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THE GREEN BAG

THE DARTMOUTH COLLEGE CASE BY ROBERT SPRAGUE HALL FROM the middle West, from Chicago and St. Louis, comes a wail of anguish, over John Marshall's opinion, pronounced in 1819, in the case of Trustees of Dart mouth College v. Woodward. The writer of the Jeremiad declares that the decision in that case was destructive of the rights of the states, and, thereby, of the people's rights; that it was not adjudication, but usurpation. His pamphlet contains an in troduction, by the editor of one of the newspapers in which its text had appeared, who asserts that the "Marshall decision is the backbone, the vitality, of all corporate power," "the secret of corporate tyranny over the people,"- and more of the same sort, and that the decision "must be re versed and its logic denounced, if this government is to fulfil the purpose of its founders." Nearly thirty years ago, St. Louis had given us a volume on the same case, by a New Hampshire man, John M. Shirley, who concluded with these words: viz., "the pernicious principles supposed to have been established in Trustees of Dart mouth College v. Woodward." In that word "supposed," lies a sug gestion for the solution of any problem which seems to involve the decision. The nub of the matter is the right of the legis latures of our various states to repeal the charters which they have granted to corpo rations. Ten of those states have constitu tional provisions to secure that right, and any state legislature may secure it, by introducing an appropriate clause in any charter granted by it. Of course, the latter method is subject to the uncertainty that attends all efforts to restrict acts of the legislature when powerful interests are working against the restrictions. But, to return to the famous case. The legislature of New Hampshire, in 1816, passed certain acts, with a view to the modi

fication of the charter of the corporation known as The Trustees of Dartmouth College. The trustees objected, and took their case to the courts. The Superior Court, the highest in the state, decided against them, and they appealed to the Supreme Court of the United States. There, they were successful, six out of seven judges, including the chief justice, John Marshall, deciding that their charter was a contract, within the meaning of the clause in the United States constitution forbidding any state to pass any law impairing the obligation of contracts. Three opinions were written and published, those of Mar shall, Bushrod Washington, and Joseph Story, all concurring. The dissenting jus tice, Duval, handed in no opinion. The most obvious feature of the decision is that it concerns, and is authoritative for, the charters of one class only of corpo rations, the class including those of the type of Dartmouth College, that is, private eleemosynary institutions. Marshall's opin ion contains no reference to business cor porations, and he distinguishes the case in hand from those where the state has granted charters to political corporations, creating civil institutions for governmental purposes, holding that the charters of the latter are riot contracts, and are not within the pro tection of the clause in the United States constitution. He 'holds that the charter of the College is not a grant of political power, but that the College is a private eleemosy nary institution, devoted to objects uncon nected with government, and supported by funds bestowed upon the faith that they would be administered according to the provisions of the charter. He regards the trustees as the representatives, for all time, of the persons who gave their money for certain purposes, set forth in the charter, and who would not have given their money