On Petition for a Rehearing.
Olds, J. —Counsel for appellants earnestly insist that there áhould be a rehearing in this cause. Counsel state in their brief that “ The court decides ‘it (the act of 1891) both impairs the contract or charter of 1851, * * * and it seeks to take its property from it (appellee) without due process of law/ If either or both these propositions is not good law, then we must believe the court will grant our petition,” and then follow with an able discussion of these propositions, seeking to show that they are not good law.
As stated in the original opinion, the sole question presented in this case is whether or not the appellee, the Indiana State Board of Agriculture, is a private corporation. If it is a private corporation, then the act of 1891 both impairs the contract between the State and the appellee, as made by the charter of 1851, and it seeks to take its property without due process of law.
If the act of 1851 created and made the appellee a private corporation, then the property it holds as such corporation is as sacred as that of any individual, and any attempt by legislation to take such property from the corporation without compensation would be to impair the charter and take the property without due process of law. To sustain the decision it is only necessary to establish by sound reasoning and by authority that the appellee is a private corporation. That it is such a corporation we think is fully supported by the authorities cited in the original opinion.
*454Counsel assert, in effect, that, as the members of the beard have no financial interest in the property of the corporation, they hold it in trust for the people of the State, that it is the same as the State capitol, or any other property of the State, belonging to the whole people of the State, hence is State property, and subject to legislative control, as is any other property of the State. And it is further asserted that there can not be any corporation, either public or private, without natural members; that if all the members of a private corporation die, or all of the citizens of a government die or emigrate, the corporation is extinct, and that the members of this corporation are to be elected by certain local agricultural societies, and it is possible, and, indeed, probable that these local societies may go out of existence or refuse to elect, and then the query is made as to' what will become of the property.
This latter proposition is, we think, foreign to the case. There is no more probability of these local societies going out of existence or refusing to elect, than that those whose duty it is to elect members of like boards, such as trustees of colleges or hospitals, will refuse to elect. The question propounded is not presented in this case, though we think the law would not allow its purpose to fail by reason of the failure or refusal of those whose duty it is to select the members to do so. “A court of equity never wants a trustee.” The first proposition is answered by the authorities cited holding that certain colleges and universities are private corporations. The appellees hold the property of the corporation the same as do the trustees of private corporations, for educational purposes. The property of the Vincennes University and State University belongs to the people of the State to the same extent and in the same manner as does the property of the appellee corporation.
It is suggested that in ease of a college, university or hospital, they are created for the benefit of only the few— the university for those seeking an education, and the hos*455pital for those who are sick and afflicted and are permitted to enter for care and treatment — but with this theory of counsel we can not agree. The whole people of the State áre interested in education, as they are in that the sick and afflicted shall be cared for. The whole people of the State are alike interested in the furtherance of education, whether it be of a literary character or in the development of agriculture; both pertain to the educational interests of the State.
The State, by its General Assembly, under the Constitution of 1816, might create a private corporation in furtherance of the education of her people in literature or agriculture, or it could establish an institution or create a board of trustees for that purpose, and operate the same as a State institution.
It is suggested by counsel that if this be a private corporation the State has,' by the act of 1851, forever placed its agricultural and industrial interests, in so far as relates to exhibitions, beyond its control. We do not understand that it has done so. No exclusive right to hold exhibitions is attempted to be granted by the charter. It is suggested that the loaning of money by the State to the appellee, as stated in the original opinion, is not an argument in favor of the appellee being a private corporation, that even a cestui que trust may loan money, when necessary, to his trustee, and that an heir may loan money to an executor. Granting that they can, neither case is parallel with the case at bar. The heir and the executor and the cestui que trust and the trustees may be separate individual persons, capable of contracting with each other; but this case presents a case of the State loaning money to itself if the appellee is not a private corporation, and the taking of a mortgage on its own property. But, as it occurs to us, it is a case of legislative construction of the charter of 1851, treating it as having á corporate existence independent of the State, the loaning to it money .and taking a mortgage upon its property. If it is not a *456private corporation the mortgage would be of no value; the State would be taking a mortgage upon its own property. Certainly the Legislature would not-do so idle a thing. In our opinion the Legislature, by the loaning of the money and the taking of the mortgage, placed a construction on the charter, construing it as creating a private corporation, and dealing with it as such, loaning it money and taking a mortgage upon its property.
Filed October 17, 1891.We are constrained to adhere to the decision in this case.
The petition for rehearing is overruled.