Page:The Green Bag (1889–1914), Volume 11.pdf/527

 490

opinion of the judge, they are unreasonable.1 This unreasonableness being often a ques tion of fact, one court has advanced to the length of holding that it is competent for a judicial court to investigate the facts upon which the legislature acted in order to de termine whether those facts justified its action; and thus we have the spectacle of the propriety of an act of the legislature being tried as a question of fact by a chan cellor, or by a jury, according to the form of action.2 The growth and subsequent decline of the doctrine of the Dartmouth College Decisiouz furnish another striking illustration of "fashions in the law." The way had been paved for that decision in the collusive case of Fletcher v. Peck,4 where it was held that the provision of the Federal Constitution that no State shall pass any law impairing the obligation of contracts, applies to con tracts founded in public acts of legislation; in other words, to grants made by the legis lature of a State. It was merely an exten sion of that doctrine by the court to hold, as it did in the Dartmouth College case, that it embraced grants of corporate fran chises made by a State or other public au thority. The court held that the principle protected the charters of eleemosynary cor porations, but did not extend so far as to place the civil institution of the State beyond the control of the State itself, — in other words, did not extend to strictly public rights and consequently to strictly public corporations. The doctrine at' once became fashionable. It had behind it not only the institutions of learning of the country, but generally the educated, the wealthy, and the powerful classes. It grew and spread like 1 Reagan v. Farmers' Loan etc. Co., 154 U. S. 362, 399; St. Louis etc. R. Co., Gill, 156 U. S. 649, 663, 666; Smyth v. Ames, 169 U. S. 466, 523, 526. '2 I'riewe v. Wisconsin State I.and fcc. Co., 93 Wis. 534. 3 Dartmouth College v. Woodward, 4 Wheat. (U. S.), 518. ♦ 6 Cranch, U. S. 518.

a prairie fire. Such extensions of it were made that the States lost control of their educational institutions, although created by their acts of legislation and endowed with public property or with money raised by taxation;1 municipal corporations, created by the State for governmental purposes, ac quired rights which the State could not con trol, — on the theory that a municipal cor poration has a dual character of a public and a private corporation, and that rights acquired in its character of a private cor poration are invested with the security of 1 The extent to which this "fashion in the law" pro ceeded, may be gathered from the following among other cases: — Vincennes Univ. 'f. Indiana, 14 How. (U.S.) 268, 276; Board of Education Bakewell, 122 Ill. 339, 344-345 (Normal University of Illinois a private corpora tion); Washington Home v. Chicago, 157 Ill. 414, 423 (Washington Home Association of Chicago a private cor poration); Edwards v. Jagers, 19 Ind. 407, 413 ("County Seminaries " in Indiana private corporations, and not subject to be sold under a State law, and purchaser got no title); Kellum v. State, 66 Ind. 588, 597 (vested right of Vincennes University to maintain a lottery); State v. Carr, III Ind. 335, 337 (holding that the State University of Indiana is a private eleemosynary corporation); Louisville v. University of Louisville, 15 B. Monr. (Ky.) 642, 669 (holding that the University of Louisville was a private corporation, although a part of its funds were granted by the city or local public); Graded School District v. Bracken Academy, 95 Ky. 436, 443; Montpelier Academy v. George, 14 La. 395,409; Trustees v. Bradbury, 11 Me. 118, 122, 124, 126; s. c. 26 Am. Dec. 515, 516, 517, 518, 519, 520 (holding that a public school, endowed by public lands, became a private corporation, and escaped the con trol of the State, because it had been placed in the hands of a board of incorporated trustees); Regents v. Williams, 9 Gill & J. (Md.) 365, 401; s. c. 31 Am. Dec. 72, 90, 92 (holding that the "Regents of the University of Mary land " were a private corporation); St. John's College p. State, 15 Md. 330, 374; Sheriff v. Lowndes, 16 Md. 357, 376; Cary Library v. Bliss, 151 Mass. 364, 378 (Free Pub lic Library a private corporation); Williams v. Williams, 8 N. Y. 525, 533; Chegaray v. New York, 13 N. Y. 220, 229 (defining the word "seminary"); Ohio v. Neff, 52 Oh. St. 375, 404, 405; Liggett v. Ladd, 17 Ore. 89, 99-100 (making the concession that if the State were to endow a college out of a trust fund belonging to the State, the State would thereby acquire no authority to interfere with the charter of the college); Brown v. Hummel, 6 Pa. St. 86,93; s. c. 47 Am. Dec. 431, 436; Grammar School v, Burt, 11 Vt. 632, 641; Franklin County Grammar School v. Bailey, 62 Vt. 467, 476, 477 (a grammar school endowed by public funds a private corporation). Compare Hale v. Everett (alias Everlasting) 53 N. H. 9-276, and Fuller v. Plainfield Academic School, 6 Conn. 532, 545.