Page:The Green Bag (1889–1914), Volume 21.pdf/686

 The Dartmouth College Case sense. . . but they do not make the college property public in the sense in which the state-house, state-library and state-prison are public. . . . On the college land the legisla ture cannot build a road, against the owner's objection, without paying the owner for a right of way." 7. The learned and able opinion of Chief justice Doe in Dow v. Railroad (67 N. H. 1) throws so much light on the Dartmouth College case that it commands the greatest respect. One of the links in his logical chain, however, does not seem perfectly flawless. "Since the enactment," says the Court (at p. 41) "of the Bill [of Rights] in 1689, the sovereign has had no authority to exempt from legislative repeal a college charter granted either by the King or by Parliament." The law, however, of the English Constitution would give perpetual life to a royal grant not in derogation of the common or statute law (see Halsbury's Laws of England, v. 6, pp. 485-7; v. 8, pp. 315-6), and a grant in itself perpetual by operation of law at the moment it was made would obviously be within the power of the crown. The crown would then be bound to insure the perpetuity of the grant, so it would be easy to see in the circumstances a contractual transaction like that which Marshall professed to see in the college charter. Whatever the obligations of the royal grantor, they would descend to the state of New Hampshire after the Revolution so far as not clearly unsuited to American society. Thus in Pawlet v. Clark, it was held by the Supreme Court in 1815, in the opinion of Justice Story, that a state succeeding to the rights of the crown cannot by legislative act rescind a royal grant. 9 Cranch 292. 8. While the police power is no more sacred than the taxing power, a temporary alienation of the former would clearly be more in conflict with public policy than one of the latter, for in the latter case the state may gain a recompense in some other form. There is a logical reason for subjecting the inviolability of charters at all times to the limitation involved in the police power,

651

and it is not easy to infer, from the opinion of Marshall in the Dartmouth College case, that he intended to deny the right of the state to exercise its police power. On the other hand it is logical to allow temporary ' exemptions from taxation when justified by public policy, under circumstances like those of State Bank of Ohio v. Knoop, and charters, while always subjected to the police power and the power of eminent domain, are properly relieved of taxation when the state does not thereby abdicate one of its sovereign powers. Furthermore, it may reasonably be contended that before the Revolutionary War the Dartmouth College charter would under the British Constitution have been subject to the police power and other prerogatives of Parliamentary sov ereignty, and that these limitations were inherent in the contract which Marshall construed. 9. In Illinois v. Central R. Co. (146 U. S. 387), it was held that the state cannot, by granting to private persons property held in trust for the people, abdicate a public trust. The principle of the case is analogous to that in the cases which sustain the pro priety of the legislature's exercising the police power or the right of eminent domain, it being immaterial whether a public trust, a public need, or the public health and safety, are to prevail over private prerogative. On the contrary, when rights in public ways are granted by charter, such a grant does not involve the use of such ways for a private as distinguished from a public use, and when those rights are exercised in a manner not calling for the exercise of the police power they should not be in danger of being nullified merely on the ground that the legislature cannot alienate public property. The principle that a charter is a vested property right, not simply a legislative act, does not need to be overruled by the Supreme Court, as Mr. Orton has contended. For the law already prevents that principle from being made use of to harass or injure the public, without weakening its vitality as an important fundamental institution of American society. THE EDITOR.