and by the acts of incorporation, in the governors or trustees, who are the assignees of the rights of the founders, and stand in their places; it follows, that the trustees of a college may exercise their visitatorial power in their sound discretion, and without being liable to any supervision or control, so far as respects the government and discipline of the institution, and so far as they exercise their powers in good faith, and within the limits of the charter. They may amend and repeal the by-laws and ordinances of the corporation, remove its officers, correct abuses, and generally superintend the management of the trusts. This power of visitation, Lord Hardwicke admits to be a power salutary to literary institutions, and it arose from the right which every donor has to dispose, direct, and regulate his own property as he pleases; cujus est dare ejus est disponere. Though the king, or the state, be the incipient founder, (fundator incipiens,) by means of the charter or act of incorporation, yet the donor or endower of the institution, with funds, is justly termed the perficient founder; (fundator perficiens,) and it was deemed equitable and just at common law, that he should exercise a private jurisdiction as founder in his forum domesticum, over the future management of the trust. But as this visitatorial power was, in its nature summary and final, and therefore liable to abuse, Lord Hardwicke was not disposed to extend it in equity. It is now settled, that the trustees or governors of a literary or charitable institution, to whom the visitatorial power is deemed to vest by the incorporation, are not placed beyond the reach of the law. As managers of the revenues of the corporation, they are subject to the general superintending power the Court of Chancery, not as itself possessing a visitatorial power, or a right to control the charity, but as possessing a general jurisdiction in all cases of an abuse o trust, to redress grievances, and suppress frauds. Where a corporation is a mere trustee of a charity, a court of equity a 2 Vesey, 472. 10 Co. 33. a. of will yet go farther; and though it cannot appoint or remove a corporator, it will, in a case of gross fraud or abuse of trust, take away the trust from the corporation, and vest it in other hands. - There is a marked and very essential difference between civil and eleemosynary corporations on this point of visitation. The power of visitors, strictly speaking, extends only to the latter; for though in England, it is said that ecclesiastical corporations are under the jurisdiction of the bishop as visitor, yet this is not that visitatorial power of which we have been speaking, and which is discretionary, final and conclusive. It is a part of the ecclesiastical polity of England, and does not apply to our religious corporations. The visitatorial power, therefore, with us, applies only to eleemosynary corporations. Civil corporations, whether public, as the corporations of towns and cities; or private, as bank, insurance, manufacturing, and other companies of the like nature, are not subject to this species of visitation. They are subject to the general law of the land, and amenable to the judicial tribunals for the exercise and the abuse of their powers. The way in which the courts exercise common law jurisdiction over all civil corporations, whether public or private, is by writ of mandamus, and by information in the nature of quo warranto. It is also well understood, that the Court of Chancery has a jurisdiction over charitable corporations for breaches of trust. It has been much questioned, whether it had any such jurisdiction over any other corporations, than such as held to charitable uses. The better opinion seems, however, to be, that any corporation chargeable with trusts, may be inspected, controlled, and held accountable in chancery, for an abuse of such trusts. With that exception, the rule seems to be, that all corporations are amenable to the courts of law, and there only ac a Story, J. 4 Wheaton, 676. b 1 Blacks. Com. 480, 481. c 2 Kyd, 174. cording to the course of the common law, for nonuser or misuser of their franchises." --V. Of the dissolution of Corporations. A corporation may be dissolved, it is said, by statute; by the natural death of all the members; by surrender of its franchises; and by forfeiture of its charter, through negligence, or abuse of its franchises.b This branch of the subject affords matter for various and very interesting inquiries. In respect to public corporations, which exist only for public purposes, as counties, cities, and towns, the legislature, under proper limitations, have a right to change, modify, enlarge, or restrain them, securing, however, the property for the use of those for whom it was purchased. A public corporation, instituted for purposes connected with the administration of the government, may be controlled by the legislature, because such a corporation is not a contract within the purview of the constitution of the United States. In those public corporations, there is in reality but one party, and the trustees or governors of the corporation are merely trustees for the public. But a private corporation, whether civil or eleemosynary, is a contract between the government and the corporators, and the legislature cannot repeal, impair, or alter the rights and privileges conferred by the charter, against the consent, and without the default of the corporation, judicially ascertained and declared. This great principle of constitutional law was settled in the case of Dartmouth College v. Woodward, and it had been asserted and declared by the Supreme Court of the United a Attorney General v. Utica Insurance Company, 2 Johns. Ch. Rep. 384-390. 1 Vesey, 468. 2 Atk. 406, 407. 3 Merivale, 375. 4 Wheaton's App. 20, 21. b 1 Blacks. Com. 485. c 4 Wheaton, 318. States, in several other cases, antecedent to that decision.a But it has become quite the practice, in all the recent acts of incorporations for private purposes, for the legislature to reserve to themselves a power to alter, modify, or repeal the charter, at pleasure; and though the validity of the alteration, or repeal of a charter, in consequence of such a reservation, may not be legally questionable, yet it may become a matter of serious consideration in many cases, howfar the exercise of such a power could be consistent with justice or policy. If the charter be considered as a compact between the government and the individual corporators, such a reservation is of no force, unless it be made part and parcel of the contract. If a charter be granted, and accepted, with that reservation, thereseems to be no ground to question the validity and efficiency of the reservation; and yet it is easy to perceive, that if such a clause, inserted as a formula in every charter and grant of the government, be sufficient to give the state an unlimited control, at its mere pleasure, of all its grants, however valuable the consid r ation upon which they may be founded, the great and salutary provisions in the constitution of the United States, so far as concerned all grants from state governments, will become of no moment. These legislative reservations of a right of repeal, ought to be under the guidance of extreme moderation and discretion. An absolute and unqualified repeal, at once, of a charter of incorporation of a money or trading institution, would be attended with most injurious and distressing consequences. According to the settled law of the land, upon the civil death of a corporation, all its real estate, remaining unsold,reverts back to the original grantor and his heirs. The debts due to and from the corporation are all extinguished. Neither the stockholders, nor the di a Fletcher v. Peck, 6 Cranch, 88. The State of New-Jersey v. Wil son, 7 ibid. 164. Terret v. Taylor, 9 ibid. 43. The Town of Pawlet v Clark ibid 292. b Parsons, Ch. J. 2 Muss. Rep. 146. rectors or trustees of the corporation, can recover those debts, or be charged with them, in their natural capacity. All the personal estate of the corporation vests in the people,as succeeding to this right and prerogative of the crown, at common law. A very guarded and moderate example of these legislative reservations annexed to a charter, is that contained in the act of the legislature of this state, of February 28th, 1822, ch. 50. where it is declared, by way of express proviso, that the legislature may, after the expiration of five years, alter and modify and expunge the act, upon condition, nevertheless, that no alteration or modification shall annul or invalidate the contracts made by or with the corporation, and that the corporation may still continue a corporation, so far as to collect, and recover, and dispose of their estate, real and personal, and` pay their debts, and divide the surplus. But there is a check upon this power of repeal in the ebnstitution of this state, which requires the assent of two thirds of the members elected to each branch of the legis lature, to every bill altering any body politic or corporate.¿ I think there can be no just ground to doubt of the application of this provision to a bill repealing a charter. Το alter is to make a thing otherwise than it would be, and it means every degree and species of change. To curtail or eut down corporate powers, is to alter them, equally as to enlarge them would be to alter them. That construction of the constitution would be very inadmissible, which would prohibit the legislature, without the assent of two thirds, to interfere, and alter, in any degree short of annihilation, the charter of a company, and yet would allow it to be destroyed by a bare majority. Upon such a construction, the legislature could destroy by the will of a majority, because that a 1 Lev. 237. Edmunds v. Brown & Sillard. Co. Lill. 13. b. '3 Bure: 1868. arg. 1 Blacks. Com. 484. 2 Kyd on Corp. 516. Art. 7. s. 9. |