of the new trustees created under the statute in dispute. (Bell and Woodbury were graduates of Dartmouth.) They viewed the New Jersey Tax case and the Georgia Land case as founded on express contracts as to private property; and considered that the contract clause of the constitution was not intended to limit the power of the state in respect to one of its own civil institutions, such as they held the college charter to be. The application by the Federal court of the constitutional restriction to charters of incorporation by construing them to be contracts within the meaning of the constitution, was, said Judge Bradley, in 1878 (Sinking Fund cases, 99 U. S. 748) a surprise to many statesmen and jurists of the country, and operated to deprive the states of nearly all control over corporations of their own creation, and induced a liberal construction of reservations of power to alter, amend, or repeal. The New Hampshire court did not by any means deny that a legislative act, which takes away any powers vested in a corporation, conceded to be private, or which assumes to control the exercise of such powers, or which transfers them to others unlawfully, impairs the obligation of the charter; that is to say, where the corporators do not assent, and where power to alter, amend, or repeal has not been reserved; nor has any state tribunal taken that ground, so far as I am aware.

Those opposed to the College case have always claimed that the denial by the Federal court of the public character of the corporation was in contravention of a doctrine essential to the harmonious working of two sets of courts over the same population and territory; a doctrine embodied in section 34 of the judiciary act and now standing as section 731 of the U. S. Revised Statutes, by enacting that state laws are rules of decision in the Federal courts. It was claimed that the construction of the state statute by the highest court of the state is a part of the state statute itself. The Federal court admits that ordinarily such construction is conclusive upon it (Wright v. Nagle, 101

U. S. 793, 1879); but it creates the single exception that, although the state court has construed the state statute as not containing a contract, the Federal Supreme court is at liberty to give a different construction and to find a contract. (Jefferson Bank v. Skelly, 1 Black 436, 1861; L. & N. R. R. v. Palmer, 109 U. S. 244, 256, 1883; M. & O. R. R. v. Tenn., 153 U. S. 486, 492-5, 1894.) This last decision was unanimous on this point, only last year; and undoubtedly the doctrine will never be abandoned.

In Farrington v. Tennessee (1877, 95 U. S. 679, 685) the court said that the point decided in the College case has been considered as settled in the jurisprudence of the entire country, and that although murmurs of doubt and dissatisfaction are occasionally heard, no re-argument has ever been asked for. The College charter was treated the same as if it had been a legislative act of the state. (N. O. Water Works v. Louisiana Sugar Co., 125 U. S. 18, 1887.) The Federal court has gone further yet, and holds that after a state statute has been settled by judicial construction in the state court, a change of such construction is the same in its effect upon contracts, as a legislative amendment. (Louisiana v. Pillsbury, 105 U. S. 295, 1881.) The ground upon which the Federal court proceeds, is, that it cannot enforce the constitutional clause without determining for itself whether a contract exists.

It thus appears that the status of the College case is absolutely unchanged at the present time, upon the fundamental point of the power of that court to discover a statutory contract, where both a state legislature and a State Supreme court deny the existence of any contract at all. Upon this point Judges Miller, Chase, and Field said, in their dissent, in Washington University v. Rouse (8 Wallace 442, 1869), that they must be permitted to say, that in deciding the validity of a contract, the court has been quick to discover a contract that it might be protected, and slow to perceive that what was claimed to be a contract

was not so, by reason of the want of authority in those who profess to bind others; and that this had been particularly so in regard to contracts by legislatures and municipal bodies. This dissent was in a case where a legislature had exempted a college from taxation; and, twelve years later, a tax had been imposed. The exemption was not declared in the charter to be perpetual, and the state relied upon the Charles River Bridge case. Curtis, for the exemption, relied upon the College case. The dissenting judges declared that the principle with respect to power to exempt from taxation must finally be abandoned, because rich corporations and individuals make contracts with the legislatures, using such appliances as is known they do use, to obtain exemption from the burden of supporting the government.

It was not at all foreseen that the court would carry the principle of searching for a contract into the domain of business corporations to the extent that this has been done in later years. Two conflicting opinions have been entertained by the profession and the community, with respect to this. One view is that the College case, as applied, beneficially supports exclusive rights, granted to some, and denied to others, for the general good. The other view is, that it strengthens odious monopolies, conferred upon the few at the expense of the many.

The court has always taken the terms of the constitutional clause in their ordinary meaning, and holds the word contract in the constitution to mean an agreement by two or more individuals, or between a state and a person or corporation, for a consideration, to do or not to do certain acts. (Louisiana v. Mayor, 109 U. S. 285, 8, 1883; Murray v. Charleston, 96 U. S. 432, 444, 1877; Royal v. Virginia, 116 U. S. 592, 1885.) In one instance a contract in writing had been drawn up and signed by the presiding officers of the two houses of the legislature on the one part, and by the president and

secretary of a railroad company on the other part, concerning a certain sort of taxation. And in the case of a private corporation, the future and continuous performance of the duties imposed by the charter is held to be a consideration.

In a recent important case, the Chicago Lake Front case (146 U. S. 387, 1892) the majority of the court declined to apply the principles of the College case, because the subject matter of the undisputed contract which was conceded to be contained in the charter, was beyond the power of the legislature. The railroad company relied upon the act of Illinois of 1869, granting submerged lands in the harbor of Chicago. This act had been repealed by a later act of 1873. Three dissenting judges applied the College case, and declared that the later act was an arbitrary act of revocation, not passed in the exercise of any reserved power, and was therefore void as impairing the obligation of the act of 1869, which they affirmed to be a contract, and which was. The majority upheld the act of 1873, upon the ground of the incapacity of the state to make an irrepealable contract by conveying lands which it held in trust for the public, as submerged lands are held. This case is a good illustration both of the enormous interests which may depend upon the application of the College case, and of the astuteness with which it may be distinguished, when likely to work public harm. The court did not by any means deny the College case, but merely held that trust property could not be conveyed by the state.

It is declared that although a state may abdicate or bargain away its taxing power, to a certain extent, it cannot abdicate or bargain away its governing power over the public health and public morals. The constitutional restriction against modification or abrogation of a contract made by a state does not extend to legislation affecting those subjects, so as to limit the future exercise of legislation over those subjects. This power, it is declared, was originally possessed by the States, and has not been taken away by the constitu

tion, or by any of the amendments. This principle is of the greatest importance and has been applied in many cases; for example, the charter of a lottery company may be amended without its consent. So may the charter of a beer manufacturing company be interfered with; or the charter of a bone factory; or a monopoly of the slaughtering of cattle. (Boyd v. Alabama, 94 U. S. 645, 1876; Beer Co. v. Mass., 97 U. S. 25, 1877; Stone v. Mississippi, 101 U. S. 814, 1879; Fertilizing Co. v. Hyde Park, 97 U. S. 689, 1877; Butchers Union v. C. C. Co., 111 U. S. 746, 1883.)

Some of the judges declare, that the police power is no more sacred than the taxing power; and no more the exercise of the governmental function than is the taxing power. For example, Mr. Justice Strong, in his dissent in the Hyde Park bone factory case (97 U. S. 679, 1877) held that the state may contract away the right to abate a nuisance. And he declared that a police regulation cannot be an amendment to the charter, in disguise, and curtail the corporate franchise. Judge Bradley said that monopolies are the bane of politics at the present day; that in the eager pursuit of gain they are sought in every direction; and that the constitution forbids them from being carried by legislative enactment into the common callings of life, so as to cut off the right of a citizen to earn his bread by the trade he has learned.

It seems quite clear that the tendency of the College case in its application to railroad charters is to carry the court to the extent of implying a contract in the charter not to reduce the tolls below a point at which expenses can be paid, and a reasonable interest realized. Mr. Justice Field declared, in his dissent in Stone v. Wisconsin (94 U. S. 181, 1876) that the rights and privileges implied in a charter contract are as much a part of it as what is expressed; and that the doctrine is no longer open to discussion. This is contrary to the Charles River Bridge

case.

The court advances cautiously, but the proposition