or participation in the wrong,] has come in.” — Depeyster v. Graves, 2 Johns. Ch. R. 148, 149.

The bill shows that Cloud is at least equally guilty of the wrong with Putnam ; in fact, that Putnam could not have consummated any wrong in the way of obtaining and diverting the fund, but for Cloud’s furnishing him with the certificate or instrument, which was essential to obtain either a warrant from the auditor, or money from the treasurer. And yet, without any answer from Oloud, the chancellor dissolved the injunction upon the answer of Putnam only!

Cloud’s failure to answer, authorizes the inference that he could not swear to any such answer as that put in by Putnam. Now, suppose Cloud had answered, and admitted the allegations of the bill; does not every chancery lawyer see that a dissolution of the injunction upon Putnam’s answer would have been wholly erroneous? It is equally erroneous to dissolve upon Putnam’s answer alone, before Cloud has answered, and before any proof taken, and before final hearing.

The answer of Putnam does not deny these specific acts of his and of Cloud, which acts, in law, amount to a diversion of the fund, and to an interference with the franchises of complainant.

Even if the bill is defective as to matters which are amendable, the rule is, that on motion to dissolve an injunction in vacation, all amendable defects in the bill will be considered as amended. — Alabama and Florida Railroad Company v. Kenney, 39 Ala. Rep. 307.

From what has already been above laid down, it is clear, that the bill makes a plain case for relief by injunction. The natural inquiry then is, do the facts, or any of them, stated in the answer of Putnam, have the legal effect of overturning or barring the right apparent upon the bill.

It is obvious, that the right asserted by the bill can not be overturned or barred by anything contained in Putnam’s answer, unless the aforementioned franchises, granted to said commissioners, by the statutes above cited, “to the control, direction and management” of said property and funds, as well as to the appropriation and disbursement thereof, has been destroyed by the present constitution of Alabama, or by some valid law enacted since the adoption of that constitution. If that franchise survives, if it still exists, there is nothing in Putnam’s answer which can bar the right to an injunction which is disclosed by the bill.

We proceed now to inquire whether each of these franchises was destroyed by any thing contained in our present constitution. In pursuing this inquiry we must remember, that the destruction of those several franchises, is, inevitably, the destruction of a system of education originated in 1826, nourished and cherished certainly down to the adoption of the constitution; and during all that long period operating so benignly, that it received from the very convention which framed the present constitution, not only friendly recognition, but unqualified favor and sanction. [Ordinance No. 21, passed November 30, 1867.] Deprive the commissioners of “ the control, direction and management,” and of the appropriation and disbursement of the funds by which only the system has been and is supported, and the system which they have built up and perfected, necessarily perishes. It would be strange indeed, after reading ordinance No. 21, above cited, to impute to the convention which adopted it, an intention, in framing the constitution, entirely antagonistic to the intention plainly evinced by that ordinance. The argument for defendant, in effect, charges the convention with entertaining at the same time, contradictory intentions, as to the same old and well known system for educating “the youth of the county;” and the intent to destroy this system, is imputed to a convention which not only, by ordinance, evinced .its intent to preserve the system, but also to add to its efficiency.

Upon the principle, so well illustrated in Horton v. Mobile School Commissioners, that the special controls the general, and that repeals by implication, of special laws and special systems, will not be made out by mere general words ; it becomes evident, that there is nothing in the constitution which can justly be held to operate as a repeal or destruction of the franchises of the said school commissioners, or the special system under their control. The words used in article eleven of the constitution are the only words from which such repeals or destruction is claimed to result; and these words are merely general, and can be reconciled with the continued special system in Mobile. Thus, the words of the first section are, “the common schools, and other educational institutions of the State.” These are words of description and restriction merely; they were used to describe, not the ownership of the schools or other educational institutions, but to indicate clearly, that the constitution was not designed to include all the schools and educational institutions in the State. If the design had been to include all, the words would have been as follows: “ the common schools and other educational institutions in the State.” What was meant by the words actually employed, was, the common schools and other educational institutions which the State had generally supported or aided in supporting, and over which the State had retained general control, without ever having vested their control or management in any special body or by any special system ; for all these may well be called schools or institutions “of the State.” But as far back as 1851 the “school system of the county of Mobile” is spoken of in the statute law, as “a public school system of its own,” [that is, of Mobile county.] Hence, the framers of the constitution treated it as a school system of that county; and desiring to leave it untouched, used words, schools and institutions of the State, so as to distinguish between them and the special system of that county. —Pamph. Acts of 1853-4, p. 17, § 2.

The next position understood to be taken by the counsel for defendant, is, that even if the constitution did not destroy the said franchises of complainant, the acts of the board of education effected this destruction.

Ordinance twenty-one of the convention plainly recognizes the complainant as a legally existing corporation, and expressly reasserts and secures the rights of “the school commissioners of said county of Mobile” under the said act of February 15,1856, and amounts to a recognition and re-enactment of the provisions of that act. Ordinance No. 33, of the same convention, virtually prohibits the repeal of any ordinance of that convention, except “by the the legislature of this State, two-thirds of each house voting for the same." This affirmation, that two-thirds of each house of the general assembly may repeal an ordinance, amounts to a negation of the right of the board of education to repeal one.— Vallandighams Case, 1 Wallace, and cases there cited. And so, the act of the general assembly entitled, “An act to continue in force certain laws,” approved July 29th, 1868, virtually prohibits the boards from repealing any constitutional laws found in the Revised Code. Every such law is thereby declared to be of full force, until repealed by this (legislature) or some succeeding legislature.” — Pamph. Acts of 1868, p. 7. That act excludes a repeal by the board, of any law therein described.

The constitution does not confer on the board of education, the power to repeal or amend any ordinance of the convention, or any act of the general assembly. All the powers conferred on that board, by the constitution, must be held subordinate to the constitution and to the powers conferred by that instrument upon the general assembly. The constitution is not to be construed so as to make it the creator of two co-equal and co-ordinate legislatures upon any one subject. That would be not only absurd, but mischievous and destructive of that very harmony which it is the object of every government to secure. The relation established by the constitution between the board of education and the general assembly, even as “to common schools and the educational institutions of the State,” is that of inferior and superior ; substantially the same relation as exists when the general assembly [as it often has done,] confers upon a strictly municipal corporation [as a city or town] legislative or governmental powers within its corporate limits. It is well settled, that in such cases, the municipal corporation, however general may be the words granting its governmental powers, can not repeal or amend an act of the general assembly. The board of education is nothing more, in its very nature, than such a municipal corporation. True, this board is created by the constitution, and derives its powers from that instrument. But that fact does not alter its nature, or make it equal to, or co-ordinate with, the general assembly on any subject. The only effect df that fact, is, that the general assembly can not, by its mere act, take away from the board the powers which were really conferred upon it by the constitution ; whilst the general assembly may take away, by its own act, the governmental powers which it had conferred by its own act, upon any municipal corporation.

This view becomes conclusive upon a careful examination of article 11, of the constitution, in connection with articles 3 and 4. The two articles last mentioned clearly vest in, and confines to, the general assembly the whole legislative power of this State. Then the first section of article 11 proceeds to place the common schools and other educational institutions of the State,, “under-the management of a board of education;” and section 5, of this last mentioned article, declares that “the board of education shall exercise full legislative powers in reference to the public educational institutions of the State.” It is. argued, that no limitation ’ can be put upon these words,, “full legislative- powers.” If this were so, it would follow that the board might exercise legislative powers, the exercise of whieh is prohibited both by the constitution of this. State, and the United States. This can not be. The truth is, these words, however sweeping they may appear to be,, are subject to limitations. These limitations are to be-ascertained by the nature, provisions, and end of the entire instrument in which they are found, and by the established rules for construing such instruments and such general words, when found in such instruments. Guided by such considerations, the conclusion is easily reached, that the phrase “full legislative powers” occurring in the said 5th section of article-11, must be construed to mean no more than such “full legislative powers” as may be necessary and proper to secure to the board of education merely “the management” of the educational institutions “of the State,” embraced and mentioned in the first section of that article, and which at the same time must not be in conflict with any provision of any act of the general assembly, or of the constitution of this State, or of the constitution of the United States. This is the only construction which can harmonize the various provisions of the constitution of the State, and allow some operation or effect to each sentence, clause, and word, thereof. To effect such harmony, it is not unusual, but always proper, to narrow and limit the apparent scope of such sweeping words. — May v. Robertson, 13 Ala. R. 86.

This construction leaves a field of operation useful if not extensive — field of “management” — to the board of education ; a field by the wise cultivation of which “the general interest of education” may be favorably “affected;” but by the unwise cultivation of which “the general interest of education” may be most unfavorably “affected.” Hence, the constitution imposes many restraints upon the board of education in this their appropriate field of legislation. Among these are the following: That “no rule or law affecting the general interest of education shall be made by the board without the concurrence of a majority of its members ;” that its acts shall have the force and effect of law, only “when approved by the governor, or when reenacted by two-thirds of the board in case of his disapproval.” — (Vallandigham's Case, 1 Wallace;”) that all its acts may be “repealed by the general assembly;” that “the style of all acts of the board shall be, ‘ Be it enacted by the board of education of the State of Alabama;’ ” and that “the board of education shall meet annually at the seat of government, at the same time as the general assembly; but no session shall continue longer than twenty days, nor shall more than one session be held in the same year, unless authorized by the governor.”

This power of “ management,” which is the power conferred upon the board, so far from including the power to destroy any of the existing educational institutions of the State, imposes upon the board the duty of preserving them, and each of them. There is not a line or word in the constitution which gives to the board the power to destroy one of those institutions. But the clear intent of that instrument is, that the board may create schools and school districts — that the board must increase, but should not diminish the number of such institutions which it found in existence. This power to create, is expressly given in the 6th section of article XI. Is it not significant, that this power to create is expressly conferred, and that the power to destroy is not to be found in the instrument ? •

The following propositions are deemed incontrovertible, to-wit: 1st. That the constitution does not empower the board of education to repeal or amend or interfere with any ordinance of the convention which framed it or any act of the general-assembly; 2d. Ordinance No. 33 of that convention virtually prohibits any repeal of any ordinance of said convention by said board; 3d. The above mentioned act of the general-assembly of July 29th, 1868, virtually prohibits the repeal by said board of any constitutional law found in the Revised Code of Alabama.— Pamph. Acts of 1868, p. 7; 4th. Ordinance 21 of said convention, in its title as well as in its body, recognizes the legal existence pf the Mobile school commissioners-, and the existence of the rights of that corporation or “ board” under the statute law which was enacted before the war ; 5th. The Revised Code, as adopted by said act of July, 1868, clearly recognizes the continuing legal existence of the “ public school system” in the «ounty of Mobile under statutory law passed before the war; section 991 of that Code is in the following words, to-wit: “ As the county of Mobile now has established a public school system of its own, the provisions of this chapter shall apply to that county only so far as to authorize and require its school commissioners to draw the portion of the funds to which that county will be entitled under this chapter, and to make the reports to the superintendent” (not county, but State superintendent) “ herein required 6th. On the supposition that the matters pertaining tó said school commissioners of Mobile, may be' included among “ the municipal affairs of Mobile,” it is clear, that the act of the general assembly of August 6th, 1868, entitled “ an act to provide for the qualification and appointment of State, county and municipal officers,” carefully recognizes these affairs as legally existing, and provides “ that nothing in that act shall be so construed as to interfere” with them. — Pamph. Acts of 1868, pp. 32, 33.

Notwithstanding these several recognitions by the convention which framed the constitution, and by the first general assembly thereunder, the board of education assumed that it had the power to change or destroy the system of public schools in Mobile which had been so long established, and. which had been thus recognized by the convention and the general assembly. That board also assumed that it had the power to repeal any act of the general assembly “ pertaining to the subject of education or in any way connected therewith.” — (See the acts of that board purporting to be laws made by it, in the summer of 1868, and also its subsequent acts and resolutions.)

These acts, as well as resolutions of the board of education, in so far as they assume to impair the force of any ordinance of the convention, or any act of the general assembly, are utterly void, upon the grounds herein above disclosed. But independently of these grounds, these acts and resolutions are null and void, for other reasons hereinafter set forth.

Every act passed by the board of education in the summer of 1868, (except the single one which purports to have been approved July 30th, 1868, which makes provisions as to surplus moneys belonging to the school fund of the State of Alabama, and which certainly has no bearing on the present case), was passed more than twenty days after the day by law prescribecfcfor the first meeting of the general assembly! and is, for that reason, unconstitutional and void.^See article 4, section 21, and article 11, section 9, of the constitution.

The day “ by law prescribed” for the first meeting of the general assembly, was the 13fch day of July, 1868. • That day was prescribed by, or (what is the same thing) in pursuance of the law of congress which validified our constitution and admitted Alabama and other southern States to representation in congress ; which law took effect on the 25th day of June, 1868. — Pamph. Acts of Congress of 1868,' pp. 73, 74.

The general assembly actually had its first meeting on the day thus prescribed. Whether the board of education actually met on that day or not, is wholly immaterial. The “ twenty days ” which the constitution mentions as the duration of its session, began to run on that day, and continued to run until they ran out, whether the board was actually in session or not on any one of these “ twenty days.” The board could not stop the operation of the constitution by its failure to meet “ at the same time as the general assembly.” In counting these “ twenty days,” the courts can not except Sundays, because the constitution does not except Sundays in counting these “ twenty days.” Wherever the constitution authorizes Sundays to be excepted, it makes the exception in express terms; for example, in counting the “ five days ” during which the governor may keep a bill which has passed both houses of the general assembly, the constitution expressly says, “Sundays excepted.” — Art. 4, § .16.

The act of the general assembly entitled “ An act to fix the day for the annual meeting of the general assembly of the State of Alabama,” approved July 24th, 1868, furnishes no escape from the conclusion above reached, that the “ twenty days ” began on the 13th day of July, 1868, and continued to run, including Sundays, until the “twenty days ” had run out. That act speaks only from the day of its approval — that is, from the 24th day of July, 1868, and all it does say is as follows: “ Section 1. Be it enacted by the general assembly of Alabama, that the 13th day of July is hereby declared thejiday for the annual meeting of the general assembly of the State of Alabama.” That act does not purport to be retrospective in any respect whatever. It does not say that the 13th day of July, 1868, shall be deemed and taken to be the day on which this general assembly began its annual meeting. The courts are bound to treat the act as prospective only, and as fixing the day on which any future annual meeting of the general assembly should commence. And this would have been its effect, if it had not been repealed before July 13th, 1869, and a different day prescribed for the meeting of the general assembly. This will be clear to all who notice that the constitution does not require that the general assembly shall meet on the same day in every year, but only that it “ shall meet annually, on such day as may be by law prescribed.”

Besides all this, the day “ fixed for the first meeting of the legislature” of this State, under the constitution of this State, was fixed by the very act of congress which imparted validity to that constitution, and was so fixed in lieu of and substitution for the 18th day of March, 1868, the day which had been fixed by ordinance No. 32 for the first meeting of the legislature; which last named day had passed before congress ratified the constitution. The act of congress which thus fixed the day, is conceded on all hands to be constitutional, and is therefore paramount to, and supreme over, any State law on that identical subject. The general assembly in 1868 could not unfix the day for its first meeting, because congress had fixed it as aforesaid. The meeting of the legislature on that day was the commencement of the first annual session of the general assembly.

Another fatal objection exists to the validity of the acts of the board of education, as laws “of this State,” or as having “ the force and effect of law;” and it is equally applicable to all its acts and resolutions, whether passed in the summer of 1868 or subseqently. It may be intelligibly stated in the form following, to-wit:

The second section of the fourth article of the constitution explicitly provides, that “ the style of the laws of this State shall be, “ Be it enacted by the general assembly of Alabama.” The fifth section of the eleventh article of the constitution, after first providing that the board of education shall exercise full legislative powers in reference to the public educational institutions of the State, immediately qualifies that language by the following, to-wit: “and its acts,” [that is, the acts of said board of education,] “when approved by the governor, or when re-enacted by two-thirds of the board, in case of his disapproval, shall have the force and effect of law, unless repealed by the general assembly.” Now, here is a plain distinction drawn between those things which really are “ the laws of this State,” and those things which at best can only acquire “ the force and effect of law,” upon the occurrence of one of two well defined contingencies; that is, “ when approved by the governor, or when re-enacted by two-thirds of the board, in case of his disapproval.”

It is not, in all cases, essential to the validity, or efficacy of a bill or resolution which has passed both houses of the general assembly, that the governor’s approval thereto should appear, or should have been, in fact,, given. — See Pamph. Acts of 1868, p. 134. The 16th section of the 4th article of the constitution provides, that “if the bill or resolution shall not be returned by the governor within five days (Sundays excepted) after it shall have been presented to him, it shall have the same force and effect as if he had signed it, unless the general assembly, by its adjournment, prevent its return, in which case it shall not be a law.” There is no like provision in the constitution, as to any act of the board of education. The provision as to acts of that board is quoted above ; the effect of which is, that its acts can in no case acquire even “the force and effect of law,” except “when approved by the governor, or when reenacted by two-thirds of the board, in case of his disapproval.” And this being so, the plain sequence is that no one of its acts can have the force and effect of law, unless it affirmatively appears, either that the governor has actually approved it, or that, after its actual disapproval by him, it was “re-enacted by two-thirds of the board.” The numerous decisions, relating to the presumptions as to validity and jurisdiction which will be indulged where the acts of courts of general jurisdiction are drawn in question, but will not be indulged where the acts of courts of special jurisdiction are drawn in question, furnish the apt illustration of the difference between the acts of the general assembly and the acts of the board of education. As to the acts of the general assembly, the presumption is always in favor of their validity, until the contrary appears. As to the acts of the board of education, there is no presumption in favor of their validity; and they must be treated as invalid unless their validity affirmatively appears.— Thompson v. The Commissioners' Court, 18 Ala. Rep. 694; Mollett v. Keenan, 22 Ala. Rep. 484.

Whoever claims under an act of that board, must plead it, and in his pleading must aver every thing essential to its validity. If he does not allege the facts essential to its validity, he can not be permitted to prove them; nor can the court judicially take notice of any such essential fact, which is not alleged. This rule applies with peculiar force to a motion, made in vacation, to dissolve an injunction upon the mere answer of defendant. On such motion the defendant can not be’ permitted to avail himself of any fact not disclosed on the pleadings. The defendant here has not set up in his answer the facts essential to the validity of the acts of the board.

Another fatal objection to a large number of the acts of the board of education, is the plain disregard by that board of the following unbending rules established by the constitution, to-wit:

1st. “ Each law shall contain hut one subject, which shall be clearly expressed in its title.”

2d. “No law shall be revised or amended, unless the new act contains the entire act revised, or the section or sections amended; and the section or sections so amended shall be repealed.”

The resolutions purporting to be adopted by the board of education, have not even a semblance of validity. There is nothing in the constitution which authorizes the board to pass any resolution which can possibly have the force and effect of law. But, on the contrary, the plain provision of the constitution is, that “the style of all acts of the board shall be” — “Be it enacted by the board of education of the State of Alabama.” In addition to this, the resolutions of the board do not even purport to be approved by the governor. And even its acts do not, as published, appear to have been approved by the governor. They simply purport to be “approved but do not show by whom they were approved. And no presumption can be indulged by the court, that the approval was by the governor.

The only other questions which will be discussed, are— 1st, whether the several acts in relation to the Mobile school commissioners, passed by the general assembly of Alabama before the war, did not amount to a contract which was within the protecting power of that clause of the constitution of the United States which forbids any State from passing any law impairing the obligation of a contract; 2d, whether the success of the defense set up by Putnam’s answer in this case, would not amount to a violation of the 14th amendment of the constitution of the United States, which prohibits a State from depriving “any person of life, liberty, or property, without due process of law,” or from denying “to any person within its ’jurisdiction the equal protection of the laws,” or to a violation of the provision of the constitution of the United States, which forbids the impairing of a contract by any law of a State.

We will not argue at length upon either of these last stated questions. But we respectfully ask the examination of the authorities we cite, to prove that the rights, franchises, and privileges conferred upon the complainant and its officers, are, under the constitution of the United States, as well as of this State, beyond impairment, either by its general assembly or convention ; and a fortiori by the board of education.

“ The incorporated trustees (the school commissioners here are such) form a third party to the contract, which, there being no reservation to that effect, can no more be dissolved or changed, than it could have been originally made, without their consent.” — Abbott’s Digest of Law of Corporations, p. 158, section 128, referring to City of Louisville v. University of Louisville, 15 B. Monroe, 642.

The facts in the case last cited, like the facts in the present case, are essentially different from the facts upon which Trustees of the University of Alabama v. Winston, 5 Stewart and Porter, p. 17, arose and was decided. Conceding this last mentioned case to have been correctly-decided, it can not possibly control the present case, as will become evident upon comparing the grants and facts in the two cases together. The difference between them is clear ; and will be thoroughly seen and felt by an examination of the following authorities, which do apply to and ought to control the present case. — Trustees for Vincennes University v. The State of Indiana, 14 Howard, 276; The Regents v. Williams, 9 Gill and Johnson, 397; Sheriff et al. v. Lowndes, 16 Maryland Rep. 276; Cleveland v. Stewart, 3 Georgia Rep. 283; The Trustees, &c., v. Bradbury, 11 Maine Rep. (2 Fairfield) 119, and cases there cited; Abbott’s Dig. Law of Corp. pp. 160, 161, §§ 138 to 141; Ibid, 165, § 168; Ibid, 157, §§ 115, 116; Ibid, 158, §§ 123, 124; Home of the Friendless v. Rouse, December term, 1869, U. S. Supreme Court; State v. Heyward, 3 Richardson Law Rep. (So. Ca.) 389, and cases there cited.

The corporation which sues in this case, is not strictly a public corporation. In the language of Chancellor Kent: “ To hold a corporation to be public, because the charity was public, would be to confound the popular with the strictly legal sense of terms, and to jar with the whole current of decisions since the time of Lord Coke.” — 2 Kent’s Com;, 9th edition, marg. pp. 275-6, 3U5-6. In those public corporations, which are subject to legislative control, “there is, in reality, but one party, and the trustees or governors of the corporation are merely trustees for the public ;” consequently, there is nothing of contract in them. But in the present case there is a contract; there are grants of property and of franchises, coupled with an interest, not in the children of the State generally, but only in the children of a single county; these grants have been accepted, and these are beyond legislative control. To divest this corporation of such rights, privileges, and immunities, or the children of Mobile of such interest, is the exercise of jtididal power. — 2 Kent’s Com., 9th edition, marg. p. 275, § 306; Town of Pawlet v. Clark, 9 Cranch’s Rep. p. 292; State v. Heyward, 3 Richardson’s Law Rep. p. 389.