The citizens of Millersburg, Kentucky, raised a fund for the
purpose of establishing a collegiate institute in that place or its
vicinity, and invited the Kentucky Annual Conference of the
Methodist Episcopal Church, South, to take charge of it when
established. The invitation was accepted, and the legislature of
the state incorporated the institute by an act, one provision in
which was a reservation to the legislature of the right to amend or
repeal it. Large additions were then made to the fund from other
sources, and in 1860 another act was passed incorporating the Board
of Education of that Conference of the Methodist Church. In this
act, after reciting, the raising of the money and the establishment
of the institution at Millersburg, the control of the college and
the disposition of the sums raised were placed in the hands of the
Conference. This act also was passed subject to the right of the
legislature to amend or repeal. In 1861, the legislature passed
another act, in which, as construed by the courts, power was
conferred upon the Conference to remove the college from
Millersburg to any other place within the bounds of the Kentucky
Annual Conference.
Held that the latter act did not impair
any contract created by the former statutes and proceedings.
The
Pennsylvania College
Cases, 13 Wall. 190 require the affirmance of the
decree in the court below in this case.
The plaintiffs in error, suing on behalf of themselves and other
shareholders of the Board of Education of the Kentucky Annual
Conference of the Methodist Episcopal Church, South, and of the
Millersburg Male and Female Collegiate Institute, brought this suit
in equity in the circuit court of Bourbon County, Kentucky, against
the Board of Education of the Kentucky Annual Conference of the
Methodist Episcopal Church, South, and others, to obtain a decree
perpetually restraining the defendants from selling or disposing of
certain lands and buildings of the above-named institute, commonly
known as the "Kentucky Wesleyan College," located at Millersburg,
Kentucky, or from removing that college, its capital, or property
from that place to Winchester, in the same commonwealth,
Page 151 U. S. 640
or from using the capital or fund of the institute for any
purpose or at any place except in its conduct and management at
Millersburg.
Upon final hearing, the bill was dismissed, and that decree was
affirmed by the Court of Appeals of Kentucky, the highest court of
the commonwealth. The present writ of error questions the
correctness of the decree of affirmance, upon the ground, among
others, that it gives effect to legislative enactments which, it is
alleged, impair the obligation of a contract, in which the
plaintiffs and those in whose behalf they sue have an interest for
the permanent location and maintenance of the college at
Millersburg.
The facts relating to the alleged contract and to the federal
question suggested by the legislation referred to will sufficiently
appear in the following statement:
At a meeting of the citizens of Millersburg, held on the 4th day
of January, 1858, these resolutions were adopted:
"Whereas it is proposed to purchase ground and erect buildings
for and institution of learning and boarding house, the whole to
cost about fifteen thousand dollars, and whereas it is believed to
be indispensable to the success of educational enterprises that
they may be under the supervision of some denomination,
therefore,"
"
Resolved that we promise and pledge ourselves for the
amount subscribed to secure a male and female collegiate institute
in Millersburg or its immediate vicinity on the following basis,
to-wit: 1, that it be an institute for the Covington District,
Kentucky Conference, and be under the control of the Methodist
Episcopal Church, South; 2, the trustees and building committee be
appointed by the quarterly conference of the Millersburg station,
the former to be subject to the approval of the Kentucky
Conference; 3, it shall be upon the joint-stock plan, the shares to
be $25 each, and to be subject to sale or transfer, but not to bear
interest; 4, in case the said church fail to sustain the institute
and it shall from any cause be discontinued, they the property is
to revert to the stockholders
pro rata; 5, the stock
subscribed shall be paid to the building committee on the following
terms: one-third
Page 151 U. S. 641
when the buildings are put under contract, one-third when they
are covered in and floors laid, and one-third six months
thereafter."
For the purpose of accomplishing these objects, the Millersburg
Male and Female Collegiate Institute was incorporated by an Act of
the Legislature of Kentucky approved February 16, 1858, the
preamble of which recited that
"divers citizens in and near the Town of Millersburg, in the
County of Bourbon, have subscribed a considerable sum of money for
the purpose of erecting in or near said town a seminary of
learning, to be under the control and supervision of the Kentucky
Annual Conference of the Methodist Episcopal Church, South, to the
extent hereinafter provided."
The act made certain trustees and their successors in office
capable of purchasing and holding any lands, tenements, goods,
chattels, and money, not exceeding $50,000 in value, that should be
purchased, granted, or devised to the use of the institution. It
was provided that the trustees might receive additional
subscriptions and donations in aid of the seminary, and should be
selected, from time to time, by the Kentucky Annual Conference of
the Methodist Episcopal Church, South, upon the nomination of the
Millersburg station of that church. The fourth section of the act
is as follows:
"All persons who shall subscribe twenty-five dollars or more in
aid of said institute shall be deemed stockholders therein, said
sum to constitute a share. And if the said Methodist Church shall
ever relinquish or surrender, or cease to exercise a control over
said institute, then and in that case, its control and management
shall revert to and vest in said stockholders, who may at a meeting
for that purpose called, proceed to elect a board of trustees, and
if said corporation shall cease to exist, or be dissolved, or its
charter surrendered or repealed, all its property of every kind or
description shall vest in said stockholders."
This act, it was declared, should take effect from its passage,
"but the legislature reserves the right to amend or repeal the
same."
At the meeting of the Kentucky Annual Conference held
Page 151 U. S. 642
in Millersburg, in September, 1858, the trustees of the
institute presented a memorial stating that it had secured a
charter for a collegiate institute of be held and controlled, as in
its charter provided, by that conference; had obtained a
subscription of $7,500, and had purchased a suitable piece of land,
and taken steps to have all necessary buildings erected on it. The
conference having been asked to accept the subscription, grounds,
etc., upon the terms set forth in the charter of the institute, the
memorial was referred to a committee, which reported as
follows:
"1, That we accept the institute upon the terms set forth in the
charter; 2, that we request the presiding bishop to appoint the
preacher of Millersburg station agent to raise the sum of $10,000
for our educational fund; 3, that the sum of $10,000, when secured,
be subscribed as the stock of this conference in the institute; 4,
that we, the members of this conference, being deeply impressed
with the sense of our educational necessities, do hereby pledge
ourselves personally to the support of this institution, and we
will afford every facility in our power to the agent in raising the
above $10,000."
The conference approved the report of the committee, but, having
expressed its belief that harmony of action in that body would be
secured if the charter of the institute were amended so as to make
it exclusively a male school, with college privileges, a meeting of
the stockholders and friends of the institute was held at which it
was resolved:
"1, That we, as stockholders in the institute, will unite in
application to the legislature to so amend the charter as to make
it a first-class male college; 2, that we will raise our
subscription to $10,000, and that we will use our best efforts to
advance and sustain the enterprise, upon the condition that the
Kentucky Annual Conference of the Methodist Episcopal Church,
South, will appoint a special agent to raise an additional sum of
$10,000 and further that said conference in good faith pledges
itself to aid in the erection of suitable buildings and to take the
proper steps to endow the college as soon as practicable."
These proceedings were approved by the conference.
On the 30th day of September, 1858 at a meeting in
Lexington,
Page 151 U. S. 643
Kentucky, of the Board of Education, which had been constituted
by the conference at its meeting in Millersburg but had not then
become incorporated, it was resolved:
"1, That we believe that $200,000 will be ultimately required to
establish and sustain in the best manner a first-class college, and
that we proceed at once to raise one-half of the amount; 2, that no
part of the capital raised for the educational fund shall ever be
appropriated to the payment of the salaries of the professors and
other teachers, or for any contingent expenses whatever, and that
only $10,000 of that fund, as already pledged by the conference
shall be appropriated towards the erection of the college
buildings; 3, that no part of the proceeds of the capital shall be
used for any purpose whatever until, in the judgment of the Board
of Education and the trustees of the college, it is annually
sufficient to support three professors; 4, that we issue
scholarships of the value of $500 each, to be perpetual and
transferable, and to entitle the holder to tuition in either the
preparatory department or the college proper, in any studies
necessary to graduation; 5, that we issue scholarships of the value
of $100 each, to terminate in fifty years from the time of the
opening of the college, not to be transferable, and to entitle the
holder to tuition only in the college proper, and in such studies
only as may be necessary to graduation; in other respects they are
to be similar to the scholarships of Ashbury University, of
Greencastle, Indiana; 6, that we issue scholarships to the value of
$50 each, entitling the holder to five years' tuition at any time
within fifty years from the time of the opening of the college, in
any of the classes of the college, in the studies necessary to
graduation, but not to be transferable; 7, that if the original
stockholders of the Millersburg Male and Female Collegiate
Institute will raise in Bourbon County, and in that portion of
Nicholas County lying in the vicinity of Millersburg, $10,000 in
addition to the $10,000 pledged by them, the entire amount of
$20,000 thus raised to be invested in the erection of the
buildings, we will issue scholarships for the said $20,000 on the
same terms as to others, provided that their amount of stock in
that case be surrendered in lieu of said issue of scholarships, to
the Kentucky
Page 151 U. S. 644
Annual Conference of the Methodist Episcopal Church, South, to
be held by said conference as part of the educational fund; 8, that
the treasurer of the educational fund be instructed to pay over
moneys coming into his hands, as they may be needed, so soon as the
$10,000 already pledged by the stockholders shall have been
secured, provided that he shall, in so doing, be governed by the
action of the conference and the other part of these proceedings;
9, that any individual who shall endow a professorship shall have
the privilege of naming it."
The above proposition was acceded to by stockholders at a
meeting held in October, 1858, to consider the subject, and
scholarships ships were issued to those making subscriptions or
donations. A certificate of perpetual scholarship recited that the
person to whom it was issued had, by payment of the sum therein
named "to the treasurer of the educational fund of the Kentucky
Annual Conference of the Methodist Episcopal Church, South,
purchased" the same "in the college or university to be established
by said conference at Millersburg, Kentucky," under certain
specified limitations. The certificate of a fifty-year scholarship
contained similar recitals, accompanied by numerous conditions,
that need not be here repeated. The notes executed for the
scholarships were in the following form:
"$500. Bourbon County, Kentucky, _____, 18__. ___ year after
date, I promise to pay to the order of _____, treasurer of the
educational fund of the Kentucky Annual Conference of the Methodist
Episcopal Church, South, five hundred dollars, this being the _____
note in _____ payment for a scholarship in the college or
university to be established by said conference."
Some of the notes had in them these words: "In the college or
university now established by said conference." Upon delivery by
donors or subscribers of their notes, the agent executed a receipt
in the following form:
"Received of (William M. Miller) five hundred dollars ($500) and
his note for five hundred dollars ($500) payable in one year from
the ___ day of 18__, to _____, treasurer of the educational fund of
the Kentucky Annual Conference of the Methodist Episcopal Church,
South, which, when paid,
Page 151 U. S. 645
will entitle him to two perpetual scholarships in the college or
university established by said conference. _____ County, Kentucky,
_____, 18__."
While certificates of scholarships were being issued, the
buildings were in process of erection at Millersburg, and by
November 23, 1859, nearly $60,000 had been donated in cash and
notes, of which about $20,000 had been expended no the buildings,
leaving only a small sum to be applied for their completion.
On the 12th of January, 1860, the Legislature of Kentucky passed
an act entitled "An act to incorporate the Board of Education of
the Kentucky Annual Conference of the Methodist Episcopal Church,
South," the preamble reciting that
"the Kentucky Conference of the Methodist Episcopal Church,
South, have resolved to form an educational fund and establish a
college for the promotion of literature, science, morality, and
religion within the limits of said conference, and having in fact
secured the sum of fifty-seven thousand dollars in cash and in good
and reliable notes, and located an institution at Millersburg,
Bourbon County, which is now ready for occupancy: now, in order to
give full and complete legal effect thereto,"
etc. This act authorized the board to make bylaws and ordinances
for the proper conduct and government of the college, to elect its
President and faculty, to establish, change, or abolish
professorships, as the exigencies of the college might require, and
to perform all acts not inconsistent with the constitution or
statutes of the state that were necessary or expedient in
sustaining the educational fund of the conference and for the
proper conduct of the college. The board was required to meet at
the time of the commencement of the college at Millersburg, and at
such other times as it might determine. The money paid into the
hands of the treasurer, as the educational fund, was directed to be
invested in Kentucky state bonds, county bonds, or safe and
profitable stocks, as the board might determine, except the amount
necessary "to pay for the present college building." By the
eleventh section, the act incorporating the Millersburg Male and
Female Collegiate Institute, approved February
Page 151 U. S. 646
16, 1858, was repealed, and by the twelfth section the right to
amend or repeal the act of 1860 was reserved.
By an act of the Kentucky Legislature, approved September 17,
1861, amendatory of the act incorporating the Board of Education of
the Kentucky Annual Conference of the Methodist Episcopal Church,
South, it was provided:
"§ 1. That it shall and may be lawful for the trustees of
Millersburg Male and Female Collegiate Institute, who were in
office on the 12th day of January, 1860, when the act incorporating
said institute was repealed, or their survivors, to convey by deed
to the Board of Education of the Kentucky Annual Conference of the
Methodist Episcopal Church, South, the property held by said
trustees in and near the Town of Millersburg for the purpose of
carrying into effect any contract made by said trustees or
stockholders of said institute with said board, and their
conveyance, recorded in the proper office, shall be effectual to
pass the title of said property to said board and their
successors."
"SEC. 2. Nothing contained in the act of the General Assembly
incorporating said board, approved January 12th, 1860, shall be
construed so as to prevent or hinder said board, or their
successors, from removing the seat of the college from Millersburg
to any other place in the bounds of the Kentucky annual
conference."
"SEC. 3. That act to be in force from its passage."
This act was accepted by the Annual Conference by formal action
taken September 25, 1861, and on the 4th day of November, 1861,
nearly twenty-seven years before this suit was brought, the
trustees of the Millersburg Male and Female College conveyed to the
Board of Education and their successors in office the grounds on
which the college buildings were erected
"for the benefit of the educational fund of the Kentucky
Conference of the Methodist Episcopal Church, South, forever, to be
held and used and disposed of in such way as the charter of said
Board of Education may direct. "
Page 151 U. S. 647
MR. JUSTICE HARLAN delivered the opinion of the Court.
The plaintiffs contend that notwithstanding the act of 1858
reserves the right to amend or repeal the charter of the
Millersburg Male and Female Collegiate Institute, the eleventh
section of the act of 1860, repealing the act of 1858 incorporating
the Millersburg Male and Female Collegiate Institute, was repugnant
to that provision of the Constitution of Kentucky then in force
declaring that "no law enacted by the General Assembly shall relate
to more than one subject, and that shall be expressed in the
title." Art. II, § 37. This contention was sustained by the
Court of Appeals of Kentucky upon the ground that the subject of
the repeal of the charter of 1858 was not expressed in the title of
the act of 1860, and in our consideration of the principal question
in the case, we will assume without discussion that the charter of
the institute was not repealed by the act of 1860.
But the court below further said in the same connection that the
repeal of the charter of the college
"was not actually necessary, because the corporation created by
it practically ceased to exist after the contract made between the
original stockholders and Board of Education whereby the latter
acquired, for use of the Kentucky Wesleyan College, possession of
and equitable title to all property of the Millersburg Male and
Female Collegiate Institute, and the trustees thereof were deprived
of their function and divested of every right except
Page 151 U. S. 648
the naked legal title, and as section 1 of the Act of September
17, 1861, merely empowered those trustees to convey that property
to the Board of Education, which they might have been coerced to do
by a court of equity, no injury resulted from it."
But plaintiffs in error insist that the first section of the act
of 1861 impaired the obligation of the contract in question.
The view taken by the court below upon this point is, in our
judgment, entirely sound. From the inception of the scheme to
establish an educational institution at Millersburg, it was
intended that it should be under the control of the Methodist
Episcopal Church, South, represented by its Kentucky Annual
Conference. This purpose was distinctly recognized in the charter
of the institute, which gave authority to that conference, upon
nominations by the Millersburg station of the church, to select the
trustees of the institute from time to time, and declared that if
the Methodist Church should ever relinquish of surrender or cease
to exercise a control over the institute, then its control and
management should revert to and vest in its stockholders, who were
authorized, at a meeting called for that purpose, to elect
trustees. The trustees of the institute therefore acted within the
authority conferred upon them when, in September, 1858, they asked
the conference to accept the subscription, grounds, etc., that had
been obtained for the institute. The conference did formally accept
the institute upon the terms set forth in its charter, and by such
acceptance acquired full control of the college. The court below
correctly held that, after the control of the institute had been
thus transferred to the conference, the trustees had no other
functions to perform in respect to the property of the college
except to hold the naked legal title. Why then was it not competent
for the General Assembly to invest the trustees of the institute
(as was done by the first section of the act of 1861) with
authority to convey to the Board of Education the property held by
them for the purpose of carrying into effect any contract made by
them or the stockholders of the institute with the board? It must
be remembered that the right to amend or repeal was reserved to the
General Assembly in the charter of the institute granted in 1858.
The
Page 151 U. S. 649
transfer of the naked legal title from the trustees of the
institute to the Board of Education did not take from the institute
any substantial right, but was in execution of the purpose to put
the college and its property wholly under the control and
management of the Kentucky Annual Conference of the Methodist
Church, South. The deed from the trustees stated that the college
buildings had been erected for the benefit of the educational fund
of the Kentucky Conference of the Methodist Episcopal Church,
South, forever, to be held, used, and disposed of in such way as
the charter of that board might direct. That charter, we have seen,
was granted to give legal effect to the purpose of the conference,
previously avowed, to form an educational fund, and establish a
college for the promotion of literature, science, morality, and
religion within its bounds, to which end a large sum in cash and
notes had been secured, and an institution located at Millersburg,
then ready for occupancy. If the first section of the Act of
September 17, 1861, had contemplated any diversion of the property
and funds of the institute from the purposes for which they were
acquired, and for which, by its charter, they could be used, a
different and more serious question would have arisen.
This brings us to the examination of the second section of the
act of 1861, which provided that nothing in the charter of the
Board of Education
"shall be construed so as to prevent or hinder said board or
their successors from removing the seat of the college from
Millersburg to any other place within the bounds of the Kentucky
Annual Conference."
The contention of the plaintiffs is that there was and is a
contract the benefits of which they can rightfully claim, that the
institute should remain permanently at Millersburg, and that, if
the second section of the act of 1861 contains a grant of power to
remove the institute from the town, it was void, as impairing the
obligation of the contract.
Literally interpreted, the second section of the act of 1861
would be held to do nothing more than prescribe a rule for the
interpretation of a previous legislative enactment, and, so
interpreted, it would be inoperative as an act of legislation,
under those provisions of the Constitution of Kentucky then
Page 151 U. S. 650
in force confiding the powers of government to three distinct
departments -- legislative, executive, and judicial -- and
declaring that no person or collection of persons, being of one of
those departments, should exercise any power properly belonging to
either of the others except in the instances expressly directed or
permitted. Art. 1, §§ 1, 2. But the Court of Appeals of
Kentucky, regarding substance rather than form, held that the
intention of the General Assembly by the second section of the act
of 1861 was to confer upon the Board of Education a power not
expressly granted by the act of 1860 -- namely, the power of
removing the seat of the college from Millersburg to any other
place in the bounds of the Kentucky Annual Conference. We assume
that the act means what the court below said it meant in view of
the constitution of the state. It must therefore be taken, in our
examination of the question as to the repugnancy of the second
section of the act of 1861 to the Constitution of the United
States, that it was intended by the General Assembly of Kentucky to
give the Board of Education authority to remove the college and its
capital and funds from Millersburg to some other place within the
bounds of the Kentucky Annual Conference. Did the act, thus
interpreted, impair the obligation of any contract that the
plaintiffs in error had in reference to that college? It certainly
did if the alleged contract forbade the removal of the institute
from Millersburg except with the assent of the plaintiffs and those
in whose behalf they sue; so that it is necessary to inquire as to
the existence and effect of the alleged contract, and that question
must be determined by this Court upon its own judgment,
independently of any adjudication by the state court.
Jefferson Bank v.
Skelly, 1 Black. 436,
66 U. S. 443;
Wright v. Nagle, 101 U. S. 791,
101 U. S. 794;
Louisville & Nashville Railroad Co. v. Palmes,
109 U. S. 254,
109 U. S. 257;
Louisville Gas Co. v. Citizens' Gas Co., 115 U.
S. 683,
115 U. S. 697;
Vicksburg &c. Railroad Co. v. Dennis, 116 U.
S. 665,
116 U. S. 667.
If there was no such contract, as is alleged, then no right secured
by the national Constitution has been denied by the decree
below.
The argument in support of the existence of the alleged contract
rests upon the words of various documents, showing
Page 151 U. S. 651
that the original purpose of those who were instrumental in
establishing this institute was to have it located at Millersburg.
Undoubtedly those persons were moved to act in some degree by the
belief that the seat of the proposed college would be at
Millersburg. That belief is disclosed in the resolutions adopted by
the citizens of Millersburg at the meeting of January 4, 1858. It
is also expressed in the charter of the institute granted in the
same year, reciting that money had been subscribed for the purpose
of erecting in or near said town a seminary of learning. It is
again expressed in the certificates of perpetual scholarships
issued under the authority of the conference. It is further
expressed in the charter of the Board of Education of 1860,
referring to the college as having been "located" at Millersburg,
with buildings then ready for occupancy. And it is equally manifest
that when that charter was granted, the conference believed that
the ends proposed to be accomplished by the establishment of the
institution -- namely, the promotion, within its bounds, of
literature, science, morality, and religion -- could be
accomplished by an institute located at Millersburg. It is equally
true, upon the record before us, that the conference was not
wanting in earnest persistent efforts to sustain the institute at
Millersburg. But that body in its wisdom determined that the
objects in view could be best a accomplished by removing the
college to some other place, and we are of opinion that its removal
to Winchester would not be in excess of its authority.
At the meeting of citizens of Millersburg held in 1858, it was
declared that the institute should be under the control of the
Methodist Episcopal Church, South, and although the object avowed
was to secure a collegiate institute at Millersburg or in its
immediate vicinity, the only condition named in the resolution
passed at that meeting upon which the property should revert to the
stockholders was the failure of the church to sustain the
institute, or its discontinuance from and cause, and in the charter
of the institute it is provided that if
"the Methodist Church shall ever relinquish or surrender or
cease to exercise a control over said institute, then, and in that
case, its control and management shall revert to and vest in said
stockholders, who may at a meeting for that purpose called, proceed
to elect a board of trustees, and if said corporation shall cease
to exist, or be dissolved, or its charter surrendered or repealed,
all its property of every kind or description shall vest in
said
Page 151 U. S. 652
stockholders."
It is a significant fact that the permanent location of the
institute at Millersburg was not made in terms, by the resolutions
of the citizens' meeting or by the charter of the college, a
condition upon which the control of the institute and its property
should remain with the conference. The Methodist Episcopal Church,
South, as represented by the Kentucky Annual Conference, has not
relinquished, surrendered, or ceased to exercise control of the
institute, and therefore its control and management has not
reverted to stockholders through trustees of their own selection.
The institute has not been discontinued, nor has the corporation
ceased, in law, to exist, nor has its charter been surrendered or
repealed, and therefore its property has not, in any view of the
facts or of the legislation in question, vested in
stockholders.
The primary object of those who first moved in this matter --
namely, to secure the establishment of an institution of learning
under the control of the Kentucky Conference of the Methodist
Episcopal Church, South -- has not been overlooked or ignored in
anything that has been done or proposed to be done. The belief of
those who subscribed to the stock of the institute or accepted
scholarships after the institute passed under the control of the
conference, through its Board of Education, that the institute
would remain permanently at Millersburg, cannot be regarded as
equivalent to a contract or absolute agreement that prevents the
conference from removing the institute to another place, if it
deems such a course to be best for the cause of education and
morality. It is not the province of this Court to sit in judgment
upon the propriety of the course pursued by that body. We can only
deal with the question of contract, and that question cannot depend
upon any consideration of what, under all the circumstances, is
fair and just as between the conference and those citizens of
Millersburg and vicinity who may have believed
Page 151 U. S. 653
or expected, when making their subscriptions or giving their
support to the institution, that it would always be maintained at
that place. This Court, in determining the federal question
involved, can only look at the question of the power of the General
Assembly of Kentucky to authorize the removal of the institute to
another place within the bounds of the conference. In the absence
of a binding agreement, upon the part of the conference or those
representing it, that the institute should remain permanently at
Millersburg, even if the object of its original establishment could
not be accomplished by keeping it there, our duty is to adjudge,
without reference to considerations of abstract justice or equity,
that the legislation in question is not repugnant to the
Constitution of the United States.
In the brief of learned counsel for the plaintiffs are cited
numerous authorities which, it is supposed, require a different
conclusion from that announced by us.
On of the cases much relied on is
Sage v. Dillard, 15
B. Mon. 340, 361. The question there determined is indicated in the
following extract from the opinion of the Court of Appeals of
Kentucky:
"In this case it appears that the original founders or endowers
of the institute were willing to entrust their charity to the care
and management of the original trustees, and such others, of
course, as might be necessary in their opinion to effectuate the
objects of the charity. To trustees of their own selection they
confided the bounty which they bestowed for a great, a
praiseworthy, and a noble purpose. In the hands of these men and
others of their choice they entrusted the management and control of
an institution which, by their munificence, was brought into being
and into which their beneficence has infused energy and usefulness.
This charity has grown into a valuable estate, and sustains an
institution which was designed to promote education in the
Christian scriptures, and qualify a Baptist ministry to disseminate
religious knowledge in the west. The object is a laudable one, and
can it be that the legislature, in retaining the right to 'alter'
or 'amend' the charter, retained the right to take the supervision
and control of this
Page 151 U. S. 654
opulent charity out of the hands of those to whose care and
oversight the founders confided it, and place it in the hands of
strangers who never breathed, perhaps, a single breath of vitality
into this institution, either to impart to it life or growth? We
think not."
Another case cited by plaintiffs is
City of Louisville v.
Pres. & Trustees of University of Louisville, 15 B. Mon.
642, 686. The principal question in that case was as to the
validity of an amendment of the charter of the University of
Louisville giving to the City of Louisville, one of the donors of
the institution, to the exclusion of other donors, the power of
electing trustees of the university. The court, as counsel
correctly observe, held that though a part of the funds were
granted by the city, the charter constituted a contract, by which
all the donors, the trustees, and the state were bound, and the
obligation of which could not be impaired by an act passed under a
reserved power to alter, amend, or repeal. Chief Justice Marshall,
speaking for the Court of Appeals of Kentucky, said, among other
things, that
"it would at least seem to be just that the donors should have a
right to insist that as long as their donation is retained, it
shall not, even under the authority of the state, be diverted from
the uses stipulated in the charter, and the right should be
transmissible as incident to the reversionary interests, and to the
contract of donation. . . . We are of opinion, therefore, upon the
ground of authority, as well as of reason, that the original
charter of the University of Louisville creates a private
corporation which is protected by that clause of the Constitution
of the United States which prohibits the enactment of laws
impairing the obligation of contracts, and that so much of the
amended charter of the City of Louisville of 1861 as relates to the
existing corporation and charter of the university and vests, or
professes to vest, in a new corporation or in new trustees the
property and privileges of the original corporation is in violation
of that constitutional prohibition, and consequently void."
Our attention has also been called to the case of
State v.
Adams, 44 Mo. 571, 577, relating to the charter of St.
Page 151 U. S. 655
Charles College, a corporation of Missouri. That charter, in
conformity with the wishes of its founder, declared the college to
be an institution purely literary, affording instruction in ancient
and modern languages, and in the sciences and the liberal arts, and
not including or supporting by its funds any department for
instruction in systematic or polemic theology, nor instituting any
regulations which should render a place in its classes offensive
"to reasonable, liberal-minded persons, whatever might be their
religious views." By a legislative amendment of the charter, it was
provided that the concurrence of the Missouri Annual Conference of
the Methodist Episcopal Church, South, should be requisite in
filling vacancies on the board of curators, upon the conference's
affording satisfactory assurances for the maintenance and endowment
of the college. One of the questions in the case was whether this
amendment was not void as impairing the obligation of the contract
created by the original charter. The Supreme Court of Missouri,
referring to the provisions of the original charter, said:
"It would have been difficult to more emphatically provide for
the exclusion of special or denominational religious influences.
The declared objects and principles of the foundation are
inconsistent with it, and the choice of future curators is to be
uncontrolled by any ecclesiastical body or personage. We do not,
hence, suppose that the founder intended to exclude all influence
from, or instruction in, the great principles of Christian ethics,
the basis of all character, the foundation of good citizenship and
just government, and which are professedly adopted by men of all
creeds; but he did intend to prevent the institution from becoming,
in any special sense, a theological or religious school. The
amendment in the charter, by requiring the concurrence in the
choice of the curators of an ecclesiastical body representing one
of the religious denominations of the state, endangers in this
regard the principles of the foundation, and even if it did not, it
changes the character of the administration of the trust, hinders
the free choice of their successors, according to the will of the
founder, by the men to whom he had entrusted his bounty, and
essentially impairs the contract under which
Page 151 U. S. 656
he advanced it."
For these reasons, the amendment was held to be a violation of
the contract embraced in the charter.
Reference has been made to
Allen v. McKeen, 1 Sumner
276, 305, which involved the validity of an act of the legislature
of Maine relating to Bowdoin College, of which the Commonwealth of
Massachusetts was the founder. By the act of separation of Maine
from Massachusetts, the powers and privileges of the President,
trustees, and overseers of the college were guarantied under its
charter, so that they could not be altered, limited, annulled, or
restrained except by judicial process, according to the principles
of law, unless with the assent of both states. Massachusetts
subsequently, by formal resolve, gave its assent to any alteration
or modification of the act relating to the college, not affecting
the rights or interests of that commonwealth, which the authorities
of the college corporation might make with the consent of the
Legislature of Maine. Alluding to the resolve of Massachusetts, and
considering its scope and effect, Mr. Justice Story said:
"Nothing is clearer in point of law than the right of a founder
to have his visitorial 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 the 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 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. "
Page 151 U. S. 657
Neither of those cases has any application to the one before us.
There has been no diversion of the funds raised for this institute.
From the beginning, the purpose was to establish an institution to
be under the control and supervision of some religious
denomination, and the denomination selected was the Methodist
Episcopal Church, South, represented by the Kentucky Annual
Conference. Nor has the legislature assumed to make any material
change in its control and management. The trustees, as the charter
of the institute required, are selected by that conference. The
question here relates simply to the power of removing the institute
from the place of its origin to another place within the bounds of
that conference. There is no question of diversion of funds, or of
change of control and management. It is clear that the above cases
are wholly inapplicable to the present controversy.
The case more directly in point than any one to which our
attention has been called is the
Pennsylvania College
Cases, 13 Wall.190. It resembles the present one in
many important particulars. The principles which in that case
sustained the validity of the legislation of Pennsylvania relating
to the colleges at Canonsburg and Washington lead to an affirmance
of the decree below.
We concur with the Court of Appeals of Kentucky in saying that
neither the contract between the original stockholders and Board of
Education nor the act of 1860 contains an express condition that
the title of the property which became part of the endowment fund
was to be held upon condition that the college be forever conducted
and maintained at Millersburg, and nowhere else within the
territorial limits of the Annual Conference; that such condition
exists, if at all, by implication only; that the law does not
presume a party entitled to a right or benefit of reservation
claimed under contract in the absence of an express stipulation,
except such as reason and justice dictate; that not only those
residing elsewhere, but as well residents of Millersburg and
vicinity, must be presumed to have regarded the establishment and
successful maintenance of a first-class college, under the
patronage and control of the Annual Conference, as the first
and
Page 151 U. S. 658
main consideration for the outlay of money made, and the
particular locality as of secondary importance, and therefore all
that can be reasonably implied in behalf of the citizens of
Millersburg is that they expected and believed that the successful
operation of the institution would prove compatible with the
continuance of it at that place. To now imply anything else or
more, that court well says, would not only involve the absurdity of
hazarding or sacrificing an institution of learning, the successful
and useful operation of which within the bounds of conference was
clearly the main inducement for the great outlay already made,
"but be in disregard of the rights and interests of those
residing elsewhere than at Millersburg, who have contributed,
either by purchasing scholarships or donations, very much more than
has been raised at that place. There is mention made in the act of
1860, and also in the certificates of scholarships, of the college
being established at Millersburg, but the language used does not
import an agreement that it shall permanently remain there. On the
contrary, we think it should, as it can fairly, be interpreted as
merely descriptive of the institution. In our opinion, therefore,
there exists no contract or undertaking, express or implied, for
the continuance of the institution at Millersburg any longer than
its useful and successful operation requires."
It results from these views that the decree below does not give
effect to an act of the General Assembly of Kentucky that is
repugnant to the Constitution of the United States. The decree must
therefore be
Affirmed.
