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 AMERICAN BAR ASSOCIATION, 
 
 THE DARTMOUTH COLLEGE CASE AND 
 PRIVATE CORPORATIONS. 
 
 A PAPER PFliSENTED BY 
 
 WILLIAM P. WELLS, 
 
 OF DETROIT. 
 
 Xinthi Annual NIeeting, August 19, 1886. 
 
 [Reprinted from the Report of the Transactions of the AssociaHon.'] 
 
 
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THE 
 
 AMERICAN BAR ASSOCIATION. 
 
 THE DARTMOUTH COLLEGE CASE AND 
 PRIVATE CORPORATIONS. 
 
 A PAPER PRESENTED BY 
 
 WILLIAM P. WELLS. 
 
 OF DETROIT, 
 
 Ninthi A.nnua.1 Xleeting, A^tigtast 19, 1886, 
 
 \_Reprinted from the Report of the Transactions of the Association.'\ 
 
 Dando Printing and'?ublishing Co. 
 
 !£$*.;.•, :., :i* ;,; 
 
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READ BY 
 
 WILLIAM P. WELLS. 
 
 The Dartmouth College Case and Private Corporations. 
 
 Chancellor Kent, writing in 1826, thus expressed himself 
 concerning the Dartmouth College case : * "It contains one 
 of the most full and elaborate expositions of the constitutional 
 sanctity of contracts to be met with in any of the reports. 
 The decisi^iLinjthat case did more than any other single act 
 proceeding from the authority of the United States to throw 
 an impregnable barrier around all rights and franchises derived 
 from the grant of government and to give solidity and 
 inviolability to the literary, charitable, religious and commer- 
 cial institutions of our country." 
 
 Another learned commentator, Mr. Justice Cooley, writing 
 nearly fifty years later, adds to his statement of the doctrine 
 established in that case the following rf "It isjULnder the 
 protect jon of t he decision in the Dartmouth College case that 
 the most enormdiIF*Tmd i;hfeatening powers in our country 
 have been created, some of the great and wealthy corporations 
 having greater influence in the country at large and upon the 
 legislation of the country than the states to which they owe 
 their corporate existence. Ever^_prrvilege granted or right 
 conferred, no matter by what means or on what pretence, 
 being made inviolable by the constitution, the government is 
 
 * 1 Kent's Comm. 419. 
 
 t Cooley's Const. Lim., 279-80, 
 
 (3) 
 
 viOOSi 
 
frequently found stripped of its authority in very important 
 particulars by unwise, careless or corrupt legislation, and a 
 clause in tlie federal constitution, whose purpose was to pre- 
 clude the repudiation of debts and just contracts, protects and 
 perpetuates the evil." 
 
 During the period which has elapsed since Chancellor Kent 
 wrote, the great development of private corporations has taken 
 place in this country, their wealth and strength have im- 
 mensely increased, and they have become possessed, unques- 
 tionably, of vast and dangerous powers. And these contrasted 
 statements of the eifects of this decision present a most inter- 
 esting inquiry. The first represents an opinion which pre- 
 vailed in the profession and in the courts long after the 
 decision was made, and which still receives strong support 
 from the bar and from the decisions of the highest tribunals. 
 But it must be acknowledged that the second of the foregoing 
 statements is only a moderate expression of professional and 
 public opinion upon this important subject. While, on the 
 one hand, it is maintained that the original adjudication was 
 not only right in itself, but has been rightly affirmed and 
 applied in succeeding cases and should not be disturbed ; that 
 the court which originally pronounced it should not and will 
 not take any backward steps in respect to the doctrine estab- 
 lished ; on the other hand, not only has the correctness of the 
 decision been repeatedly challenged, but a swelling chorus of 
 denunciation, proceeding from lawyers and the press and the 
 people, assails it as fons et origo of monstrous wrong and per- 
 nicious consequences, and predictions manifold are not want- 
 ing that it must sooner or later be reviewed and reversed. 
 It cannot, therefore, be inappropriate for an association of the 
 bar of the country to consider whether the effect of this great 
 judgment has been beneficent or evil ; whether alleged abuses 
 of corporate powers and alleged corporate 'encroachments upon 
 public rights, which are at present engaging the solicitude of 
 lawyers, legislators and the people alike, are chiefly attributa- 
 ble to or find support in the decision ; whether corporations 
 
find in the courts under it an "impregnable barrier*' behind 
 which they may do mischief, or only a just shelter for their 
 clear rights; whether the judicial tribunals have only justly 
 applied a clause of the federal constitution, or have pressed 
 the decision too far, with evil consequences to the people. 
 Such consideration, in other words, involves an inquiry into 
 the connection, real or supposed, between the Dartmouth Col- 
 lage case and the pressing questions of corporate power, re- 
 sponsibility and restraint which are now the subjects of great 
 public anxiety. But the appropriate limits of the discussion 
 only allow a suggestive rather than a thorough treatment of 
 the topic. 
 
 The inquiry first requires a brief consideration of the 
 doctrine established and its applications. But it is unnecessary 
 to examine at any length the cases in the federal and state 
 courts in which the principle of the leading case has been 
 applied, for this would be only a repetition of familiar learn- 
 ing. It will be sufficient to notice the well-known rules flow- 
 ing from the original decision, which have been administered 
 for the protection of private business corporations. It will 
 appear that the decisions, during a period of sixty -five years, 
 have affirmed a body of legal rules, as applications of the 
 doctrine of the leading case, which, to say the least, consti- 
 tute a strong and valuable support of corporate privileges. 
 
 A strict statement of the decision in the principal case,* 
 in 1819, is, that the charters of J)rivate corporations are 
 contracts between the legislature and the corporation^, having 
 for their consideration the liabilities and duties which the 
 corporations assume by accepting them, and the grant of the 
 franchise can no more be resumed by the legislature, or its 
 benefits diminished or impaired, without the consent of the 
 grantees, than any other grant of property or valuable thing, 
 unless the right to do so is reserved in the charter itself. 
 
 * The Dartmouth College Case, 4 Wheaton, 518. 
 
6 
 
 This principle, in subsequent cases, was held to embrace all 
 contracts, executed and executory, between the state and 
 private corporations;* and it was also settled that the in- 
 alidity of legislation impairing the contract does not depend 
 upon the extent of the impairment, f 
 
 I. Let us consider, at the outset, the beneficial results to 
 corporations of the Dartmouth College case. It was inevitable, 
 when such a decision had been announced by the supreme 
 tribunal of the federal government, that corporations would 
 at once perceive its value to them, and be swift to seize upon 
 the advantages it conferred upon them. A mere glance at 
 the familiar classes of cases in which the principle has been 
 applied, shows their variety and importance, and that business 
 corporations have never failed to invoke its protection when- 
 ever their chartered rights have been drawn into controversy. 
 
 (1) In respect to the title to corporate property, derived 
 from the state, other than franchises, it was soon established, 
 by many decisions, that legislative grants to corporations vest 
 an absolute title, which could not be afterwards resumed or 
 controlled by the legislature, any more than an absolute grant 
 to individuals. It having been previously decided that legis- 
 lative grants are irrepealable,J the decision that a charter is a 
 contract, brought all property granted by a charter within the 
 protection given to grants to individuals. The value of such 
 a principle to private business corporations is at once apparent. 
 It is only necessary to refer to the history of state and federal 
 legislation, which has conferred upon them profuse grants of 
 property, to show how beneficial to corporations the adminis- 
 tration of this rule of law has been. The disposition to 
 
 * Green vs. Biddle, 8 Wheat. 1 ; Bridge Proprietors vs. Hoboken, 1 WalL 
 116. 
 
 t Planters' Bank vs. Sharp, 6 How. 327 ; Bronson vs. Kinzie, 1 How. 
 311. 
 
 t Fletcher vs. Peck, 6 Cranch, 87 ; Terrett vs. Taylor, 9 Cranch, 43 ; 
 Town of Pawlet vs. Clark, Ibid. 292 ; Davis vs. Gray, 16 Wall. 203. 
 
encourage corporate organization and effort, which was 
 especially indulged in the early history of the country, has 
 been wrought upon by corporations ever since with unflagging 
 energy and persistence. The public funds, the public domain, 
 seem to have been regarded as theirs by right, and state and 
 federal legislatures, influenced by all manner of solicitation 
 and importunity, and won by all the arts of conciliation and 
 persuasion, have enriched corporations by abundant and over- 
 flowing donations, and thus established and strengthened the 
 solid structure of their wealth and power. 
 
 (2) The same principle, by repeated adjudications, was held 
 to apply to grants of the franchises of corporations. They 
 were held to be property, and irrevocable by legislation, after 
 acceptance by the corporations, on the terms of the charters. 
 Greatas have been the value and benefits of the large grants 
 'of^foperty made to corporations, these are^sgEuall compared 
 with the worth of franchises which, once obtained, bestow 
 special and ample powers for the acquisition of property, its 
 consolidation in the hands of corporations, and afford to them 
 the ability and present the strong temptation to act solely for 
 their own aggrandizement, in disregard of the public interest. 
 In the early history of corporations in this country all charters 
 were special, each resting upon its own terms, and granting 
 varied privileges, always specially valuable. The development 
 of the country and its resources justified- the liberal encour- 
 agement of corporate enterprises, and the grants and fran- 
 chises conferred by charters were given upon sound consider- 
 ations of public policy and benefit to the country. But all 
 business corporations, by the subsequent application to them 
 of the decision in the principal case, gained enormous power, 
 and secured a firm foothold for action which inevitably resulted 
 in aggressions upon the public. 
 
 If it be said, as must be conceded, that the inviolability of 
 grants to corporations, other than franchises, confers upon 
 them no rights beyond those given by grants to natural 
 
8 
 
 persons, upon sufficient consideration, and rests upon principles 
 of justice and morality applicable alike to natural and 
 artificial persons, it may be replied that the chief advantage 
 which has been derived by corporations from the Dartmouth 
 College decisior^s the removal of their franchises from legis- 
 lative control, the constant exercise of which is essential to 
 the public welfare. By the bestowal of such franchises there 
 are conferred upon corporate and associated capital powers 
 which individuals cannot have, powers for good certainly, but 
 also powers for evil, which have been exercised to such public 
 detriment that the people have been stirred to their depths by a 
 sense of the immediate and urgent necessity of finding, 
 under the law and through the judicial tribunals, or above and 
 outside of them, some efiectual means of restraint upon 
 corporate abuses. 
 
 (3) In respect to the use and enjoyment of corporate pro- 
 perty and franchises, it must be admitted that the principal 
 decision has been the source of the same priceless advantages 
 to corporations. The special charters which were granted 
 under the influence of the sentiment favorable to corporations, 
 which prevailed alike in legislatjH'es and in courts, generally 
 included special privileges in th'e use of corporate franchises 
 and the carrying on of corporate business. When secured, 
 these are irrevocable. Corporations thereby become possessed 
 of the power to determine, without restriction and without 
 legislative control, the compensation they shall receive for 
 services, the profits from the use of their property, " its use 
 and the fruits of that use." In innumerable cases, in the 
 state and federal courts, the special provisions of charters to 
 this end have been held to be beyond legislative interference 
 under the principle of the DartmouthjCoUeg^ decision. The 
 benefits thereby^'secured to corporations need no description. 
 The advantages are obvious which they have derived from the 
 principle that the right to regulate and fix their own compen- 
 sation fof^ervices results from their general power to carry on 
 
9 
 
 the business for which they are organized, and that such com- 
 pensation must be determined by the corporate body itself. 
 The authorities to this effect were uniform* until the compara- 
 tively recent decisions of the Supreme Court as to the regula- 
 tion of corporate business, which will be considered hereafter. 
 It is against this right and this power of corporations to 
 determine their own charges, and the undeniable abuses thereof, 
 that the public sentiment referred to has been especially 
 directed, and which, not yet wholly allayed, though diminished, 
 has, unintelligently perhaps, found in the leading case the 
 sole source of corporate injuries to the public. 
 
 (4) The exemption of private corporations from taxation 
 altogether and taxation at special and favorable rates, under 
 charter provisions, have been of such advantage to them that, 
 more than any other of their privileges, perhaps, these have 
 encountered the disapproval and opposition of the people and 
 the profession ; and the established rules of law protecting 
 such exemptions have challenged, probably, more severe 
 criticism than any application of the Dartmouth College 
 decision. The principle that the legislature may make an 
 irrevocable contract of exemption from taxation does not rest 
 in its origin upon that decision, It found its earliest asser- 
 tion in the case of New Jersey vs. Wilson, f in 1812, and the 
 succeeding cases which affirm the rule profess to rest upon 
 that case. 4! The decision was, that under the constitution 
 the repeal of a law granting total or partial exemption from 
 
 *Penn. K. R. Co. vs. Sly, 65 Penn. St. 205; Phil., Wilm. & Bait. R. R. 
 Co. vs. Bowers, 4 Houst. 506; Hamilton vs. Kutte, 5 Bush, (Ky.) 458. 
 
 t 7 Cranch, 164. 
 
 X Gordon vs. Appeal Tax Court, 3 How. 133 ; Piqua Bank vs. Knoop, 
 16 How. 369 ; Ohio Life and Trust Co. vs. Debolt, 16 How. 416 ; Dodge 
 vs. Woolsey, 18 How. 331 ; Mech. and Traders Bank vs. Thomas, 18 How. 
 384; McGee vs. Mathis, 4 Wall. 143; Jefferson Bank vs. Skelly, 1 Black, 
 436; Home of the Friendless v^. Rouse, 8 Wall. 438; Wilmington Rail- 
 road vs. Reid, 13 Wall. 264 ; Farrington vs. Tennessee, 95 U. S. 679 J 
 Murray vs. Charleston, 96 U. S. 432. 
 
10 
 
 taxation impairs the contract made by the grant of the privi- 
 lege. Whether or not it was rightly decided that the prohibi- 
 tion of the constitution applied to the exemption in question 
 in the case, it has remained as the basis of subsequent decis- 
 ions and has been repeatedly affirmed by the Supreme Court, 
 though not without most strenuous dissent by a strong minor- 
 ity of the court. But it is by virtue of the decision in the 
 Dartmouth College case that the principle has its application 
 to private corporations. The decision that a charter is a 
 contract made available to them the doctrine that contracts of 
 exemption from taxation are protected by the constitution, 
 notwithstanding that the states are, by such contracts, deprived 
 of the exercise of one of the powers of sovereignty. And 
 the majority of the cases in which the principle established in 
 New Jersey vs. Wilson has been affirmed have been cases 
 where corporate charters providing for exemption from taxa- 
 tion have been drawn in question. In one of these cases it is 
 said that " attempted state taxation is the mode most frequently 
 adopted to affect contracts contrary to the constitutional inhi- 
 bition. It most frequently calls for the exercise of our super- 
 visory power."* 
 
 And this supervisory power the court has steadily exercised 
 to declare void all state legislation impairing contracts of 
 exemption made with corporations in their charters. Not- 
 withstanding the earnest opposition and protests of the 
 minority of the court, at all times, the majority has not failed 
 to protect the contract of exemption when the provisions of 
 the charter clearly expressed it. And one of the minority 
 has not hesitated to say that the court has been " at times 
 quick to discover a contract, that it might be protected, and 
 slow to perceive that what are claimed to be contracts were not 
 so, by reason of the want of authority in those who profess to 
 bind others. This has been especially apparent in regard to 
 contracts made by legislatures of states, and by those municipal 
 
 * Murray vs. Charleston, 96 U. S. 432. 
 
11 
 
 bodies to whom, in a limited measure, some part of the legis- 
 lative function has been confided."* 
 
 It is believed to be the general opinion of the profession 
 that if the question whether a state legislature can release the 
 sovereign power of taxation were res ijitegra, it would be 
 decided in the negative by every judicial tribunal, state and 
 federal. Discriminations in respect to taxation, favorable to 
 corporations, originally granted in conformity with the public 
 sentiment, which, as has been said, encouraged them by 
 favoring legislation, are now seen to be unwise and un- 
 necessary. The time when corporations need such support or 
 encouragement long ago passed away. The public, which 
 once looked with favor upon their privileges, is now alarmed by 
 their encroachments, and the profession and the public alike 
 realize the consequences of the doctrine, that under the 
 decision of the Dartmouth College case the essential sovereign 
 powers of a state relating to revenue, which ought to be 
 most sacredly guarded and conserved, may be bartered away 
 in favor of corporations, whose influence upon legislation has 
 been almost irresistible, and whose privileges have been often 
 secured by the exercise of " the sly and stealthy arts to which 
 state legislatures are exposed, and the greedy appetites of 
 adventurers for monopolies and immunities from the state 
 right of government. "f If the Dartmouth College case had 
 
 * Miller, J., in Washington University vs. Kouse, 8 Wall. 442. 
 
 t Since the above was written, the decision in Given vs. Wright, 117 
 U. S. 648, has been announced, affirming anew the case of New Jersey vs. 
 WiLson, and bringing to notice the singular fact, that the exemption sus- 
 tained in that case, originally granted to the Delaware Indians, which 
 passed to the purchasers of their lands, was not insisted upon by the 
 holders of the lands, and taxes were paid for the whole period of about 
 sixty years since the original decision. Given vs. Wright decides that the 
 long acquiescence of the land-owners under the imposition of taxes, 
 raised a presumption that the exemption which once existed had been 
 surrendered, as it was a franchise or privilege which could be lost by 
 acquiescence. The court expresses the opinion that if the question in 
 New Jersey vs. Wilson were a new one, it might be differently decided. 
 
12 
 
 been nothings more to corporations than the basis of their pro- 
 tection against taxaETohl it i^OuldngCYe^dSserved, even then, as 
 the principle has been actually applied, the protests found in 
 the dissenting opinions of the judges, the criticism of the 
 profession and the complaints of the people. 
 
 II. Here, then, we have the established principles, resting 
 upon the Dartmouth College case, under which corporations 
 have complete protection for their corporate rights and fran- 
 chises, the title and use of corporate property, immunities 
 and exemptions in respect to taxation, safety from any alter- 
 ation or impairment of the rights and the proprietary condi- 
 tion secured by their charters. These are the direct results 
 of that decision. But it is also the foundation upon which 
 private^ business corporations in this country are grounded, 
 for injurious" as well as beneficent purposes. Under it they 
 have found a position from which they are enabled to deliver 
 the heavy fire, and carrry on the noxious warfare, of cor- 
 porate abuses and injustice. It is the shelter under which 
 the vast capital embarked in corporate business may be 
 employed not only in serving the people but in oppressing 
 them. The connection between this state of things and the 
 decision may be traced by the simple inquiry, what would 
 have been the condition of private corporations if the decision 
 had not been made ? The answer is, that they would have 
 remained subject to complete" legislative supervision and con- 
 troI.__ If tHis is desirable it would seem that it can only be 
 brought about now by retracing the path in which the Dart- 
 mouth College case was the first step. Whether it is desirable 
 or not there is a difference of opinion ; whether it is likely to 
 be accomplished is still more doubtful. But that the decision, 
 strong and fixed in our jurisprudence by repeated affirma- 
 tions, venerable and by many regarded with a veneration 
 which stigmatizes as profane any criticism of its principles, 
 stands, until explicitly reversed, in the way of the complete 
 legislative restraint of corporations, is certain. 
 
13 
 
 It is indisputable, therefore, that the beneficial results of 
 the decision to private corporations have been inestimable. It 
 has secured to them, beyond recall, enormous privileges and 
 powers. It is the comer-stone of a structure of corporate 
 wealth and influence, which has been broadening and rising 
 higher with every succeeding year. It has encouraged them 
 in independence of the legislative and popular will, and offers to 
 them a constant temptation to wield their vast resources solely 
 for their own aggrandizement. It forbids legislation, however 
 desirable, which is often essential to the public welfare. All 
 this may be fairly said without partaking of a spirit of unrea- 
 soning hostility to corporations. The criticism of the original 
 decision which asserts that it has been the source of such 
 priceless benefits to corporations is rational and just. No 
 judicial mind could have anticipated, at the time of the de- 
 cision, the extent of subsequent applications of a principle 
 declared in the case of a college to business corporations, any 
 more than the extensive and varied growth of corporations 
 could have been foreseen. But, from the beginning, the 
 application of the rule to the charters of business corporations 
 has been asserted and defended as necessary to stimulate cor- 
 porate enterprise and investments.* However this may have 
 been, it is certain that there is some foundation for professional 
 and public opinion that the principle of the leading case has 
 been pressed too far in the courts ; that not only has reason- 
 able encouragement been afforded to corporate exertion, but 
 that it has emboldened corporations in independence, in inva- 
 sions of public right and in abuses of their lawful powers. 
 
 III. The larger part of professional and lay criticism upon 
 the Dartmouth College case and its results has been directed 
 against the Supreme Court, asserting that the principle has 
 been pressed too far, to the advantage of corporations and the 
 protection of vested interests ; that it has " been made to 
 
 * The Binghamton Bridge, 3 Wall. 74. 
 
14 
 
 sustain grants which neither law nor justice nor sound prin- 
 ciple can sanction;" that "the rule in that case has been 
 perverted to the maintenance of corporate institutions invested 
 with great public functions."* This is apart from the question 
 of the soundness of the original decision, which has been 
 repeatedly challenged and discussed with great research and 
 ability,! ^^^ which is not within the purpose of this paper. 
 In estimating the force and justice of such animadversions, 
 it is necessary to consider the principal case and the later 
 decisions founded upon it, and the course of decision in the 
 Supreme Court alone, regarded as a body or system of legal 
 doctrine. Of this the constituents are : 
 
 (1) The principle that the charter of a private corporation 
 is a contract. The court has firmly and steadily applied this 
 principle in cases of business corporations, and whenever the 
 contract has been found in the charter it has been protected 
 from impairment or violation, and legislation to that effect has 
 been held invalid. Thus business corporations have been 
 secured in the possession and enjoyment of every privilege, 
 exemption and benefit clearly conferred by charters ; in the 
 irrevocable title to property and franchises granted; in the 
 exclusion of competing corporate enterprises and works ; in 
 freedom from increased public burdens; in the right to the 
 use and enjoyment of their property and franchises ; in im- 
 munity from legislative control. J And the court has never 
 
 * See, as representative of such criticism, a very interesting and able 
 address by Hon. John A. Jameson, of Chicago, before the Illinois State 
 Bar Association, January 6, 1882, upon " Interference by Law with the 
 Accumulation and Use of Capital." 
 
 f See especially " The Dartmouth College Case," vol. viii., American 
 Law Eeview, p. 189, January, 1874, and Mr. Shirley's volume, "The 
 Dartmouth College Causes and the Supreme Court of the United States," 
 St. Louis, 1879. 
 
 X Planters' Bank vs. Sharp, 6 How. 301 ; Trustees of Vincennes Univ. 
 vs. Indiana, 14 How. 268 ; The Binghamton Bridge, 3 Wall. 73 ; Davis vs. 
 Gray, 16 Wall. 203; New Jersey vs. Yard, 95 U. S. 104; New Orleans 
 Gas and Water Cases, 115 U. S. 650 ; and the whole series of taxation 
 cases, cited supra. 
 
15 
 
 failed to declare its adherence to the principal case and the 
 improbability of its reversal in the most explicit terms, thus, 
 " The principles they maintain are now axiomatic in American 
 jurisprudence."* Again, "The question decided in that [the 
 Dartmouth College] case has since been considered as finally 
 settled in the jurisprudence of the entire country. Murmurs 
 of doubt and dissatisfaction are occasionally heard, but there 
 has been no re-argument here and none has been asked for."t 
 And again, it is said that the courts " are estopped from ques- 
 tioning the doctrine."! Again, " The doctrines * * an- 
 nounced by this court more than sixty years ago have become 
 so imbedded in the jurisprudence of the United States as to 
 make them to all intents and purposes a part of the constitution 
 itself"§ 
 
 The legal profession Tvill not readily unite in support of a 
 demand, however urgently it may be pressed by popular opin- 
 ion, that the Supreme Court shall reverse the original decision. 
 Every sanction which establishes the maxim, stare decisis, 
 forbids this. It was made upon the greatest deliberation. 
 The authority of the greatest names in our judicial annals 
 supports it. Their successors, through a period of more than 
 sixty-five years, have affirmed and followed it. Whether 
 right or wrong, it is now too late to overthrow it. Vested 
 interests and rights, the investments of millions, great and 
 beneficent works and enterprises depend upon its permanence. 
 The language of Mr. Justice Davis is not too strong when he 
 says that ||"the security of property rests upon it, and every 
 successful enterprise is undertaken in the unshaken belief that 
 it will never be forsaken. A departure from it now would 
 involve dangers to society not to be foreseen, would shock the 
 sense of justice of the country, and weaken if not destroy 
 
 * Von Hoffman vs. Quincy, 4 Wall. 535. 
 f Farrington vs. Tennessee, 95 IT. S. 685. 
 X The Binghamton Bridge, 3 Wall. 73. 
 § Stone vs. Mississippi, 101 U. S. 816. 
 II The Binghamton Bridge, 3 Wall. 73. 
 
16 
 
 that respect which has always been felt for the judicial de- 
 partment of the government." It is often said that every 
 persistent popular demand finally obtains what it desires, even 
 from the judicial tribunals. But there is little ground for the 
 expectation that this case will be reversed under any conceiv- 
 able pressure of public sentiment. It will continue to be the 
 subject of adverse criticism, which will be intensified and 
 strengthened, in the profession and outside of it, unless cor- 
 porate abuses are restrained or come to an end. But the 
 remedies for these, it is believed, will be found in some other 
 way than in the reversal, by the court itself, of this memorable 
 judgment. 
 
 (2) Although the leading case has thus been repeatedly 
 affirmed and declared to be unassailable, we find it qualified 
 and limited by important adjudications which have established 
 principles operating in a high degree to confine and lessen 
 its effect in encouraging the independence and aggressions of 
 corporations. When it became settled that grants to them 
 were not to be extended by construction, and that all charters 
 were to be construed strictly against the grantees,* whatever 
 criticism may be made upon the doctrine or its consistency 
 with the Dartmouth College case, it is certain that a check 
 was thereby laid upon the effect of the principal decision. 
 And the rule established in the Charles River Bridge case has 
 been repeatedly affirmed and stands as firmly as the rule that 
 a charter is a contract. This principle has been steadily 
 applied where corporations have invoked the protection of the 
 constitutional inhibition, under charters which contained no 
 clear contract, and in administering the rule the Supreme 
 Court has denied the claims of many corporations to the ex- 
 clusive privileges, beneficial exemptions and valuable grants 
 
 * Charles Eiver Bridge vs. Warren Bridge, 11 Pet. 420; Richmond 
 R. R. Co. vs. Louisa R. R. Co., 13 How. 71 ; Perrine vs. Canal Co., 9 How. 
 172; Turnpike Co. vs. State, 3 Wall. 210; Ruggles vs. Illinois, 108 U. S. 
 526. 
 
17 
 
 asserted under charters. Under this principle corporations 
 have been apprised that the securing of a loosely-drawn charter 
 was not enough to confer upon them all the rights and privi- 
 leges expected, that charters convey nothing by implication,* 
 and that they are always subject to the scrutiny of the judicial 
 power, under a rule of strict construction. The effect of such 
 adjudications upon charter legislation has undoubtedly been 
 beneficial. It has made legislatures aware that if it was 
 intended to confer an irrevocable franchise, privilege or ex- 
 emption, that purpose must be clearly expressed. Many a 
 legislature, brought face to face with an explicit charter- 
 contract, would hesitate to enact it, while a skillfully drawn 
 charter, intended by its promoters to contain but not express 
 a contract, might pass unchallenged. Thus, this important 
 rule of the construction of charters, in its actual application, 
 has been favorable to the public as against corporations. 
 
 (3) The Supreme Court has asserted and upheld the legis- 
 lative authority over corporations in all cases where their 
 charters, or the general laws, or the provisions of state 
 
 * Especially in the taxation cases the court has held that the contract 
 must be clearly expressed in the charter. Providence Bank vs. Billings, 4 
 Pet. 514; Salt Co. vs. East Saginaw, 13 Wall. 373; The Delaware R. R. 
 Tax Cases, 18 Wall. 225 ; Tucker vs. Ferguson, 22 Wall. 527 ; New Jersey 
 vs. Yard, 95 U. S. 104; Hoge vs. R. R. Co., 99 U. S. 348 ; Railway Co. vs. 
 Philadelphia, 101 U. S. 539; Memphis Gas Light Co. vs. Shelby Tax 
 District, 109 U, S. 398 ; Southwest. R. R. Co. vs. Wright, 116 U. S. 2311; 
 Vicksburg, etc., R. R. Co. vs. Dennis, 116 U. S. 668 ; Tennessee s. Whit- 
 worth, 117 U. S. 139-148. And the privilege of exemption from taxation 
 is construed to be the special privilege of the corporation to which it is 
 granted, and does not pass to its successor unless the law granting the ex- 
 emption expresses a clear intent to that effect. Morgan vs. Louisiana, 93 
 U. S. 217 ; Wilson vs. Gaines, 103 U. S. 417 ; Louisville & Nashville R. R. 
 Co. vs. Palmes, 109 U. S. 244 ; Memphis R. R. Co. vs. Commissioners, 112 
 U. S. 609. And exemptions frofn taxation which are mere bounties, or 
 privileges granted without consideration, may be withdrawn or repealed 
 by the legislature. Rector, etc., rs Philadelphia, 24 How. 301 ; Tucker vs. 
 Ferguson, 22 Wall. 527; West Wisconsin vs. Board of Supervisors, 93 
 U. S. 595. 
 
18 
 
 constitutions reserved to the legislature the power of amendment 
 or repeal. This means of retaining the control of corporate 
 charters, and of avoiding " the unalterable and irrepealable 
 character of the contract," has been in force since the decision 
 of the principal case, and a suggestion by Judge Story to that 
 effect in his opinion was immediately followed, and many of 
 the states, availing themselves of this mode of action, have 
 maintained a supervision of corporations which has been 
 effective /in a high degree. The court has never failed to give 
 the state and the public the benefit of this principle, whenever 
 the charter, or general law, or the state constitution has 
 reserved the power. In a multitude of cases, corporations 
 have been denied the privileges asserted under charters claimed 
 to be irrepealable, and have been subjected to the efficient 
 action of the legislative power.* 
 
 As the power to amend and repeal charters would be ample 
 in the state legislatures, in the absence of the provision of the 
 federal constitution forbidding the impairment of the obligation 
 of contracts, such a reservation leaves a state where any 
 sovereignty would be, if unrestrained by express constitutional 
 limitations. Whenever the power is reserved, it may be 
 exercised to amend the charter to almost any extent to carry 
 into effect the original purposes of the corporate organization 
 and secure due administration of its affairs, or to repeal the 
 charter altogether, so as to terminate absolutely the existence 
 of the corporation by the abrogation of " the organic law on 
 which the corporate existence depends, "f ^^t the exercise of 
 the power of amendment or repeal cannot deprive corporations 
 of their rights or property acquired by the use of their 
 
 ^Pennsylvania College Cases, 13 Wall. 213; Miller fs. State, 15 Wall. 
 478; Tomlinson vs, Jessup, 15 Wall. 454; Shields vs. Ohio, 95 U. S. 319; 
 Kail way Co. vs. Maine, 96 U. S. 499; Sinking Fund Cases, 99 U. S. 700 . 
 Railway Co. vs. Georgia, 98 U. S. 359; Eailway vs. Philadelphia, 101 
 U. S. 539 ; Greenwood vs. Freight Co., 105 U. S. 13 ; Spring Valley Water 
 Works vs. Schottler, 110 U. S. 348. 
 
 t Miller vs. State, 15 Wall. 478 ; Shields vs. Ohio, 95 U. S. 319 ; Green- 
 wood vs. Freight Co., 105 U. S. 19. 
 
19 
 
 franchises.* Thus the rights of shareholders and creditors are 
 protected. So that the reserved power of amendment or repeal 
 is not unlimited, or destructive, or violative of vested rights. 
 
 To those whose indulgence in complaint of the encroach- 
 ments of corporations is somewhat sweeping, it may be fairly sug- 
 gested that the actual and practical operation of this reserved 
 legislative power is a restraint upon corporations much more 
 effectual than they are willing to acknowledge. The inquiry 
 by statistics is difficult, but we venture the statement that the 
 larger number of corporations existing in this country come 
 under legislative control by \drtue of provisions in their 
 charters, or in the general laws or constitutions of the 
 states. In the majority of the states, constitutional provisions 
 forbid the granting of charters, except with a reservation of 
 the power of amendment or repeal. The day of special char- 
 ters is past. General laws, for the most part, are the basis 
 of corporate organization. The present tendency of legisla- 
 tion is not, to say the least, favorable to corporations. And 
 in estmiating the necessity for more severe legislative action 
 concerning them, the extent of the^present control of them, 
 under the reserved power, should not be under-estimated. 
 And certainly, any criticism upon the effect of the Dart- 
 mouth College case, as encouraging corporate independence, 
 should not leave out of view the consistent maintenance of this 
 power by the Supreme Court. 
 
 (4) It is well settled that the legislature may exercise the 
 power of eminent domain, to authorize the taking of the 
 property of corporations, including their franchises, upon due 
 compensation, t This principle places the most valuable and 
 exclusive rights and franchises of corporations under legislative 
 control, whenever the public interest appears to the legislature 
 
 * Miller vs. State, 15 Wall. 478 ; Shields vs. Ohio, 95 U. S. 319; Green- 
 wood vs. Freight Co., 105 U. S. 19. 
 
 t West River Bridge Co. vs. Dix, 6 How. 507 ; Eichmond, etc., E. E. 
 Co. vs. Louisa E. E. Co., 13 How. 71 ; Greenwood vs. Freight Co., 105 U. 
 S. 22; New Orleans Gas Light Co. vs. Louisiana, etc., Co., 115 U. S. 650. 
 
20 
 
 to require that new corporations should be organized, and the 
 constantly developing iJecessities of growing and progressive 
 communities aided by new corporate undertakings. The prac- 
 tical operation of this principle is to keep the limits of the 
 field of corporate exertion under the constant supervision 
 of legislation, and to leave to the determination of the 
 representatives of the people the question whether that field 
 should be enlarged or restricted at any particular period. 
 This end is subserved, and corporations which have acquired 
 vested rights and interests receive just compensation for what- 
 ever is taken from them. 
 
 (5) The most important adjudications which form a part of 
 the System of doctrine founded on the Dartmouth College case, 
 are the comparatively recent decisions which sustained the 
 exercise of the supervisory and controlling power of the legis- 
 lature in the "Warehouse " and *' Granger " cases, so denomi- 
 nated. These have provoked wide discussion and earnest 
 criticism. They have been assailed by many in the profession ; 
 they were accompanied by strong dissent on the part of the 
 minority of the court; they have been hailed with approval 
 and congratulation in large sections of the country where 
 public sentiment was most vigorous in antagonism to corpora- 
 tions ; they have been regarded by many, in and out of the 
 profession, as inconsistent in reasoning and principle with 
 the leading case, as indicating a tendency in the court to re- 
 view and reverse it, and as presaging its final abandonment 
 and overthrow. 
 
 These cases were as follows : 
 
 In Munn vs. Illinois,* the question was as to the power of 
 the legislature of Illinois to fix by law the maximum of charges 
 for the storage of grain in warehouses, at Chicago and other 
 places in the state having not less than one hundred thousand 
 inhabitants, and to require persons doing business as private 
 
 ^94 U.S. 113. 
 
21 
 
 warehousemen to take out a license for such business, and to 
 declare the business to be that of public warehousemen. The 
 constitutionality of such legislation was sustained, and it was 
 held that " where private property is devoted to a public use 
 it is subject to public regulation ;" that " property does become 
 clothed with a public interest when used in a manner to make 
 it of public consequence and affect the community at large. 
 When, therefore, one devotes his property to a use in which 
 the public has an interest, he, in effect, grants to the public an 
 interest in that use and must submit to be controlled by the 
 public for the common good, to the extent of the interest he 
 has thus created. He may withdraw his grant by discon- 
 tinuing the use, but so long as he maintains the use he must 
 submit to the control." 
 
 The " Granger Cases "* involved a consideration of the 
 charters of different railroad companies and the extent of the 
 power of the legislature in the regulation of their charges, as well 
 in the absence of any reservation of a right to alter or repeal 
 them, as where such reservation was embodied in the charters 
 or in the constitutions or laws under which they were granted. 
 
 These cases decided that railroads are subject to the super- 
 vision and control of the legislature, like all carriers at com- 
 mon law, being engaged in a public employment affecting the 
 public interest, and, therefore, under the decision of Munn vs. 
 Illinois, subject to legislation as to their rates of fare and 
 freight, unless protected by their charters ; that in the absence 
 of charter-contracts the charges by railroad companies for 
 services within the state may be limited by the legislature 
 and a maximum of charges prescribed ; that where the state 
 constitution reserves a right of amendment or repeal, the 
 legislature may prescribe a maximum, although the charter 
 
 ♦Chicago, Burlington & Quincy R. R. Co. vs. Iowa, 94 U. S. 155; Peik 
 vs. Chicago & Northwestern Railway Co., Ibid. 164 ; Chicago, Milwaukee, 
 & St. Paul R. R. Co. vs. Ackley, Ibul. 179 ; Winona & St. Peter R. R. 
 Co. vs. Blake, Ibkl. 180 ; Stone vs. Wisconsin, Ibid. 181 ; Ruggles vs. 
 Illinois. 108 U. S. 526. 
 
> 
 
 22 
 
 authorizes such charges as are reasonable ; that more than the 
 maximum fixed by the legislature cannot be recovered by the 
 company by showing that the amount charged was no more 
 than reasonable for the services. 
 
 Taken together, these decisions assert the complete power 
 of legislative regulation, whenever the business of the corpora- 
 tion is of such a nature, in the judgment of the court, as to 
 affect the public interest. 
 
 The "Railroad Commission Cases,"* decided at the last 
 term of the court, affirm the " Granger Cases " and go 
 beyond them, sustaining the validity of a statute regulating 
 rates of transportation and creating a state board of commis- 
 sioners to supervise and enforce the same. The court holds 
 that the creation of such a board does not violate the charter 
 right of the corporation to manage its affairs through its own 
 directors; that statutes regulating rates of charges do not 
 deprive corporations of their property without due process of 
 law ; but it is declared that the power of regulation is not a 
 power to destroy, that limitation is not equivalent to confisca- 
 tion, and that under pretence of regulating charges, the state 
 could not require a corporation to carry without reward nor 
 do that which amounts in law to taking private property for 
 public use without just compensation or due process of law. 
 As no tariff of charges had been fixed by the commission in 
 question, the court declines to say what action of the commis- 
 sion would have this effect. The power of regulation is 
 declared to be one which cannot be bargained away without 
 express grant. Justices Harlan and Field, dissenting, regard 
 the statute in question as one impairing the charter- contract 
 with the company and their right under the charter to fix 
 their own charges and manage their own affairs through their 
 own directors, officers and agents, though they concede that 
 statutes may be valid establishing railroad commissions for 
 many purposes. 
 
 / 
 
 *116U. S. 307. 
 
23, 
 
 These decisions assert principles which have not received, 
 and, as we believe, cannot receive, the assent of the most 
 weighty professional opinion. The reasoning of the dissent- 
 ing opinions seems to us to be unanswerable. These express, 
 with cogent logic, abundant authority and masterly strength, 
 the consequences of a doctrine that the legislative power can 
 be unchecked, in its interference with business essentially 
 private, or its prescription of the compensation which private 
 and corporate owners shall receive for the use of their pro- 
 perty. Without such decisions, all the rights of regulation of 
 the use of property, and to prevent its abuse to the injury of 
 the public, and for the protection of the public interest, can 
 be effectually preserved, in all cases where special privileges 
 are granted, under settled principles as to the exercise of the 
 police power. To state the reasons of our conviction would 
 be only to repeat the larger portions of the dissenting opin- 
 ions. The decisions seem to us to be "subversive of the 
 rights of private property, heretofore believed to be protected 
 by constitutional guaranties against legislative interference ;" 
 they hold that " all property and all business of the state are 
 held at the mercy of the legislature ;" they deprive private 
 and corporate owners of their property absolutely, although 
 under the guise of mere regulations as to its use and employ- 
 ment and non-interference with its title and possession. It 
 seems indisputable that " If the legislature of a state under 
 pretence of providing for the public good, or for any other 
 reason, can determine, against the consent of the owner, the 
 uses to which private property shall be devoted, or the prices 
 which the owner shall receive for its uses, it can deprive him 
 of the property as completely as by a special a<;t for its con- 
 fiscation or destruction." " There is, indeed, no protection 
 of any value, under the constitutional provision, which does 
 not extend to the use and income of the property, as well as 
 to its title and possession." 
 
 It is difficult to resist the conviction that the court, in 
 deciding these cases, was not altogether insensible to the 
 
24 
 
 pressure of that public sentiment which prevailed at the time 
 — the " Granger " sentiment of the Great West. 
 
 That the principles of these decisions are inconsistent with 
 the reasoning of the Dartmouth College case, is maintained 
 in the dissenting opinions and insisted upon by professional 
 criticism. The question " to what purpose can the constitu- 
 tional prohibition upon the states, against impairing the obli- 
 gation of contracts, be invoked, if the state can, in the face of 
 a charter authorizing a company to charge reasonable rates, 
 prescribe what rates shall be deemed reasonable for services 
 rendered," can receive, it seems to us, but one answer, viz., 
 the constitutional inhibition is of no effect. It is true that 
 the court expressly declares its adherence to the leading 
 case ; that it holds that the railroad charters in question con- 
 tained no contracts ; that it considers that the College case 
 and the " Granger Cases," can stand together; and certainly, 
 so far as establishing the law is concerned, the court is the 
 final judge of its own consistency. But it seems to us that 
 the principle of these cases, that the use of property affecting 
 the public generally clothes it with a public interest, conflicts 
 with the decision that the college was a purely private cor- 
 poration ; that the decisions tend to justify unchecked legisla- 
 tive control of all private corporations ; that the reasoning of 
 the court is inconsistent with the protection of the contracts 
 even where the charters expressly contain them, and tends to 
 allow the impairment of the contracts of corporations with 
 third persons, especially where securities have been issued 
 •upon corporate property. 
 
 The legislative regulation of corporations, thus maintained, 
 is based upon the nature of the business carried on. The 
 court establishes the general principle that whenever such 
 business is of public consequence, and affects the community 
 generally, the legislative power is complete to regulate. If 
 individuals or corporations devote their property to uses in 
 which the public has an interest, there is, in effect, a presumed 
 
25 
 
 dedication of the property to public use, and an implied 
 submission, on the part of the owners, to legislative control or 
 the public good. The limits of this power of regulation, there- 
 fore, depend upon what the court may determine, in every 
 case, as to the nature of the business. These limits are unde- 
 fined, and although the court plants itself, professedly, upon 
 the principle of dedication to public use, and an implied con- 
 sent of the owners of the property, many regard the virtual 
 ground of decision to be the police power, which is generally 
 exercised in invitum. But the declared opinions of the court 
 must be accepted as to the ground of their decision. The 
 power of regulation is, therefore, left to the combined deter- 
 mination of the legislative and judicial authority as to the 
 nature of the business. The most recent decisions, presently 
 to be noticed, show that the court asserts its power to deter- 
 mine, in every case, what is business of a public nature, and 
 what is ordinary business, and when and to what extent the 
 police power may be exercised in respect to it. But may it 
 not be fairly asked, is not this power of regulation equivalent, 
 as thus asserted, to the power of the legislature over public 
 corporations, and are not corporations virtually held to be 
 public whenever it can be found that the business or purposes 
 of the corporate organization affect the community generally ? 
 The importance of the results of these decisions, alike to 
 corporations and to the public, has been demonstrated in the 
 period which has elapsed since they were announced. Upon 
 the former they have had marked effect in discouraging cor- 
 porate investments, and have rendered corporate rights and 
 franchises less valuable. Whether the public has derived fi'om 
 the decisions the benefit claimed for them is at least open to 
 question. That part of the people which is most hostile to 
 corporations finds, in these decisions, encouragement for the 
 expectation that the court will, at no distant day, reverse the 
 principal case, an event by which it is supposed a millenium of 
 relief for a corporation-oppressed people will at last arrive. 
 
26 
 
 (6) In cases subsequent to the " Granger Cases," where the 
 constitutional protection of contracts was invoked in behalf of 
 corporations carrying on business injurious to the public health 
 or morals, the court has declared the principles governing the 
 exercise of the police power, and decided that charter-contracts 
 do not preclude the legislature from enacting such laws as are 
 necessary for the protection of the public ; that the legislature 
 "cannot bargain away the public health or public morals," 
 and that authority granted by statute to corporations or in- 
 dividuals to engage in particular private business detrimental 
 to the public, does not constitute a contract preventing the 
 withdrawal of such authority.* 
 
 (7) So, in a later case, the principle of the leading case has 
 been urged to protect the corporations from legislation concern- 
 ing their business intended for the security of persons dealing 
 with them, such as statutes regulating the business of life 
 insurance companies. Such legislation was held not to be 
 within the constitutional inhibition. It was decided that all 
 grants of corporate privileges and franchises are subject to the 
 condition that they shall not be abused, nor employed to de- 
 feat the ends for which they were conferred, and to an equally 
 implied condition that the legislature may prescribe such 
 reasonable regulations as will secure the ends for which the 
 corporation is organized, provided such regulations do not 
 interfere with or obstruct the enjoyment of the corporate 
 privileges. This principle is expressly declared to be essential 
 to the protection of the public against perils arising from the 
 ignorance, misconduct or fraud of those who manage corpora- 
 tions, f 
 
 (8) The decisions in the New Orleans Gas and Water 
 
 * Beer Co. vs. Massachusetts, 97 U. S. 25 ; Fertilizing Co. vs. Hyde Park, 
 Ibid. 660; Boyd vs. Alabama, 94 U, S. 645; Stone vs. Mississippi, 101 
 U. S. 814 ; Butchers' Union Co. vs. Crescent City Co., Ill U. S. 746. 
 
 t Chicago Life Ins. Co. vs. Needles, 113 U. S. 574 ; and see The Sinking 
 Fund Cases, ubi supra. 
 
27 
 
 cases,* at the last term of the court, maintain anew the validity 
 of exclusive charters as contracts, and declare the consistency 
 of all previous adjudications with the complete exercise of the 
 police power by the state, to protect the public health, the 
 public morals and the public safety. These cases involved the 
 validity of charters granting to private corporations exclusive 
 privileges to supply the city of New Orleans with gas and 
 water by means of pipes, mains and other conduits laid in the 
 public streets of the city. The court held that such charters 
 were contracts, which could not be impaired by subsequent 
 constitutional provisions by the state ; that the business to be 
 carried on was of a public character; that the power of a 
 subsequent legislature to recall such grants could be limited by 
 the charter-contracts, and exclusive privileges granted in such 
 cases stand upon the same principle as exclusive grants to con- 
 struct and maintain highways, bridges and ferries, and exemp- 
 tion from taxation by charters ; that the former decisions of 
 the court (Beer Co. vs. Massachusetts, Fertilizing Co. V8. 
 Hyde Park and Stone vs. Mississippi) sustaining the exercise 
 \^ of the police power, rest on the principle that one legislature 
 cannot limit the power of its successors in relation to private 
 business affecting the public health or morals ; that authority 
 given by the legislature to corporations or individuals to en- 
 gage in such particular private business does not constitute a 
 contract preventing withdrawal of such authority or the grant- 
 ing of it to others ; but that the business of supplying a 
 city with gas or water is not ordinary business in which every- 
 j^^'one may engage, but is of a public^ nature; and that even in 
 such case a grant of exclusive privileges does^ not withdraw 
 the business from the control of the police power, when the 
 public health, morals or safety require its exercise. 
 
 These decisions affirm again the adherence of the court to 
 the Dartmouth College case, but assert for the court the 
 power to determine in every case whether the nature of the 
 
 *115 U.S. 650-674. 
 
28 
 
 business is private or public, and, consequently, when the 
 police power may be applied. These cases, by those who hold 
 that the decisions of the court cannot be reconciled, will be 
 regarded as strengthening their view of the court's inconsistency, 
 and as they consider the " Granger Cases " to be a radical 
 departure from the principal case,' they will only find in these 
 recent decisions a new and variant step, not in the path of con- 
 sistent legal principles. They will not hesitate, therefore, to 
 insist that the court, in every future case, as in its later adju- 
 dications, will decide as their views of public policy at the time 
 may require. 
 
 But if we can conceive the court, for a moment, as defending 
 their own course of decision, they would say, "The settled 
 law upholds the true purpose of the constitutional inhibition, 
 rightly protects the just rights of corporations, secures due 
 administration of their affairs, and consistently maintains the 
 integrity of the sovereign powers of the state, the police 
 power, the power of eminent domain, the reserved power of 
 amendment and repeal, and thus establishes sufficient and 
 effectual restraints upon corporations." 
 
 IV. This survey and examination of the principles estab- 
 lished as law by the leading case and succeeding decisions 
 resting upon it, considered together, has been undertaken with 
 a purpose to exhibit a connected view of the system, if it may 
 properly be so regarded. By such a view we may better esti- 
 mate the force and conclusiveness of the criticism which has 
 assailed the original decision and its consequences, and which 
 will continue, probably, to arraign the court before the bar of 
 public opinion. Public opinion, sooner or later, insensibly 
 moulds the law.* Whatever we may desire as lawyers, 
 
 *** Public opinion may and does review the constitutional doctrines an- 
 nounced and acted upon by the Supreme Court of the United States, and 
 sometimes this review has been followed by very practical consequences," 
 Geo. Ticknor Curtis, in his discussion of " The Doctrine of Presumed 
 Dedication of Private Property to Public Use" (John Wiley & Sons, 
 N. Y., 1881), citing " The Dred Scott Case." 
 
29 
 
 however much we may wish that the judicial tribunals shall be 
 above the reach of popular opinion, nevertheless they are in- 
 fluenced by it. The law is the outgrowth of the necessities of 
 the community. It is idle for the profession to ignore the 
 serious charge that by reason of the decision in the Dartmouth 
 College case, corporations possess almost sovereign powers, 
 and that the doctrine of an inviolable charter-contTact has 
 suspended, in their favor, the exercise of the sovereign powers 
 of the state. This charge must be met according to its 
 gravity ; it must be considered whether the need of restraint 
 upon corporations is increasing or diminishing, and where the 
 remedies for corporate abuses and aggression are to be found, 
 if required. But this inquiry will not be prosecuted, either 
 in the legal profession or in the judicial tribunals, in any 
 spirit of undiscriminating enmity to corporations. The incal- 
 culable benefits they have conferred upon the country, the 
 great work they have performed in its progress and devel- 
 opment, are manifest. The legal profession can do much to 
 influence and guide public opinion ; to show that the demand 
 for the reversal of the Dartmouth College case is impractica- 
 ble ; to maintain the integrity and permanence of principles 
 which are, to say the least, settled law ; to inculcate that 
 respect for the highest judicial tribunal of the country to 
 which it is entitled by its position, its history and the purity, 
 abilities and learning of the judges. This may be done, and 
 ample room will be left for free and enlightened criticism of 
 its decisions. It is a reasonable expectation that the law will 
 be finally settled in such a way as to reconcile complete pro- 
 tection of corporate rights and vested interests with the unim- 
 paired exercise of the sovereign powers of the state. The 
 majority of the court regard that as even now accomplished, 
 but as to this there is a wide difference of opinion. One of 
 the judges who has most strenuously resisted the doctrine that 
 the taxing power can be restricted by charter-contract, pre- 
 dicts that it must be finally abandoned.* Whether this can 
 * Miller, J. in Washington University vs. Rouse, 8 Wall. 444. 
 
30 
 
 be done without overthrowing the whole system of decisions is 
 doubtful; because, as we have seen, the taxation cases are 
 those wherein the principle that a charter is a contract has 
 been most frequently and explicitly affirmed. If the prin- 
 cipal case is not reversed, still less is it probable that the 
 remedy suggested by the most earnest of its opponents, an 
 amendment of the Federal Constitution, will be attained. It 
 would be resisted by all the power of corporations, and such a 
 measure could not be enacted unless by practical unanimity 
 of all public interests and general concurrence of professional 
 and public sentiment. If the aims, the ambitions, the inde- 
 pendence of corporations should continue to be aggressive, and 
 become dangerous to the public welfare, remedies must and 
 will be found. What these shall be is not within the scope 
 of the present discussion. 
 
 As lawyers and as citizens we may indulge the hope that 
 these questions will be determined and these contentions com- 
 posed, with complete conservation of the judicial and legisla- 
 tive powers of government, and with just regard for the 
 interests of corporations, the protection of the public, and the 
 welfare and progress of the nation. 
 
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