Allen v. McKean

STORY, Circuit Justice.

This cause- has been argued with a degree of learning and ability proportionate to its importance. I have taken time to consider it, and propose now to deliver the judgment, which, upon mature deliberation, I feel bound to adopt.

Two questions have been made at the bar. First, whether the present action is maintainable against the defendant, as treasurer, supposing the plaintiff still to be rightfully in office. Secondly, whether the plaintiff is rightfully in office, notwithstanding the act of 1831, and the proceedings of the board thereupon; so that he is entitled to recover the amount of his salary and perquisites, or either, against the college.

A strong desire has been expressed at the bar in behalf of the parties, that the court would not, Sven if it might, confine its judgment to the first question; but that it would proceed to decide the whole merits of the controversy, as essential to the good order and' prosperity of the college, as well as to the rights of the defendant. Under these circumstances, although I am conscious of the delicacy and difficulty of the task, (a task, from which I would gladly have been spared,) I shall express the opinion, which I have deliberately formed upon both the questions in the case without hesitation, but at the same time with all the diffidence, which the magnitude of the interests involved in them cannot fail to create. For the present, I shall pass the question, whether the action is maintainable against the present defendant, and proceed at once to the main points upon the merits. And the first point naturally arising upon the discussion is, in what light the original charter granted by Massachusetts for the establishment of Bowdoin College, is to be viewed. Is it the erection of a private corporation for objects of a public nature, like other institutions for the general administration of charity? Or is it, in the strict sense of law, a public corporation, solely for public purposes, and controllable at will by the legislative power, which erected it, or which has succeeded to the like authority? The former is asserted by the plaintiff’s counsel to be its true predicament; the latter is as strenuously contended for on the other side.

That a college established for the promotion of education, and for instruction in virtue and piety, and in the liberal arts and sciences, is in some sense a public institution or corporation, cannot well be denied; for it is for the benefit of the public at large, or at least for all persons, who are suitable objects of the bounty; and this is the popular sense, in which the language is commonly used. And in this sense an institution founded exclusively by private donors for purposes of general charity, such as a hospital for the poor, the sick, the disabled, or th'e insane, may well be called a public institution. But in the sense of the law a far more limited, as well as more exact, meaning is intended by a public institution or corporation. Upon this subject, however, I may well spare myself from any elaborate exposition, since it was fully considered in the great case of Dartmouth College v. Woodward, 4 Wheat. [17 U. S.] 518, from which I will make a quotation, contained in the opinion of one of the judges, which it is well known had the approbation of the court: • i-ublic corporations,” says the opinion, “are generally esteemed such as exist for public political purposes only, such as towns, cities, parishes, and counties; and in many respects they are so, although they involve some private interests. But, strictly speaking, public corporations are such only, as áre founded by the government for public purposes, where the whole interests belong also to the government. If, therefore, the foundation be private, though under a charter of the government, the corporation is private, however extensive the uses may be, to which it is devoted, either by the bounty of the founder, or the nature and objects of the institution. For instance, a bank created by the government for its own use, whose stock is exclusively owned by the government, is. in the strictest sense, a public corporation. So is a hospital created and endowed by the government for general charity,” (meaning, as is obvious from the context, a hospital like the Navy Hospital, or the General Marine Hospital, established and supported by the United States out of its own funds, and over which it retains the entire government.) “But a bank, whose stock is owned by private persons,” (and it might have been added, partly by private persons and partly by the government.) "is a private corporation, although it is erected by the government, and its objects and operations partake of a public nature. The same doctrine may be affirmed of insurance, canal, bridge, and turnpike companies. In all these cases the uses may, in a certain sense, be called public; but the corporations are private; as much so, indeed, as if the franchise were vested in a single person.” “This reasoning applies in its full force to eleemosynary corporations. A hospital, founded by a private benefactor, is in point of law a private corporation, although dedicated by its charter to general charity. So is a college, founded and endowed in the same manner, although, being for the promotion of learning and piety, it may extend its charity to scholars from every class of the community, and thus acquire the character of a public institution. This is the unequivocal doctrine of the authorities; and cannot be shaken, but by undermining the most solid foundations of the common law.” It is afterwards added: “The fact, then, that the charity is public, affords no proof, that the corporation is also public; and consequently the argument, so far as it is built upon this foundation, falls to the ground. If, indeed, the argument were correct, it would follow, that almost every hospital and college would be a public corporation, a doctrine irreconcilable with the whole current of decisions since the time of Lord Coke.” And it is further stated, that no authority exists in the government to regulate, control, or direct a corporation, or its funds, “except where the corporation is in the strictest sense public; that is, where its whole interests and franchises are the exclusive property and domain of the government itself.” See [Dartmouth College v. Woodward.] 4 Wheat [17 U. S.] 668-672.

That a college, merely because it receives a charter from the government, though founded by private benefactors, is not thereby constituted a public corporation, controllable by the government, is clear beyond any reasonable doubt. So the law was understood by Lord Holt, in his celebrated judgments in Philips v. Bury, 1 Ld. Raym. 8, 2 Term. R. 346. Lord Hardwieké, in Attorney General v. Pearce, 2 Atk. 87, said; “The charter of the crown cannot make a charity more or less public, but only more permanent than it would otherwise be.” And the decision of the supreme court, m the case of Dartmouth College v. Woodward. is direct to the same purpose.

Nor does it make any difference, that the funds have been generally derived from the bounty of the government itself. The government may as well bestow its bounty upon a private corporation for charity, as upon a public corporation; and its funds once bestowed upon the former become irrevocable, precisely in the same manner, and to the same extent, as if they had been bestowed upon an individual. The government cannot resume a gift, once absolutely made to a private person; neither can it resume a like gift to a private corporation. It is true, that the government may reserve such a power in granting a charter, if it chooses so to do; but, then, the power arises from the very terms of the grant, and not from any implied authority derived from the bounty being for general charity, any more than it would from its being for private charity.

! The government may reserve a right to revoke at pleasure even its private gifts; but certainly the law will not imply such right without some positive expression of such an intention. Mr. Chancellor Kent has stated the true principles of law on this subject, with his usual accuracy and clearness; “An eleemosynary corporation,” (says he,) “is a private charity, constituted for the perpetual distribution of the alms and bounty of the founder. In this class are ranked hospitals for the relief of poor, sick, and impotent persons, and colleges and academies established for the promotion of learning and piety, and endowed with property, by public and private donations.” 2 Kent, Comm. (2d Ed.) Lect. 23, p. 274. To be sure, where the government is the founder of a college, it has certain rights and privileges attached to it in point of law; but in this respect it is not distinguishable from any private founder. Every founder of an eleemosynary corporation, (that is, the fundator perficiens, or person, who originally gives to it its funds and revenues,), and his heirs, have a right to visit, inquire into, and correct all irregularities and abuses, which may arise in the course of the administration of its funds, unless he has conferred (as he has a right to do) the power upon some other person. This power is commonly known by the name of the visitatorial power, and it is a necessary incident to all eleemosynary corporations; for, these corporations being composed of individuals, subject to human frailties, are liable, as well as private persons, to deviate • from the end of their institution; and therefore ought to be liable to some supervision ■ and control. 1 Bl. Oomm. 480. But, what is the nature and extent of this visitatorial power? Is it a power to revoke the gift, to change its uses, to devest the rights of the parties entitled to the bounty? Certainly not It is a mere power to control and arrest abuses, and to enforce a due observance of the statutes of the charity. Lord Holt,, in Philips v. Bury, 2 Term K. 352, says: “The visitatorial power is an appointment . of law. It ariseth from the property, which the founder had in the lands assigned to support the charity; and, as he is the au- . thor of the charity, the law gives him and . his heirs a visitatorial power, that is, an authority to inspect the accounts, and regulate the behavior of the members, that partake of the charity; for it is fit the members, that are endowed, and that have the charity bestowed upon them, should not be left to themselves, (for divisions and contests will arise amongst them about the dividend of the charity,) but pursue the intent and design of him that bestowed it upon them.”

But the founder may part with his visita-torial power, and vest it in other persons; and when he does so, they exclusively succeed to his authority. No technical terms are necessary to assign over, or vest the visita-torial power. It is sufficient, if, from the nature of the duties to be performed by particular persons under the charter, it can be’ inferred, that the founder meant to part with it in their favor; and he may divide it among various persons, or subject it to any modification or control by the fundamental statutes of the foundation.² Now, it is a general rule in the construction of charters, that if the objects of the charity are not incorporated, but certain trustees are incorporated to manage the charity, the vis-itatorial power is deemed to belong to such trustees in their corporate capacity.³ And »so the law is laid down by Lord Holt in Philips v. Bury, 2 Term R. 352, 353. This vis-itatorial power is an hereditament, founde'd in property, and valuable in the intendment of law; and where it is vested in trustees, there can be no amotion of them from their corporate capacity, and no disturbance or interference with the just exercise of their authority, unless it is reserved by the statutes of the foundation or charter. But, still, as managers of the revenues of the charity, they are not beyond control; but are subject to the general superintendence of a court of chancery, for any abuse of their trust in the management of it. If, with these principles in view, we examine the charter of Bowdoin College, we shall find, that it is a private and not a public corporation. It answers the very description of a private college, as laid down by Mr. Chief Justice Marshall, in Dartmouth College v. Woodward, 4 Wheat. [17 U. S.] 640, 641. It “is an eleemosynary institution, incorporated for the purpose of perpetuating the application of the bounty of the donors to the objects of that bounty. Its trustees were originally named by the founder, and invested with the power of perpetuating themselves. They are not public officers; nor is it a civil institution; but a charity school, or a seminary of education, incorporated for the preservation of its property, and the perpetual application of that property to the objects of its creation.” The commonwealth of Massachusetts is its founder, having given it its original funds. But it is made capable of receiving, and has actually received, funds from the bounty of private donors. As founder, the commonwealth of Massachusetts would have possessed the visitatorial power, if it had not intrusted that, and all other powers, and franchises, and rights of property of the college, to the boards of trustees and overseers established by the charter, and in the manner therein stated. As soon as that charter was accepted, and carried into operation, by the trustees and overseers named in it, they acquired a permanent right and title in their offices, which could not be devested, except in the manner pointed out in that charter. The legislature was bound by the act; they could not resume their grant; and they could not touch the vested rights, privileges, or franchises of the college, except so far as the power was reserved by the 16 th section of the act. The language of that section is certainly very broad; but it is not unlimited. It is there declared, that the legislature “may grant further powers to, or alter, limit, annul, or restrain any of the powers by this act vested in the said corporation, as shall be judged necessary to promote the best interest of the college." Whatever it may do, then, must be done to promote the best interest of the college. It is true, that it is constituted the sole judge, what is the best interest of the college; but still it cannot do any thing pointedly destructive of that interest. Its authority is confined to the enlarging, altering, annulling, or restraining of the powers of the corporation. It cannot intermeddle with its property; it cannot extinguish its corporate existence; it cannot resume all its property, and annihilate all its powers and franchises. The legislature must leave its vitality and property, and enable it still to act as a college. It cannot remove the trustees, or overseers, though it may abridge, as well as enlarge, their powers. At least, any argument, which should attempt to establish a different doctrine, must proceed upon the difficult assumption, that a power “to promote the best interest of the college,” included a power to destroy all its interests, nay its very existence. But it is unnecessary to enlarge upon this topic, since the present case does not rest upon the effect •of this clause of the original charter. The act of separation, which is constitutionally ■binding upon the legislature of Maine, gives, as we have seen, a complete guaranty to the powers and privileges of the president, trustees, and overseers, under the charter; so that they are incapable of being altered, limited, annulled, or restrained, except by judicial process according to the principles of law, unless that act has been modified by the subsequent agreement of the legislatures of both states.

.The next inquiry naturally is, whether any such modification has been made, as is contemplated by the act of separation. If it has, another inquiry will be, what is the true extent of the modification actually made and authorized. The resolve of the legislature -of Massachusetts was passed, as we have seen, •on the 12th day of June, 1820. After reciting the clause in the act of separation, above referred to, and the petition of the trustees and overseers of Bowdoin College for such a modification of that clause, as would enable the legislature of Maine to make donations, grants, and endowments to the college, it is .resolved, “That the consent and agreement of this commonwealth be, and the same is hereby, given to any alteration or modification of the aforementioned clause or provision in said act relating to Bowdoin College, not affecting the rights. or interests of this commonwealth, which the president and trustees, and overseers of the said college, or others having authority to act for said corporation, may make therein with the consent of the legislature of said state of Maine; and such alterations or modifications, made as aforesaid, are hereby ratified on the part of this ■commonwealth.” Now, whether this resolve is exactly in conformity to the petition of the trustees and overseers, and carried into effect their objects, or not, is a point wholly unnecessary to be here discussed; for the state of Massachusetts had a right to prescribe such terms, as it pleased; and was not bound to grant what was asked, but what it deemed in its discretion fit to be granted. We must, then, construe the resolve, as we should any other solemn act of legislation, according to its true intent to be collected from its terms. Now, it is very clear, that Massachusetts was not willing to make an unconditional surrender of all rights and interests under the charter to the legislature of Maine; for an express exception or reservation is made of alterations or modifications “affecting the rights and interests of the commonwealth,” under the clause of the act of separation. The very exception or res-ervation supposes, that there are some rights and privileges and interests of the commonwealth, arising under the charter; for otherwise the language of the exception or reservation would be useless, if not absurd. Nor is it difficult to perceive, that the commonwealth of Massachusetts had rights, privileges, and interests, which might be affected by certain alterations of the charter. In the first place, the commonwealth was the founder of the college, and had given certain lands to be appropriated to the uses of the charity. It had a right and interest in having these funds perpetually applied to the original objects of the institution. As founder, too, it was entitled to the visitatorial power over the college; and having delegated that power to certain trustees and overseers in perpetual succession, as its chosen, substituted agents and visitors, it had also a right and interest in having that power perpetually exercised by the very bodies, and by none others, which it had constituted for this purpose. Nothing is clearer in point of law, than the right of a founder to have his visitatorial power exclusively exercised by the very functionaries, in whom he has vested it. It is the very substratum of his dotation.

This is not all. The founder has a right to have the statutes of his foundation, as to the powers of the trustees, strictly adhered to, except so far as he has consented to any alteration of them. But an authority to alter or modify those powers can never be fairly construed into an authority to take them away from his trustees, and confer the same powers on other persons. My view of this resolve, therefore, is, that it authorizes no alterations or modifications of the college charter, which shall divert the funds of the founder from their original objects, or shall vest the visitatorial power in any other bodies, or persons, than the trustees and overseers marked out in the original charter; and a fortiori, that it does not justify the transfer of these powers from the trustees to any other persons not in privity with them. It does not authorize the legislature of Maine to assume to itself the powers of the trustees, or overseers, or either of them, or to appoint new trustees or overseers; for that would affect the rights and interests of the founder, who has a right to select his own administrators of his own bounty in perpetuity. I do not say, that the legislature of Maine might not have authorized an increase of the number of both boards, leaving the appointment to be made by the existing boards; for that would still leave the funds to be administered by agents selected by the proper visitors of the founder. Upon that point I give no opinion. What I do mean to say is, that the legislature of Maine was not authorized by this resolve of Massachusetts to affect the rights and interests of the latter state, by making appointments of trustees and overseers of the charity through its own. agency, and independent of the agency of the charter trustees, and overseera Massachusetts has nowhere therein given any assent to such an alteration or modification of the charter of the college.

Eut this is not alL The language of the resolve is, that Massachusetts assents and agrees to any alteration and modification, “which the president and trustees, and overseers, of said, college may make therein, with the consent and agreement of the legislature of said state of Maine; .and such alterations or modifications, made as aforesaid, are hereby ratified on the part of this commonwealth.” Now, I confess, that I think there is great force in the argument, that this resolve had in view certain alterations and modifications, then to be made, uno flatu, and not any subsequent alterations and modifications, which might from time to time, and in all future times and ages, be made in the charter. It is scarcely conceivable, that Massachusetts should use terms of ratification in presentí, as applicable to all such possible alterations in all future times. That was not necessary to accomplish the objects of the petitioners. A single alteration or modification, which should confer upon the legislature of Maine the authority required by the constitution to authorize any donation, grant, or endowment of that legislature to the college, would have been sufficient, without any general and sweeping authority for unlimited changes. But, be this as it may, it is very clear, that Massachusetts has not assented or agreed to any alterations or modifications, which the legislature of Blaine might in virtue of its own sole authority make, but to such only, as the president and trustees, and overseers, of the college may make with the consent and agreement of the legislature of Maine. The alterations •and modifications are, then, to be made by the boards of the college, or by their agents, with the consent of the legislature, and not by the legislature without their consent. It short, the alterations or modifications are to originate with the boards, and to be made by them; but they are inoperative, unless ratified by the legislature. If,, therefore, the legislature of Blaine has undertaken to make laws, altering or modifying the charter of the college, without making the validity of such laws dependent upon the adoption of the boards before or after their passage, I have no hesitation in saying, that such laws have never been assented to by Massachusetts, and are, consequently, unconstitutional and void.

But let us see, whether the legislature of Maine has adopted this resolve of Blassachu-setts; for there must be a concurrence of the legislatures of both states ad idem, to repeal or modify the clause in the act of separation. It is very certain, that the legislature of Maine has passed no correspondent resolve or act, in totidem verbis, nor has it in terms assented or agreed to the resolve of Blassachusetts. How, then, can the resolve have any operation? The act of separation declares, that the fundamental articles, the terms and conditions of the separation, shall be, ipso facto, incorporated into the constitution of Blaine, “subject, however, to be modified or annulled by the agreement of the legislatures of both the said states.” To constitute such an agreement, both parties must assent to the same thing. The whole proposition must be adopted, or nothing. From- the very nature and force of the term, an agreement can be but one thing; and in that one thing,- both parties must concur. If, then, Blassachusetts and Blaine have not agreed to the same identical thing, the casus foederis has not arisen. Indeed, I am inclined to go much farther. I do exceedingly doubt, if any modification or amendment can be made in any of these fundamental articles, without the specific modifications' or amendment being drawn out, and expressly assented to by both states. I do not think, consistently with the letter or spirit of the qualifying or enacting clause, that the legislature of either state can delegate to other persons its authority to assent to, or frame, any such agreement. It cannot agree, ab ante, to any modifications or amendments, which third persons may make. It must agree to some specific proposition, purporting to be its own final act in the premises.

But, it is argued, that the act of Blaine of the 16th of Biarch, 1820, (which was passed four days after the Massachusetts resolve,) contains a virtual assent to that resolve, and that therefore there has been a sufficient compliance with the requisites of the articles of separation. Let us see, then, what the purport of that act is. It is entitled “An act to modify and limit the terms and conditions of the act of separation, relative to Bowdoin College, and encourage literature, and the arts and sciences;” and it enacts, “that, provided the legislature of Blassachu-setts shall agree thereto, the president and trustees, and the overseers, of Bowdoin College having already assented thereto, the terms and conditions mentioned in the act of the commonwealth of Blassachusetts, passed on the 19th of June, A. D. 1819, entitled, &c., be and the same hereby are so far modified, limited, or annulled, as that the president and trustees, and the overseers, shall have, hold, and enjoy their powers and privileges in all respects, subject, however, to be altered, limited, restrained, or extended by the legislature of the state of Blaine, as shall by the said legislature be judged necessary to promote the best interests of said institution.” Now, it seems to me, that this act is precisely in the form contemplated by the act of separation, in order to justify a modification of the charter. It presents a specific alteration for the consideration and agreement of Blassachusetts; and thus affords a very strong confirmation of the view, which has been already taken of this point by the court. The act is to take effect, and the modification is to be incorporated into the charter, provided the legislature of the commonwealth of Massachusetts shall agree thereto, that is, to the specific modification’ proposed in the act. Now, it is certain, that the act of Maine, or the specific modification of the charter therein proposed, has never been agreed to by the legislature of Massachusetts. The act has never, as far as any of us know, been laid before the legislature of Massachusetts, either for consideration or for confirmation. The act does not look to any antecedent resolve of Massachusetts, and dispense with any farther assent; but it expressly looks to some future act or assent of Massachusetts. The language is, provided the legislature shall agree thereto, not has agreed thereto. Nor is this a mere matter of form. It is, in my judgment, a matter of substance, and was so rightly understood by the legislature of Maine, as indispensable to the constitutional efficacy of the act of 1820. In no just sense can this act be construed to be an adoption of the Massachusetts resolve. The terms are not the same; the objects are not the same; the limitations are not the same. Massachusetts signifies her assent to any alteration or modification “not affecting the rights and interests of this commonwealth.” No such qualification or limitation is to be found en-grafted on the act of Maine. The latter saves no rights and no interests of Massachusetts. Massachusetts signifies her assent to any alterations, &c., which the president, trustees, and overseers, &c., may make in the charter, with the consent and agreement of the legislature of Maine. The act of the latter assents to no such general authority; but confines itself to a single proposition; and that conceived almost in the very terms of the eighth article of the constitution of the state. It is impossible, therefore, in an exact and legal sense to assert, that the resolve of Massachusetts, and the act of Maine, speak ad idem. The proposition of neither legislature has been specifically acted upon by the other. There has been a miscarriage of the parties, unintentional, in all probability, but not, in my judgment, the less-fatal on that account.

But although I am clear in this opinion, it is not my intention to rest the present case upon this ground alone, though it seems to me impregnable. There is another point of view in which the constitutional doctrine is equally clear, and equally fatal. Let it be conceded, that the act of Maine of the 16th of June, 1830, is constitutional, and has become incorporated into the charter of the college, and there yet remains a very important inquiry; what is the true extent of the authority of the legislature conferred by that act over the college? The words are, that “the president and trustees, and the overseers, of Bowdoin College shall have, hold, and enjoy their powers and privileges in all respects, subject, however, to be altered, limited, restrained, or extended by the legislature, &c., as shall, &c., be judged necessary to promote the best interests of said institution.” In the first place, it is clear, that this language can by no reasonable, indeed, I may say, by no possible interpretation be construed to include an authority to annul the charter, or the corporation created by it, or the institution itself. The word “annul” is not in it, as it was in the sixteenth section of the original charter of 1794; but the other words of that section are retained, except that the word “extend” is substituted for the word “grant.” This alone would furnish an almost irresistible argument, that the authority to annul was intended to be withheld from the legislature. But the words of the section' in their actual connexion exclude any authority to annul the charter. It would be utterly repugnant to all common sense to say, that an annihilation of the college would be an act to promote its “best interests.” The authority is also limited in other respects. It is not an authority to alter, limit, restrain, or extend the charter generally; but only to alter, limit, restrain, or extend the powers and privileges conferred by the charter on the president, trustees, and overseers, as may be judged necessary to promote the best interests of the institution. The act, then, does not authorize the creation of new boards, in whom the corporate powers and privileges may be vested; nor any transfer whatsoever to other persons of the powers and privileges of the old boards. The powers and privileges of the existing boards may be extended or restrained, limited or altered; but they cannot be transferred over to other persons; for that would be an act of a very different character. Whatever powers and privileges are allowed by the legislature to be exercised for the promotion of the best interests of the institution, are to be exercised by the charter boards. No authority is conferred upon the legislature to add new members to the boards by its own nomination or by that of the governor and counsel of the state. That would be an extension not of the power and privileges of the boards, but of the legislative action over them. If the legislature could add one new member of its own choice or appointment, and not of the choice or appointment of the charter boards, it could add any number whatsoever, five, or fifty, or five hundred. It could annihilate the powers and privileges of the charter boards, under the pretence of alteration or extension. It will hardly be contended, that the legislature possesses a right to substitute itself in the management of the college and its interests, for the charter boards; and if not, how can it confer such an authority upon other persons? The president, trus-tées, and overseers are to “hold and enjoy their powers and privileges in all respects, subject,” &c. &c. But how can they hold or enjoy any such- powers or privileges, If these are liable to be transferred to any other persons, and taken from themselves V If snch had been the intent of the parties, other language would have been used;1 the charter, the college, and the boards would have been made subject to the pleasure of the legislature. The power to annul and transfer the powers and privileges would have found its way into the act in a clear and determinate manner. I agree, that the legislature might authorize an enlargement of the boards, by the appointment of new members to be nominated by the boards; for it would be but an enlargement of the powers and privileges of the existing boards. But it is morally impossible, as I think, to ingraft upon the terms of the act an authority in the legislature to make, of itself, new boards, or to change the whole organization of the old boards, by the addition-of members not chosen by those boards. I am, not prepared, therefore, to admit, that the act of the 19th of March, 1821, enlarging the boards, or the act of the 27th of February, 1826, making the governor, ex oficio, a member of the board of trustees, can be maintained as constitutional- exercises of authority. I do not say, that the proceedings of the boards, as actually constituted since the passage of those acts, are void. That is a very different question, turning upon very different considerations. There is a marked distinction in the law, which allows the acts of many officers de facto to be good, although they may not be officers de jure, or regularly elected. The present ease is quite • enough loaded with difficulties for the court not to desire to plunge into that point, although, from the strong desire expressed, and the discussions pressed at the bar for an opinion upon this point, it has not been very easy wholly to avoid it.

Let us see, then, how far the act of the 31st of March, 3S31, is affected by any of these considerations. It is in its terms ¡in act of positive and direct legislation. It legislates the existing presidents of Bowdoin and Waterville Colleges (the only colleges in the state) out of office from and after the next annual commencement of the colleges. It is a direct exercise of the power of amotion from office by the legislature itself. That very power was expressly and exclusively conferred upon the college boards by the original charter. Massachusetts has never consented, that it should be taken away from those boards, and be exercised by the legislature of Maine; for it is an alteration or modification “affecting the rights and interests of that commonwealth,’’ in regard to those very boards. The act of Maine of June, 1820, has not conferred this power on the legislature; for that act authorizes no transfer of any of the powers of the boards to the legislature, or to any other persons. It would have been quite a different question, - if the legislature had undertaken merely to-alter the term of office of the future presidents chosen by the boards, with a grant of power to remove such future- presidents at the pleasure of the boards. The wisdom of such a provision might be more than doubtfuL The authority to make it, might perhaps be more clear. But it is said, that the boards have assented to the act, and have adopted it; and it has, therefore, become binding upon the college. I think, that the argument is not correct. The boards have not adopted it; they have merely “acquiesced” in it, a phrase evidently chosen, ex industria, by the boards, as expressive of mere submission to the legislative will, and not of approbation; a course, which might naturally be adopted to avoid a direct collision with the legislature, and as a respectful appeal for a future revision of the act by the legislature itself. But if the acquiescence of the boards could be construed into an approval of the act, (as, I think, it ought not to be,) still, that approval cannot give effect to an unconstitutional act. The legislature and the boards are not the only parties in interest upon such constitutional questions. The people have a deep and vested interest in maintaining all the constitutional limitations upon the exercise of legislative powers; and no private arrangements between such parties can supersede them. Independent, however, of this general ground,, there is another of great weight and importance; and that is, that President Allen was in office under a lawful contract made with the boards, by which contract he was to hold that office during good behavior, with a fixed salary and certain fees annexed thereto. This was a contract for a valuable consideration, the obligation of which could not, consistently with the constitution of the United States, be impaired by the state legislature. The act of 1831 directly impairs the obligations of that contract. It, ipso facto, takes away from President Allen the tenure by which he held his office; and removes him from it. Now, it was as little competent for the legislature to exercise this authority, as it was for the boards of the college. The president, holding his office during good behavior, could not be removed from office, except for gross misbehavior; and then only by the boards, in the manner pointed out in the original charter. It is no answer to say, that the president personally assented to the proposition to clothe the legislature with an authority of this sort, in futuro. However indefensible any act might be on his part, by which he should surrender for all his successors the tenure of office during good behaviour, which he should yet retain for himself, (a design which I am very far from imputing to him;) still the act of June, 1820, could in no legal sense be construed to apply to past contracts. It could operate only in relation to powers to be exercised by the boards, in futuro. And, at all events, lie has not assented to the act of 1831; and has resisted it, as in his opinion oppressive, vindictive, and unconstitutional.

In every view, therefore, in which I have been able to contemplate this subject, it seems to me, that the act of 1831 is unconstitutional and void, so far as it seeks to remove President Allen from office. The legislature could not constitutionally deprive him of his office, or of his right to the salary and perquisites annexed thereto.

The other question in the case is of minor importance to the parties; but still in a legal point of view it is entitled to grave consideration. Prom what has been already stated, President Allen is de jure in office; and as there is no pretence to say, that he has not always been ready to perform the duties of his office, he is entitled to recover against the corporation the entire emoluments, annexed by his contract • to the office at the time, when he accepted it, or which have since been annexed to it. But the present suit is not brought against the corporation. It is against the treasurer of the corporation personally, as having received money for the use of the plaintiff. To justify a recovery, then, it must be clearly made out, that there is in his hands money, which has been specifically appropriated to, and belongs to the plaintiff, as president of the college. As to this part of the case, there may arise a distinction between the salary, and the fees of office. Since the college commencement in 1831, no money has come into the hands of the treasurer, which by any order of the board has been specifically directed to be paid to the president of the college, eo nom-ine, or to the plaintiff. Before that period the salary, was payable quarterly, and was accordingly paid by the treasurer, under the general vote of the board already stated, it was a duty incumbent upon him so to do, in order to carry that vote into effect; and if funds existed in his hands sufficient for the purpose, there was an implied appropriation of those funds for that purpose. But the acquiescence of the boards at that period in the act of the legislature of 1831, and their information to the plaintiff of that acquiescence, and their proceeding to elect a new president, (though ineffectual,) amounts, as I think, to an implied revocation of the authority to pay over any future salary to the plaintiff, as president. They treated him, as no longer in office, and had a right to take from their treasurer (who is but their agent) the authority to pay to the plaintiff any farther salary, and to assume upon themselves all the consequences of a breach of their contract.. But as to the fees for academical and medical degrees, the posture of the case is somewhat different, it is true, that the act of 1831, in the second section, declares, that the fees paid for degrees shall thereafter be paid into the treasury for the use of the college. But, so far as regarded the plaintiff, who, by his contract and the by-laws, was entitled to those fees, the act was inoperative. Besides, the boards have never acquiesced de-facto in this part of the act. On the contra--ry, in September, 1832, there was an express' refusal to change the former by-laws, by-which “candidates for either degree shall pay five dollars each to the treasurer for the' use of the president;” so that those by-laws,at least so far as the plaintiff is concerned,' remain unrepealed; and the fees received' by the treasurer for such degrees, have been' expressly received by him for the use of the' president. They are strictly money had and received for his use; and as the plaintiff still continues de jure president, he is entitled-to them, unless there is some stubborn rule of law, which stands in his way.

It is a very clearly established principle of law, that if one man receive money, which ought to be paid to another, or belongs to. him, this action for money had and received will lie in favor of the party, to whom. of right the money belongs. So it is laid down by Lord Chief Justice Willes, in Scott v. Surman, Willes, 400;⁴ and the doctrine has ever since been adhered to. Nor is there any difficulty in maintaining such a suit, simply because it involves a trial of the title to office, If the party has once been in possession. Upon this point nothing more is necessary than to refer to Arris v. Stukely, 2 Mod. 260, and Boyter v. Dodsworth, 6 Term R. 681.⁵ It seems to me, therefore, that, as, to the fees actually received for degrees by-the treasurer for the president, the suit is maintainable, and, as to the salary, not.

I have now finished all that is necessary to be said for the decision of this cause. But I cannot dismiss it without expressing my regret, that it has ever come before the court, and that I have been deprived of the assistance of my learned brother, the district judge, in deciding it. If this court were, permitted to have any choice, as to the causes,' which should come before it, this is one of the last, which it would desire to entertain. But no choice is left. This court is bound to a single duty, and that is, to decide the causes brought before it according to law,, leaving the consequences to fall as they may. It is impossible, in any aspect of the case,' not to feel that the decision is full of embarrassment. On the one hand, the importance of the vested rights and franchises of this literary institution has not been exaggerated; and on the other hand, the extreme difficulty of successfully conducting any literary institution without the patronage and cordial support of the government, and under a head, who may (however undeservedly) not enjoy its highest confidence, is not less obvious. But these are considerations proper to be weighed by others, who possess a discretion and voice in a fit adjustment of controversies of this sort. To the court is left the humbler, but unenviable task of pronouncing a judgment, such as a just reverence for the law, and a conscientious discharge of its duty, impose upon it.

The verdict taken for the defendant must, pursuant to the agreement of the parties, be set aside, and a verdict entered for the plaintiff, for such a sum, as shall be ascertained by an auditor to be appointed by the court, as due to him for the fees for degrees, received by the defendant for the use of the president.

2 Dartmouth College v. Woodward, 4 Wheat. [17 U. S.] 675; Philips v. Bury, 2 Term R. 350, 352, 353.

3 Id.; Green v. Rutherforth, 1 Ves. Sr. 472; Attorney General v. Middleton, 2 Ves. Sr. 327; Case of Sutton’s Hospital. 10 Coke, 23, 31; 2 . Kent, Comm. (2d. Ed.) p. 300, § 23 et seq..

4 See, also, Woodward v. Aston. Freem. 429; Mayor of London v. Gorey, Id. 433; Howard v. Wood, Id. 474, and note of Mr. Smirke.

5 Green v. Hewett, Peake, N. P. 182; Rains v. Commissary of Canterbury, 7 Mod. 147; Bowell v. Milbank, 1 Term R. 399, note; Sadler v. Evans, 4 Burrows, 1984; Drew v. Fletcher, 1 Barn. & C. 283; Lightly v. Clouston, 1 Taunt. 115. per Heath J.; Hall v. Marston, 17 Mass. 575; Hearsey. v. Pruyn, 7 Johns. 179, 182.