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was the mere agent or servant of the defendants in There must even in equity which sometimes enforces doing the work they would be liable for his negli- these pledges of property to be acquired, be some

Here when gence in leaving the coal hole open, but if his em- subject for the contract to attach to. ployment was an independent one, they would not the mortgage was made there was no contract be liable. This is in accordance with the distinc- with the express company for the carriage of freight. tion recognized in numerous cases in England and See, also, Brachett v. Blake, 7 Metc. 335 ; Mulhall v. this country. It is well settled that employers not Quinn, 1 Gray, 105; Law v. Pew, 198 Mass. 347; 11 personally interposing or giving directions respect- Am. Rep. 357. ing the manner of the work, but contracting with a

In the case of Ex parte Singer Sewing Machine Co., third person to do it, are not liable for a wrongful Re Blackwell, 12 Ir. L. T. Rep. 57, decided by the or negligent act in the performance of the contract, Irish Court of Bankruptcy on the 16th of last month, if what was agreed to be done was lawful. Gray the familiar sewing machine contract question came v. Hubble, 32 L. J. Rep. (N. S.); Fillard v. Richardl- up. A sewing machine was let on hire to a trader by son, 3 Gray, 349 ; Blake v. Ferris, 5 N. Y. 48 ; the company mentioned on an agreement that the Painter v. Mayor of Pittsburgh, 10 Wright, 213. The trader should pay a certain monthly rent, and keep fact that the contractor is paid by the day does not the machine in his own custody, and that, if he necessarily destroy the independent character of his should fail to perform on his part, the machine employment. Forsythe v. Hooper, 11 Allen, 419 ; might be taken by the company which might also Corbin v. America Mills, 27 Conn. 274. If one ren- recover the amount of rent in arrear. He had an ders service in the course of an occupation repre- option to purchase the machine within a year when senting the will of his employer only as to the re- the payments of rent were to apply toward the pursult of his work, and not as to the means by which chase-money. He paid rent for two months, and it is accomplished—it is independent employment. then did not pay for nine months when he became See Pack v. Mayor of New York, 8 N. Y. 222 ; bankrupt. The company claimed the machine from Barry v. City of St. Louis, 17 Mo. 121 ; Mercer v.

the assignee in bankruptcy and asked to be perJackson, 54 Ill. 397.

mitted to prove for the balance of rent due. The The Supreme Judicial Court of Maine, in the case

matter was referred to a jury to determine whether of Emerson v. Europ. & N. Am. Railway Co., 67

there was a custom or usage in Ireland, allowing Me. 387 holds that a mortgage by a railway com

such contracts of sale of sewing machines as this pany of "all its right, title and interest in and to

one, where the title to the property was to remain in all and singular its property, real and personal, of

the vendor after he had parted with possession.

The whatever nature and description now possessed, or

The jury found that there was such a custom. to be hereafter acquired, including all its rights, court held that the custom was not an unreasonable privileges, franchises and easements,

one, and thus the company was entitled to resume

cannot be regarded at law as including money earned by the possession of the machine, and this, notwithstandrailway company in carrying freight for an expressing its laches in allowing the installments of rent

to remain so long overdue. The court, however, excompany under a contract entered into after the mortgage was made. This is an application of the pressed its disinclination to favor such contracts common-law maxim of Nemo dat quod non habet. by refusing to grant the successful party any costs. There are apparent departures from this principle, gives instances where the Irish courts have con

The Irish Law Times in an article upon the decision but those are where the results are produced by demned these contracts as “ entirely at variance other principles not inconsistent with it. Thus where property has been added to mortgaged prop, Kerwan, Q. B. Div., Feb. 4, 1878; Ex parte Harpus, Re

with all principles of fair trading,” (Mackintosh v. erty by way of accession, natural or artificial, and

Smith, 9 Ir. L. T. Rep. 52) and cites several articles the property annexed cannot be separated from the

and cases which have appeared in the ALBANY LAW other without much injury, it is permitted to remain. For instance, a house is built on mortgaged courts. See 15 Alb. L. J. 64 ; 16 id. 442; 17 id. 98.

JOURNAL as sustaining the view taken in the Irish land or a fixture is added to a house. And a man may sell property of which he is potentially in pos- The Supreme Court of Ohio in Matter of Victor, 31 session, such as the wine his vineyard will produce, Ohio St. 206, passes upon a peculiar question, and one the grain his field will grow, the milk his cow will which has not heretofore been presented before the yield, what may be taken at the next cast of his courts, namely, whether to render valid a commutafishing net, fruits to grow on his trees, or young tion by the executive of the punishment of a conanimals not in existence, the offspring of animals, victed and sentenced criminal, the criminal must owned by him. 2 Kent's Com. 468, note (a). The accept or acquiesce in such commutation. The thing sold must, however, be specific and identi- court holds that the commutation is presumed to be fied. A person cannot sell the products of a field for the culprit's benefit, and is valid without any he expects to own. Farrar v. Smith, 64 Me. 74. 'action on his part.

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v. The Grand Junction Railway Company, 3 M. &

W. 244, where it was held in a case of a collision THE Court of Appeals in Robinson v. New York

between two trains, that the plaintiff must show the

accident to be due exclusively to the defendant's 11, manifested an unusual degree of timidity or rather caution in regard to the question of imputed fendant, with other persons having charge of the

negligence, and that joint negligence of the denegligence. The facts of that case were that the

train in which the plaintiff was traveling, was not plaintiff — a woman was invited to ride by one

sufficient. Conlon in his carriage and accepted the invitation.

In The Milan, Lush. Adm. 388, Dr. Lushington Conlon was a fit and proper person to manage a

said he would not be bound by and did not approve horse; but through the alleged negligence of the

of Thorogood v. Bryan, and in the note to Ashby v. defendants' servants, its train was run against the

White, 1 Smith's L. C. (6th Eng. Ed.) 266, that case carriage, and plaintiff was injured. The defendants

was sharply criticised. See, also, S. C., 7th Am. alleged that the negligence of Conlon contributed to the injury, and that this negligence was imput

Ed. at p. 481. And consult Rigby v. Hewitt, 5 Exch. able to the plaintiff

, but the court below charged 240, and Greenland v. Chaplin, id. 243. that even if Conlon was negligent the plaintiff

The question was again directly involved in Child would not be responsible therefor, and this ruling

v. Hearn, 22 W. R. 864; L. R., 9 Ex. 176. The facts was sustained by the Court of Appeals. The opin. of that case were as follows: The plaintiff, a plateion of the court ends thus: “It is not intended by layer, in the employment of a railway company, this decision to establish a rule which will embrace

was returning from work along their line upon a cases not within the facts developed in this case, as

trolly, when some pigs belonging to the defendant construed by the court and found by the jury.”

escaped from his field, which adjoined the railway, The English decisions are undoubtedly in favor

and running on to the line in front of the trolly, of privity in negligence. The point was first raised upset it, thereby causing the injury to the plaintiff m Thorogood v. Bryan, 8 C. B. 115, which was an

for which he sought to recover damages from the action under Lord Campbell's act. The deceased,

defendant. A verdict was entered for the plaintiff, wishing to alight from an omnibus in which he was

which the court afterward set aside, holding that a passenger, got out while it was in motion, and

the company had not maintained a sufficient fence without waiting for it to draw up to the curb; and, under 8 Vict., c. 20, s. 68, and that the plaintiff in doing so, he was knocked down and fatally in

could not recover, since he was identified with the jured by an omnibus belonging to the defendant.

company whose line he was using for their purposes.

The Williams, J., who tried the cause, told the jury that Bramwell, B., in his judgment, observed: if they were of opinion that want of care on the plaintiff was a servant of the owner of property part of the driver of the omnibus in which the

which was unfenced through the owner's default. It deceased was traveling, or on the part of the deceased is manifest, as I have before said, that if the pigs himself, had been conducive to the injury, their got on to that unfenced property through its owner's verdict must be for the defendant. A rule for a default, the owner could not maintain an action; new trial on the ground of misdirection having been and, if so, it is impossible to say that a third person obtained, was, after consideration, discharged by using the property through the license of the owner, the court, Coltman, J., observing: “The negligence and on his behalf, can. The servant can be in no that is relied on as an excuse is not the personal | better position than the master when he is using negligence of the party injured, but the negligence the master's property for the master's purposes. of the driver of the omnibus in which he was a Therefore, without saying any thing as to the passenger. But it appears to me that, having trusted decision in Thorogood v. Bryan, it is sufficient to say the party by selecting a particular conveyance, the that the defendant's pigs escaped through the negliplaintiff has so far identified himself with the owner gence of the plaintiff's employer, and that, having and her servants, that if any injury results from

met with the accident through his employer's neg. their negligence he must be considered a party to ligence, the plaintiff can maintain no action against it.” To the same effect Maule, J., says: "On the the defendant." part of the plaintiff, it is suggested that a passen- This decision has recently been followed by the ger in a public conveyance has no control over the same court in the case of Armstrong v. The Landriver. But I think that cannot with propriety be cashire and Yorkshire Railway Company, 23 W. R. said. He selects the conveyance.

He enters into a L. R., 10 Ex. 47. The plaintiff, who was in contract with the owner, whom, by his servant, the the employ of the London and North-Western Raildriver, he employs to drive him. If he is dissatisfied way Company, sued the defendants, over whose line with the mode of conveyance, he is not obliged to

the North-Western bave running powers, for comavail himself of it."

pensation for an injury he had sustained from a A like decision was come to in the case of Bridye | collision between some of the defendant's trucks


and a North-Western train in which he was travel- company who were the proximate cause of the ining. It appeared that the North-Western train jury suffered by them. Surely a most preposterous being late, the station-master at one of the defend

consequence. I am, however, prepared to decide

the present case on the authority of Thorogood v. ant's stations ordered the trucks in question to be

Bryan, which, though it may have been questioned shunted, the signals being put at “danger" while and impeached, has never been overruled, and has this was being done. Notwithstanding this, the

since been acted on. But, as I have already said, I driver of the North-Western train came on, and

think this case is distinguishable from that case, and the collision ensued by which the plaintiff was

in a point that is favorable to the defendants, and

that the latter are entitled to avail themselves of it injured. The jury found that there was negligence upon this rule, notwithstanding that there is no in the defendants in shunting at a time when the cross rule. Certain points were put by the learned North-Western train was overdue, and in the driver judge to the jury, and he reserved leave to the

plaintiff to enter a verdict on the ground that, if of the latter in disregarding the signals, and must

the findings of the jury were supported by the evibe assumed that it was on the part of the defend-dence, and these findings showed the plaintiff to be ants negligence proximately contributing to the entitled to the verdict, then it should be entered for

him. accident. A verdict was thereupon entered for the

Now, in assenting to leave to move to enter

a verdict against him, the learned counsel for a dedefendants, which the court refused to disturb.

fendant does not consent to have the matter decided BRAMWELL, B., said: “I am of opinion that this against him and the rule made absolute without rerule must be discharged. It is impossible, I think, gard to the verdict of the jury. He must be taken to distinguish the present case from Thorogood v.

to adopt the proceedings only so far as they are supBryan, except in one particular, and that is in the ported by the evidence. The question whether there defendants' favor. It must not be supposed, so far

was any evidence of negligence in the defendants as my individual opinion is of any value, that I am

was left open. The point may be put thus: The at ali dissatisfied with the decision in Thorogood v.

defendants, doubtless, were guilty of negligence, Bryan. It has been admitted by Mr. Pope that, if

but it was negligence the consequence of which the his contention is right, the owner of a bale of goods,

other railway company might have avoided by the which was being carried by the defendants, and had

use of reasonable care; and it is clear to my mind been damaged by an accident similar to the one from

that the defendants might have maintained an acwhich the plaintiff has received injury, would be

tion against the London and North-Western Railentitled to have an action. The learned counsel was

way Company to recover compensation for the also constrained to admit that if a carriage had been damage sustained by their coal wagons by reason of let to hire and injured by the joint negligence of its

the collision, for which the case of Davies v. Mann,

ubi driver and the driver of another carriage which

sup., is an authority; and if that be so, it would came into collision with it, the owner of the hired

be highly unreasonable that the plaintiff should carriage could maintain an action for compensation

have this action against the defendants." for such damage. These, I confess, seem to me to POLLOCK, B., said: “I also think that this rule be startling propositions. But there is another diffi- should be discharged. It is sufficient to say that I culty. If the present action is maintainable against think the case is not distinguishable from Thorogood the defendants, it is upon the ground that they were v. Bryan, and is governed by that decision. I must joint wrong-doers with the London and North- not be taken as in any way expressing dissatisfacWestern Railway Company? If so, there is this tion with the decision in that case. The only difficulty, that one of the wrong-doers is so through difficulty I have had in applying it has been in concontract, and the other by tort. Can there be a sequence of the use of the word “identified' in the joint liability with regard to the negligence or judgment of the court there. If the court are to be breach of duty toward the plaintiff, and no joint taken as meaning by that word that the plaintiff, by liability as to the contract under which he was be- his own proper conduct, as by the selection of the ing carried ? Would another action be maintainable omnibus in which he was riding, so acted as to conagainst the London and North-Western Railway stitute the driver his agent, the proposition would, Company ? Suppose that the plaintiff had merely I think, be an unsustainable one. But I do not unbeen an ordinary passenger, could he maintain one derstand the word to be used in that sense. I take action for breach of contract against the London the court to mean by it that, under the circumstanand North-Western Railway Company which carried ces of the case, the plaintiff, for the purpose of the him, and also another action against the defendants, action, must be taken to be in the same position as through whose negligence the coal wagons which the owner of the omnibus or his driver. The case caused the accident were left on the line of rail- of Waite v. The North-Eastern Railway Company, way? These are questions worthy of consi leration; E. B. & E. 719, is an illustration of this, where the and in this particular case there is, I thi:k, good child, as far as regards contributory negligence, was reason for holding that the rule in Thorogood v. Bryan 'identified' with its grandmother, in whose charge should apply, however unreasonable it may at first it was, although it could not be said that the child sight appear to be. The plaintiff cannot bring an exercised any volition in the selection of its grandaction against the London and North-Western Rail- mother for its companion. If, then, the rule laid way Company, because he was their servant; and di wn by Parke, B., in Bridge v. The Grand Junction yet it is said that he may maintain an action against Railway Company, 3 M. & W. 244, that 'although another company, the defendants, who only con- there may have been negligence on the part of the tributed to, and certainly were not the proximate plaintiff, yet, unless he might, by the exercise of orcause of the mischief. Ít would follow from that, dinary care, have avoided the consequence of the therefore, that the servants of a railway company defendants' negligence, he is entitled to recover; if, may in case of a collision sue what I may call the by ordinary care, he might have avoided it, he is opposing company, but that they cannot sue the the author of his own wrong,' be adhered to, it seems to me that no hardship follows, inasmuch as therefor Artz v. C., R. I. & P. Railway Co., 34 Iowa, the plaintiff is only in the same position as the don- 153. But the case is like that of Beck v. East Riter key in the case of Davies v. Mann, 10 M. & W. 546, and, notwithstanding the carelessness of the driver

Ferry Co., 6 Rob. 82, where the plaintitf and the of the train he was traveling by, he would be enti- one guilty of negligence were engaged in a joint tled to recover against the defendants, supposing enterprise. In the Iowa case, three neighbors, one that their negligence was of a similar character to

of whom was plaintiff's intestate, were traveling for that of the defendant in Davies v. Mann. It may be said, why should he not have a right of action

a common purpose in a wagon belonging to none of against both companies? The answer to that ques

them, but procured for the purpose.

They drove tion is that a man may have an action against two by turns. The case was correctly decided, and is tort-feasors for any act causing the injury; but there

not an authority against the doctrine of the princiis no hardship in saying that, if two independent persons are in a position somewhat hostile to each

pal case. other, then the right to maintain a separate action

In Bennett v. The Nero Jersey Railroad Co., 7 against one may be an answer to an action against Vroom, 225 ; S. C., 13 Am. Rep. 435, it was held the other, for the plaintiff must show that the neg

that where a passenger in a horse car is injured by ligence of the one whom he sues was the proximate cause of the accident. Therefore, I think that the

the carelessness of the engineer of a railroad comdefendants are entitled to our judgment.

pany, in the management of his locomotive, it is no It is to be observed of this case, that the plaintiff

defense to show contributory negligence in the was the servant of the company in whose train he

driver of the horse car. was traveling, and was therefore precluded from In Lockhart v. Lichtenthaler, 46 Penn. St. 151, this suing them for the injury which arose from the neg

question was considered at great length. The ligence of their servants.

action was brought to recover damages under a In this country the prevailing opinion is unques

statute by the widow and children of one killed by tionably against imputed negligence. Shearman & a collision between a train of cars and oil barrels Redfield on Negligence, $ 46 ; Wharton on Negli

owned by the defendant, and placed too near the gence, $ 395. In Chapman v. The New Haven Rail- track by his servants. The deceased was a brakeroad Co., 19 N. Y. 341, the Court of Appeals of man on a car belonging to a coal company but which this State held that a passenger by railroad is not so was drawn by a locomotive belonging to the railidentified with the proprietors of the train convey- road and controlled by its servants. The court held ing him, or their servants, as to be responsible for that the deceased was not a servant of the railroad negligence on their part, and could recover for per- company, but that he “must be considered in the sonal injuries from a collision through negligence light of a passenger in charge of property being of the defendant, although there was such negligence conveyed with himself hy the railroad company for contributing to the collision on the part of the train his employers,” and that if the negligence of the railconveying him, as would have defeated an action road directly contributed to the accident, the defendby its owners. And in Colegrove v. N. Y. & N. H. ant would not be liable. After a review of the auR. R. Co., 20 N. Y. 492, it was held that the in-thorities, Thompson, J., who delivered the judgment jured passenger could maintain his action against of the court, said : “If in this case there was no conthe proprietors of both, on the ground of their con- tributory negligence chargeable to those conductcurring negligence. These cases were followed and ing the train, by which the cars in charge of the approved in Webster v. Hudson River Railroad Co., deceased were with himself being conveyed; in 38 N. Y. 260.

other words, if their negligence did not directly So in Metcalf v. Baker, 1 Abb. (N. S.) 431, the contribute to the disaster, although they may have Superior Court of New York, at General Term, held been negligent in a general sense, the defendants as in the principal case, that one riding on invita- will be answerable if the act of their servants or tion with the owner of a private vehicle was not agents was the proximate cause of it.

The neglichargeable with his negligence contributing to an gence on the part of the train which would be a injury, occasioned by the negligence of the defend- defense must be directly involved in that result ; it ant, to the plaintiff; and to the same effect are Rob- must by itself, or concurring with the defendants, inson v. N. Y. C., etc., R. R. Co., 65 Barb. 146 ; be the proximate cause of the death. For instance, Sheridan v. Brooklyn City R. R. Co., 36 N. Y. 39; running too rapidly on a road in bad repair, Knapp v. Dagg, 18 How. Pr. 165.

driving instead of drawing the train, would not But in Payne v. The Chicago, Rock Island & Pa- abstractly be such negligence as would be a decific R. R. Co., 39 Iowa, 523, where the plaintiff was fense. To be such the consequences of these acts, injured at a railroad crossing, by a collision between or some of them, must have directly entered into the wagon in which he was riding and defendant's and become active agents in the very disaster itself. train, the court decided, without discussing the This must be the rule of all such cases." question, that the negligence of the one who was

Smith v.

Smith, 2 Pick, 621, is frequently cited as and as an authority in support of the rule of Thorogood


v. Bryan, but all that was decided in that case was After an elaborate presentation of the facts, Prof. that one who is injured by an obstruction placed un

Ordronaux sums up the legal aspects of the question lawfully in a highway cannot maintain an action

as follows: for damages if it appears that he did not use ordinary which admit of no disproof, point conclusively to the

Tho foregoing facts, based upon historical data care by which the obstruction might have been

duty which the State owes to itself, as well as to the avoided. This rule is well established and is, we county of New York, of seeing that its gifts to charittake it, not in conflict with the principal case.

See able uses are no longer diverted to other and unauStiles v. Geesey, 71 Penn. St. 439 ; Cleveland, Colum- thorized purposes. And whatever may be said in genbus & Cincinnati R. R. Co. v. Terry, 8 Ohio St. 570 ;

eral of its authority over all eleemosynary corpora-,

tions founded by itself, to visit, investigate and direct Williams v. Mich. Cent. R. R. Co., 2 Mich. 259 ;

their management, we shall find that the common law Murphy v. Deane, 3 Am. Rep. 390.

of England, which became, under the first ConstituIn Puterbaugh v. Reasor, 9 Ohio St. 484, the plain- tion of this State, the common law of New York, ex. tiff put R. in charge of his team. R. and the de- plicitly provides means by which the sovereign aufendant engaged in a fight which frightened the team

thority can always interfere to mould the character of and it ran away, and one horse was killed. The

a public charity, for the greatest good to the greatest

number. Under the shadow of its time-honored defendant was held not liable because the plaintiff, principles we shall accordingly find the following having placed R. in charge of the team, was respons propositions arranging themselves on the side of the sible for his negligence. Shearman and Redfield State's uuquestionable rights, viz. : cite this case as well as that of Cleveland, etc., v.

First. That if the Society of the New York HogTerry, and Smith v. Smith, supra, as authorities for

pital, originally founded by private benefaction, be, in

point of law, a private corporation, although dedicated the rule of Thorogood v. Bryan, but they are obvious

to public charity, then the Bloomingdale Asylum, ly not so as to the question of privity in negligence. founded and built wholly by State subsidies, satisfies

every condition necessary to make it a public charity.

Second. The principle is indisputable that the THE RELATION OF THE BLOOMINGDALE

founder of an eleemosynary corporation may dispose ASYLUM TO THE STATE.- ANOTHER

and order it as he will, and may give it whatever PHASE OF THE QUESTION IN THE

shape he pleases, provided it be a legal one. 1 Kyd DARTMOUTH COLLEGE CASE.

on Corp. 50; 2 id. 195; Dartmouth College v. Wood|NE of the most interesting documents, from a legal ward, 4 Wheat. 518.

standpoint, submitted to the Legislature during its Third. Before the passage of the act of 1816 there recent session, was a report of the State Commissioner was no Bloomingdale Asylum in existence. This act in Lunacy - Prof. Ordronaux on the relations of the made annual grants to the Society of the New York State to the Society of the New York Hospital, and more Hospital for the specific purpose of founding and particularly as to the right of the county of New York erecting it as a public charity. Chap. 203, Laws of to the aid of the Bloomingdale Asylum in caring for 1816; Assembly Doc. 263, March, 1831. The State, the pauper insane. The Society of the New York being thus the sole founder (fundator perficiens) of Hospital, of which the Bloomingdale Asylum forms a that institution, had the exclusive right, from its indepartment, was incorporated by royal charter in 1771, ception, to direct its management. The fact that it the motive or reason therefor being thus expressed in has allowed it to remain in the hands of the Society of the charter: “We, taking into our royal consideration the New York Hospital, as trustees, does not in the the beneficial tendency of such an institution within least invalidate its present right to discharge such our said city, calculated for relieving the diseases of the trustees and appoint others of its own selection; or to indigent and preserving the lives of many useful mem- direct the present trustees as to the future managebers of the community, are graciously pleased to grant,' ment of such trust for cujus est dare ejus est disponere. etc. This preamble clearly indicated the class of citi- Nor does lapse of time bar these rights in respect to zens to be benefited by the hospital.

the State. For this is not recalling the charity but In 1810 this charter was amended by the Legislature only directing its application. The State has always at the request of the society. In 1816 the society was the right to follow its gifts to charitable uses, they beauthorized by statute to build the Bloomingdale Asy-ing public gifts, and to ascertain how they are being lum, and the sum of $10,000 was directed to be paid carried out. annually from the State treasury for its support.

Fourth. Were it even true that the State had only Since that act the State has contributed to this Asy

added its funds to those already possessed by the Solum $440,000 for the specific purpose of building and ciety of the New York Hospital, and thus joined in maintaining a public asylum for the insane; it bas the erection of the Bloomingdale Asylum, that fact beside contributed to the Society of the New York would not divest it of authority, for, as we have elseHospital over $800,000.

where shown, it is an established principle of the comBut the Governors of the Bloomingdale Asylum mon law that if the King and a private man join in have treated these trust funds as a private gift to a endowing a charitable corporation, the King alone shall private corporation, and have refused and still refuse be the founder. Kyd on Corp. 51. Under that same to receive or care for the pauper insane, taking the principle, also, there could be no partnership between ground that “this asylum was particularly intended the King and private citizen, and all that the King in for those able to pay.” They also claim, as England might do, in relation to granting franchises, claimed in the Dartmouth College case, that their the State with us may do. Hence the right to appoint charter, being from the Crown, is a contract beyond visitors being always inherent in the founder of a the control or limitation of the State.

charity, the State could at any time have done the


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