City of Louisville v. President of University of Louisville

Judge Rise’s

dissent to the foregoing opinion—

On the 27th of June, 1851, the city of Louisville instituted suit in the Jefferson Circuit Court, by petition, against the president and trustees of the University of Louisville, for the purpose of recovering the possession of the university square in the city, the buildings erected thereupon, the property, funds and archives of the university, in order that the government, control, and management thereof should be placed in the hands of the “ Board of Trustees of the University and Public Schools of Louisville,” as elected and appointed in pursuance of the provisions of the tenth article of the present city charter, approved March 24, 1851. This proceeding was instituted in conformity with, and by authority of the .tenth section of the thirteenth article of the said act chartering the city of Louisville,^which provides, in substance, that by such proceeding the question of the constitutional validity of those provisions of the city charter, under and by virtue *695of which the city of Louisville, as plaintiff, demands for the new board of trustees the possession and government of the university, including the medical department thereof, may be brought before and determined by the judge of the Jefferson Circuit Court, and by which either the city or the university may, if not satisfied with the decision of the circuit judge, prosecute an appeal or writ of error to this court. •

Upon the pleadings, exhibits, proofs, and facts agreed, the circuit judge determined that so much of the act providing a new charter for the city of Louisville, approved March 24, 1851, as provides for the appointment of the “Board of Trustees of the UnG versity and Public Schools of Louisville,” and directs that the' possession and control of the university shall be delivered to them, and which virtually supersedes and removes from office the trustees, (defendants,) who were appointed according to the provisions of the charter of the University, was unconstitutional and void, and thereupon the petition of the city was dismissed, and the title to the property in controversy was “vested and quieted in the defendants.”

The city, not content with the decision of the circuit judge, has, by writ of error, brought the case before this court; upon which the responsible duty is imposed, therefore, of determining finally the grave and important constitutional question presented by this record.

The important and interesting questions involved arise upon the following state of case :

By an act of the Legislature, approved February 2, 1833, Wm. C. Galt and eight others, by name, citizens of Louisville, were incorporated for the purpose of promoting medical science in the city of Louisville, with the corporate name and style of “The Medical Institute of the city of Louisville.” The charter confers upon the persons incorporated, and their successors in office, the ordinary privileges and duties usually appertaining to corporate institutions of like character. The nine persons named in the *696charter are created and appointed therein as its officers, under the names of President, Moderator and Managers; and they have the right to admit additional members, and to provide for the election .of their successors in office by their own by-laws. It does not appear, at the time this institution was chartered, or for several years afterwards, that it had received from private individuals, or from the city of Louisville, or from the State, any endowment whatever, or that there was any special founder who applied for the act of incorporation upon an undertaking then, or upon any promise in future, to endow the corporation, or to confer upon it any estate, real or personal, funds or revenues for its maintenance and support, as a civil corporation or as a charitable institution. It had, however, the right “to acquire, hold and enjoy all such real and personal property as might be necessary for the accommodation .of the institute, and the advancement of medical science, and to dispose of it. at pleasure,” provided the income arising from such estate should not exceed $50,000. per annum. This institution continued in existence and operation, without endowment or property of any kind, so far as it appears, and consequently without any income or revenue, except such as was received from the students .and paid by them for medical instruction, and for matriculation fees, &c. The charter provides that the original corporators, and such other persons as they might admit as members of the institute,, should appoint the successors of the original officers named and selected in the said charter. It further provides, that the medical department of the Louisville marine hospital, and of the poor-house and city hospital, may be confided to the institute, the former by the trustees thereof, and the latter by the city authorities. (See Sess. Acts, 1832, 300.)

By an act of the Legislature, approved January 17,1840, an institution of learning called the Louisville College, which had been previously established by the city of Louisville within its limits, and en*697dowed and regulated by the city, by authority of the city charter, was, at the instance and by the request of Louisville, incorporated and chartered, to place this college “upon a more permanent foundation: ” This charter provides: 1. That the trustees of the college should be appointed and removed at the pleasure of the mayor and council of the city of Louisville.

2. That the trustees shall conduct the affairs of the college, and manage and control the corporation under the corporate name and style of the Louisville College; and the usual rights, qualities, and powers of a corporation are conferred.

3. That the city of Louisville may take and hold, and the college may take and hold for the benefit of the institution, real and personal estate, the income from which not to exceed $10,000, to be applied for the establishment of libraries, cabinets of curiosities, and scholarships and professorships in the college.

4. The city of Louisville, as the founder of this institution, is vested by the charter, with full visitorial power over its affairs, and with the right to prescribe all the rules and regulations for its government and for the government of its fiscal and prudential concerns.

5. The power is reserved to the Legislature to amend, modify, or to repeal the charter; in the event of repeal, the property to revert to the donors or their heirs.

Such are the provisions of the charter of the Louisville College, found in Session Acts, 1839-40, on page 51-2.

This college, it appears, was manifestly a public institution, created and established by the city of Louisville as a public municipal corporation, for a public politicalpui’pose — the diffusion of education; it was endowed by, and was completely under the government of the city, and when incorporated, it was with the same endowment, with the same public object, and remained still under the same control and *698government of the city, and was, to all intents and purposes a public or civil corporation, and as such, its charter, though such power had not been expressly reserved, was subject, with the consent of the city of Louisville, tobe altered, amended, or repealed by the legislative power of the State, which extends to and over the subject of public instruction within the limits of this commonwealth.

On the 80th of March, 1837, more than four years after the Medical Institute of the city of Louisville was chartered, and after general and full notice thereof in the city newspapers, a large meeting of the citizens of Louisville was held at the Radical M. E. Church in the city, which organized in the usual form, by the appointment of Levi Tyler as chairman, and W. Tannehill as secretary, by which meeting the following resolutions were adopted unanimously :

“1. That there ought to be a college in the citw of ■Louisville, with both medical and law departments attached.

“2. That the public square in the city, bounded by Eighth, Ninth, Chestnut and Magazine streets, should be set apart for the location of such college thereon.

“3. That said square was large enough for the erection of buildings thereon for a college proper, and for both the law and medical departments thereof.

“4. That the mayor and council of the city would act in conformity with the public sentiment of the citizens, by donating said square for the erection of said buildings.

“5. That the establishment of a college with medical and law departments attached would be alike beneficial and advantageous to all the citizens of Louisville, in proportion to their property and business, and ought to be a general charge on all.

“6. That-it was highly expedient and proper that the medical department of such college should be immediately established, with a sufficient endowment, on the part of the city of Louisville, to afford means of *699medical instruction equal to any other college in the United States, and that therefore the mayor and council of the city are requested to designate and donate said square for said college, and to have erected upon it the necessary and proper buildings for the medical department of said college, and also to purchase a suitable library, apparatus, &c., for the use of the said department, at the expense of the city of Louisville, and that the said medical department be placed under the control and management of the trustees of the Medical Institute of Louisville.

“7. That these resolutions be published in the city papers, and that they be laid before the mayor and council of the city, for their action thereon.”

These public resolutions, signed by the chairman and secretary of the meeting, were accordingly presented to and laid before the next ensuing regular meeting of the mayor and board of councilmen of the city of Louisville, held on the third of April, 1837, by Levi Tyler, the chairman of said public meeting, and thereupon, upon the motion of James Guthrie, a member of the council, the following resolutions were adopted by the board of councilmen:

“1. That, in accordance with the resolutions of the citizens, of the 30th March, 1837, adopted at the Radical Church, (then before the council,) the square bounded by Chestnut, Magazine, Eighth and Ninth streets shall be given as a college square, and that the city of Louisville will undertake to build on said square the necessary buildings for a medical college, at a cost not exceeding $30,000, and that the city will advance in cash, for the purpose of purchasing a library, anatomical museum, and the requisite apparatus, &c., for the use of a medical school, the sum of $20,000, and that the control and management of the school be placed under the direction of the president and managers of the Medical Institute of Louisville.

“2. That the finance committee of the board cause a conveyance of said square to be prepared, *700stipulating for the erection of the buildings contemplated, for a medical school and other college edifices, and providing therein that, upon the future obtention of a charter for a college or university, the said square, buildings, library, museum, apparatus, &c., should, with the consent of the city, be conveyed to the trustees of such college or university, and providing that if the said square, building, property, library, &c., should cease to be used for a medical school, the whole should revert back to and re-vest in the city of Louisville, and be for the city benefit.

“3. That the Finance committee consider the ways and means of raising $20,000 for the purchase of the library, apparatus, &c.”

In pursuance of the resolutions thus adopted by the citizens, and approved by the city authorities of Louisville, on the 21st of November, 1837, a deed was prepared and executed by the city as grantors, to the president and trustees of the Medical Institute of Louisville as grantees. In this deed the said resolutions adopted by the city council are recited at length as showing the design and purpose of the grant, and the institute agrees to accept the property upon the terms stated in the resolutions of the citizens as approved and adopted by the resolutions of the city council; and by this deed the square of ground between Eighth, and Ninth, Chestnut, and Magazine streets is conveyed, in consideration of the premises, to said grantees and to their successors, upon the following trusts and conditions :

1. The institute to have and to hold the property for the uses and purposes and upon the terms and conditions stated in said resolutions.

2. The city to have erected within the years 1838 and 1839 the necessary buildings for a medical college, at a cost not exceeding $30,000.

3. The city to have the right at any time thereafter to have erected other college edifices on the said square, and to alter, change, modify, enlarge or di*701minish such additional buildings and improvements at discretion.

4. At the request of the city, the grantees and their successors are bound to convey the said square and all the improvements thereon, and the library, apparatus, and other property conferred upon them by the city, to a college or university, if a charter should be thereafter obtained incorporating such college or university in the city.

5. That all the property, real and personal, thus conveyed by the city, and to be procured and donated by the city, for the establishment of the medical school, shall revert to and be vested in the city for her own use, whenever the same shall cease to be used for the purposes of a medical school.

Such are in substance the purposes set forth, and the trusts contained in this deed to the president and trustees of the Medical Institute of Louisville.

The city afterwards erected buildings upon the square conveyed, as stipulated in the deed, at a cost of about $30,000, for a medical college, and appropriated and applied about $20,000 to the purchase of a library, anatomical museum, &c., for its use.

Afterwards, by an act approved February 12,1840, (Session Acts, 1839-40, page 173,) the charter of the Medical Institute of Louisville, by its consent, was so amended as in substance—

1. To abolish the office of moderators.

2. To give to the managers the right to appoint their own successors, and to fill all vacancies in the board, and to appoint their president and all the officers and agents of the institution, including professors, &c., and to remove them at pleasure.

3. To legalize the conveyance made by the city to the institute, and to confirm it according to its terms and conditions, and to authorize it to acquire other property and estate, so that its income shall not exceed $10,000 per annum, exclusive of the fees of the professors.

*7024. To authorize the Legislature to amend, alter, or repeal the charter at pleasure, provided the estate an¿ property of the institute, in the event the charter should be repealed, shall revert to the donors, grantors, or devisors, or their successors or heirs.

This institution under its charter, as thus amended by consent, continued in successful operation until 1846.

By an act of the Legislature, approved 7th of February, 1846, a charter was framed and adopted for the establishment of the University of Louisville by which—

1. Eleven persons named in the act are appointed trustees, and they and their successors are authorized to become a body politic and corporate in law, with the name and style of the “President and Trustees of the University of Louisville,” and when organized are vested with those powers and charged with those duties which usually appertain to the managers of institutions of learning of like character. The university may acquire and hold real andpersonal estate sufficient to produce an annual income not exceeding $40,000, and the trustees may establish all such departments, faculties, professorships, lectureships, and tutorships as may be considered necessary for the promotion of every branch of science, literature, and the liberal arts, and alter or abolish the same at pleasure, and appoint a faculty, professors, lecturers, and tutors, and remove them at pleasure.

2. The president and trustees are to appoint all officers and agents of the institution, and have the management and control of its concers, and may confer all such degrees and exercise all such powers as appertain to a university of the highest order.

3. The trustees have authority to select and appoint one of themselves as president, and remove him at pleasure. ■ The ten named trustees remaining, after the appointment of one of their number as president, are to divide themselves into five classes, two in each class: the first class to go out of office *703on March 1, 1848; the second on March 1, 1850; the third on March 1, 1852; the fourth on March 1,1854; and the fifth class on March 1,1856.

The power and authority to appoint the successors tp the first set of trustees, as their terms of office shall respectively expire, is vested in the public authorities, to-wit: the mayor and council of the city of Louisville, and the trustees so appointed by the city to hold their office for ten years. The city also has authority to fill all vacancies in the board, occurring from any cause whatever.

4. The president and trustees are required to make annual reports to the public authorities of the city of Louisville, showing the condition of each of the departments of the university, and the condition of the buildings, library, apparatus, &c., thereto belonging, and the mayor and council have authority, at all times, of inquiring into the concerns and condition of the institution.

5. All endowments or donations thereafter made to any department or branch of said university, to be held by the trustees, in trust especially for the.exclusive use of such department, &c., as may be designated in the grant, and all endowments or donations to the university, made generally and without specification, shall be applied to the use of the academical department thereof.

■ The act then, by way of preamble to the sixth section thereof, refers to the conveyance from the city to the Medical Institute of Louisville, of the university square, &c., as having been executed to carry out the wishes and purposes of the citizens as expressed in said deed, and in the resolutions adopted at the Radical Church, and reported to and approved by the public authorities of the city, and it tefers also to the stipulations in the conveyance in respect to the contemplated establishment, of a university, and the undertaking of the institute upon the request of the city, to surrender and convey all the.property' derived.from the city to such contem*704plated university; wherefore it is provided by the sixth section of the charter—

6. That when the Medical Institute, by request of the city, shall have conveyed the square, buildings, library, apparatus, &c., as derived from the city by the deed dated November 21, 1837, to the president and trustees of the university, and to their successors, that then the charter of the institute shall stand repealed, and the said institute shall then be merged into and become the medical department of the University of Louisville, and be under the control of the president and trustees of said university; provided that neither the city authorities or trustees of the university shall ever appropriate the Medical College edifice or said square, or the library, museum, apparatus, &c., belonging thereto, to any other use or purpose than for the advancement of the medical department of the said university.

The 7th section repeals the .charter of the Louisville College, as above referred to — the repeal thereof to take effect when this act should go into operation — and directs the proceeds of the past and future sales of the college or seminary lot, west of Eighth street, to be applied, under the supervision of the public authorities of the city, to the erection of buildings on the university square for the academical department of the university.

The 8th section provides that a majority of the trustees may appoint and remove the professors in either department of the university, at pleasure.

The 9th section provides that one class from the academical department, each year, may attend gratuitously a course of lectures on anatomy, physiology, and chemistry, and that one class of the law department may annually attend gratuitously a course of lectures on medical jurisprudence, and that each department, if required, and upon the recommendation of the mayor and council of the city, shall receive not exceeding six pupils without charge, who have been two years in the public schools of *705the city, and shall upon examination be found qualified for admission into the university.

The 10th section provides that the act shall take effect on March 15, 1846. The power is not expressly reserved by the Legislature, to alter or repeal this charter. • (Sess. Acts, 1845-46,page 135.)

Such are, in substance, the provisions of the act incorporating the University of Louisville.

On the 20th of April, 1846, at a meeting held on that day, the mayor and council of the city of Louisville took under consideration the question of directing the Medical Institute to convey to the university, the said square and buildings, library, museum, and the other property and funds which the city had previously granted to said institute; and after amending, and then approving a deed, from the president and managers of the institute, to the trustees of the university, which had been prepared by the city attorney, it was

“Resolved, That the deed be spread upon the records of this council, and a copy thereof be presented by the mayor to the said president and managers of the institute, who are hereby requested to sign, seal, acknowledge, and deliver the same for record in the County Court clerk’s office.”

On the 24th of April, 1846, the president and managers of the Medical Institute, as required in the deed to them from the city, and in pursuance of the request of the city council, as expressed in their resolution of the 20th of April, executed a conveyance to the president and trustees of the University of Louisville of all the property, funds, &c., derived from the city; which was acknowledged and recorded. In this deed the conveyance from the city to the institute, dated November 27, 1837, is referred to, and its terms, trusts, and conditions briefly stated. It is further stated therein that it was made in pursuance of the resolutions of the citizens, followed by those of the municipal council of the city of Louisville as heretofore referred to. That the trusts stipulated in *706the deed, and purposes indicated in those resolutions, were accepted and agreed to by the institute. That the college buildings had been erected by the city, and that the $20,000 had been advanced by the city as stipulated in the deed to them. That, with the exception of $1,211 33, the whole of the sum of $20,000 had been applied and expended in the purchase of a library, museum, and other apparatus; and then after reciting the various trusts and conditions upon which the institute received the estate from the city, and the fact of the obtention of a charter for the university, and the request of the city that the conveyance should be made to the university, the deed concludes as follows: “Now, in consideration of the premises,” &c., “the parties of the first part have bargained, sold, and conveyed, and by these presents hereby bargains, sells and conveys to the parties of the second part, the said square, Medical College buildings, library, anatomical museum, apparatus, &c., belonging to the medical school of the parties of the first part, and said $1,211 33 : to have and to hold the same, to the parties of the second part, and their successors forever, upon the trusts under which the same was held by the parties of the first part, and in strict accordance with the charter of the parties of the second part, and for no other use, trust, or purpose whatever.”

Two days after the date of this deed, to-wit, on the 26th of April, 1846, the president and trustees of the University of Louisville, through their secretary, present their first report to the mayor and council of the city, then being in session, in which they inform the council that they had organized themselves as a corporation, by electing a president and classifying themselves, as required by the 3d section of the charter ; that they had received from the president and managers of the institute the conveyance of the college buildings, &c., and that they were in possession of all the property named in the conveyance, including the sum of $1,379 32, balance in cash on *707hand belonging to said institute; and proceed further to state what action they had taken, and what they had in contemplation, to add to the efficiency of the institution.

It appears that after the institute had been endowed by the city, and before and after the organization of the university, under its charter, some inconsiderable presents in books, &c., had been made by private persons, some to the institute and some to the university, amounting altogether in value to about $950. These small presents are considered as gratuitous additions to the endowments previously made by the city, both to the institute and the university.

The medical department of this university continued in successful operation from the time of its endowment and cotemporaneous organization in April, 1846, until the present controversy arose.

By an act approved March 24, 1851, the present charter of the city of Louisville was framed. The 1st section of article 10 of this city charter provides for the election, by the qualified voters in each of the wards of the city, of two qualified persons for each ward, and that the persons so elected shall constitute and be styled the “Board of Trustees of the University and Public Schools of Louisville.” The first board elected are to be divided by lots into two classes: Those of the first classes to vacate their office in one year; the second in two years from the day of their election, and annually, thereafter, the voters of each ward in the city shall elect one person, as trustee of the university and public schools of' Louisville, to serve for two years and no longer.

The 2d section provides that the control and management of the university, of the high school for females, and of the public schools of Louisville, and of all the property and funds belonging to them, and which may accrue to them, in any way, for their establishment, management, and maintenance, under’ the provisions of the city charter, or otherwise, shall be’ vested in the said board of trustees, subject to the pro*708visions of the city charter, and the ordinances of the general council.

The 3d, 4th, 5th, and 6th sections of the 10th article prescribe the general powers and duties of the said board of trustees, in respect to the government and management of the entire university, and the general educational system in the city of Louisville, as provided for by the city charter. These powers and duties are similar to and not inconsistent with those conferred and imposed upon the trustees by the charter of the university.

In the 6th section it is further provided that when two years shall have elapsed after the academical department of the universüy and the female high school has been opened for the reception of pupils, none shall be received or admitted therein as pupils, except such as have attended for at least one scholastic year in some of the public schools of Louisville, and such others, of prescribed age and proficiency in learning, as have been raised and educated at the orphan .asylums, or at other charitable institutions in the city.

It further provides that no fees shall ever be charged for tuition in the said academical department of the university, or in the high school for- females.

The seventh section requires that' the board of trustees shall annually, and oftener if required by the general council of the city, report in writing to the council the action, progress, and affairs of the university and public schools, and the condition of their property, funds, &c.; and report such other matters as may be required from time to time by the council.

The eighth, ninth, and tenth sections charge the general council of the city with the duty and power to procure, by taxes and loans, &c., and to apply ample and sufficient funds for the support and maintenance of the whole system of public education in the city as provided for in the charter, including the support of the University of Louisville, and all the pub-*709lie schools, and for the erection of buildings for the academical department of the university, and for its support any endowment by the city; to erect schoolhouses in each ward of the city, and to erect buildings for a female high school, and to support it; and

The fourteenth section of the tenth article provides that, “the said board of trustees, and their successors in office, as provided for herein, shall take and hold the possession of all property and funds, set apart for the use of said university, for said high school for females, for the public schools of Louisville, and for educational purposes in the city. But the university square, and all the property of the University of Louisville, shall be held to the uses and purposes set forth in the deed of donation, made by the mayor and council of said city to the president and trustees of the Medical Institute of Louisville, and in accordance with the resolutions adopted by the people of said city, in mass meeting at the Radical Methodist Church, on the 20th day of October, 1837.”

The tenth section of the thirteenth article provides that as preliminary to the right of the trustees, elected under the foregoing provisions to take possession of the university, its property, funds, &c, with a view to its management by them, their constitutional validity shall be tested and settled by the proceedings instituted in this case.

By the foregoing provisions of the city charter, the corporate existence of the University of Louisville has not been destroyed, its powers and duties have not been abridged, but rather enlarged, its property, resources, and funds have not been diminished, but provision ample is made for their increase; and the trusts, uses, and purposes for which the public endowment by the city government was made as limited in the deeds exhibited, have not been changed, diverted, or defeated, but on the contrary they have been expressly recognized, ratified, and confirmed by the 14th section of the 10th article of the city charter. *710What has been done and effected then by the above provisions of the city charter, which is in violation of the constitution of the United States or of this commonwealth ?

This question is answered by the counsel for the defendants by assuming, 1st. That the University of Louisville is a, private institution or a, private corporation ; and 2nd. That consequently the original trustees appointed and incorporated by the university charter, and their successors appointed, as in the charter directed, by the mayor and council of the city, have taken and derived under the charter vested rights and franchises of which they cannot be deprived by either the local government of the city or that of the State, or by both combined, and that the said university charter is a contract between the original trustees and their successors, on the one part, and the commonwealth of Kentucky on the other, which cannot be altered by the Legislature as has been attempted without their consent; and that the immutability or inviolability of the charter is secured by the first clause of the tenth section of the constitution of the United States, and by the 18th section of the 10th article of the former, as well as by the 20th section of the 13th article of the present constitution of this State, each prohibiting the enactment of laws impairing the obligation of contracts.

On the other hand, it is assumed by the city, 1st. That the University of Louisville is a public corporation, created and designed exclusively as a political or civil institution, to be employed and used in the administration of the government for the promotion particularly and specially of the political and pecuniary interests of the local political community of Louisville, and generally of the interests of the State. 2nd. That the property and funds of the institution are public and not private, and were provided and set apart by the local community of Louisville, through her local government, and as a municipal corporation for the advancement of her public inter*711ests and for the benefit of her citizens, and not for the private advantage of the original trustees or their successors, and that the charter of the university was not such contract between the State or the city, and the defendants, the trustees, as can be, or was intended to be, protected and secured by the constitutional provisions of the State and the United States, to which reference has been made; but that the charter was contrived and procured to be enacted merely for the purpose of furnishing an organized machinery and instrumentality by which to accomplish public objects, by its administration for the time being in that form, of public property and funds appropriated by the city government for the advancement of public instruction and the interests of the citizens of Louisville.

If the University of Louisville, as incorporated by the act of February 7, 1846, is a private corporation, and if the charter is a contract with the original trustees and their successors, accepted and agreed to by them, and by which they have acquired vested rights for themselves or those whom they represent, of a private, not public nature, then it must be conceded that the Legislature had no power, without the consent of its founders, or of the parties to the contract, to change the number of the trustees, to abridge their term of office, to alterthe mode of their appointment, or to authorise and direct the delivery of all the property and funds of the university, and to give up the entire management and control thereof, and of all the affairs and concerns of the institution, to the “Board of Trustees of the University and Public Schools of Louisville,” elected by the qualified voters in the several wards of the city — all of which has been attempted to be done by the various provisions of the city charter above referred to — and in such case, if such be the character of the institution, those provisions of the city charter are unconstitutional and void, unless they be adopted, accepted, and agreed to by the real parties in the interest to this *712private corporate contract; if such it is admitted to .be. But if, on the other hand, the University of Louisville be a public corporation, civil or political in its character and objects.; if it has a public foundation; if its funds and property be public and not private; and if the trustees are mere public agents of the government of the State or of the city, selected, by authority of law, for the purpose of managing and administering its funds and affairs, in such case those provisions of the city charter, by which the possession, government, and control of the institution, and its property and funds, is given to the new board of trustees, are valid and binding : — because such corporations are fully and completely subject to legislative government and control, and their charters may be amended, altered, and even repealed, at the pleasure of the government, saving, however, any private rights and interests of value which may have vested, and, provided, by so doing, that the uses, trusts, and rights arising from valid grants, shall not be impaired or defeated. (See Kent’s Com. 274 and 300; Angel & Aimes on Corp. 27-8; McKim vs. Odone, 3 Bland (Md.) Ch’y Rep. 417.)

In detemiing the true character of the corporation of the University of Louisville, it is not necessary to take into consideration the classes into which corporations are divided, as sole and aggregate ; as ecclesiastical and lay. There is no question but that the University of Louisville is a lay corporation. Lay corporations are, however, subdivided into civil and eleemosynary. It is not deemed important, with a view to the decision of the constitutional question under consideration, whetherthe university of Louisville be regarded as belonging to the one or the other of those subdivisions, because there are both public and private civil corporations ; and so of those that are eleemosynary, which maybe either public or private, as their foundation, purposes, and management may be of a public or private nature. Cities and towns chartered and provided with subordinate local gov*713ernments, and counties clothed with a certain portion of governmental power and authority, are civil corporations, always public in their nature and attributes, because they are instruments employed by the sovereign power of the State to aid in the administration of civil government within certain limits : so, also, institutions created and chartered for banking purposes; for the construction of highways and public improvements, for the purpose of carrying out a system of public instruction; for manufacturing purposes, to manufacture the materials necessary for the government to use in time of war for the defense of the country, &c., are civil corporations, and must be classed as either public or private in their nature, according to their character, objects and foundation. All corporations are artificial bodies, having no natural or legal existence until created and incorporated by the sovereign power, and when created, their character as public or private, can and should be tested by the following simple rule : If they are created by the State, to carry out a legitimate system of public policy through their instrumentality, and upon a foundation or endowment, in the beginning, wholly provided by the government, such corporations are public in their nature, and so remain, although liberal and charitable individuals may subsequently contribute their private funds for their better support, and their charters may be altered, amended, or totally repealed by the government at its pleasure. If, however, a charter is passed by the State, in order that a company of private citizens under its provisions may be organized into a corporation founded upon their private funds and capital, and its corporate functions, privileges, and capital, are to be used for the private gain and profit of the contributors to its capital and funds, or for purposes of charity, merely, such corporation is private, and its charter possesses the character and attributes of a contract between the government and its founders or stockholders. Itis under the protection of the constitutional provisions above *714referred to, and cannot be repealed, or changed, or altered by the government so as to impair it, in any degree, unless with their assent, or that of the real party contracting with the State.

If the University of Louisville had received its endowment from the State of Kentucky, then inasmuch as the State would, as a political sovereign, have both created the institution, and endowed it with the property and funds, in the first instance provided for its support, and as the purpose of its creation was, undoubtedly, to promote a system of public education, which is a matter of public and' governmental concern, duty, and power, in such case, as the State would have been both the incipient and perficient founder of the institution, there would have been no difficulty, upon the application of the rule as above defined, in determining that this university was a public corporation.

So on the other hand if the State had upon the application of private citizens, .as private contributors or subscribers of their own property or money, granted this charter to them to enable them to organize and support this institution for their private profit, or for charitable purposes, to enable them as philanthropists or patrons of the cause of learning, science, and education, to diffuse and furnish to the youth of the country gratuitous instruction: upon the application of the rule stated, it would be easy to ascertain the character of such corporation, and in such case it would necessarily be adjudged to be private, and as private not subject by alteration or amendment, to be impaired by Legislative interference, although the State itself might subsequently to its creation have furnished the largest contributions for its successful operation; for though it be the design or motive of the State in granting charters for the incorporation of companies, to promote the public interest and general welfare of the citizens, such design or motive- would not of itself necessarily make the corporation public, inasmuch as a similar design *715and purpose may actuate the government in the creation of corporations whether they be public or private. - But the University of Louisville, it would seem, though chartered by the State, and for important public or governmental purposes, to-wit: the diffusion of learning and the promotion of the pecuniary interests and the local prosperity of the citizens of the municipality of Louisville in particular, and of the .general welfare of the people, yet it was not founded or endowed either by the State of Kentucky or by private citizens in their individual capacity, but by the city of Louisville as a public municipal corporation, or by the municipal government of the city exclusively in the first instance; and if this be a foundation or endowment of this university, which, in connection with the purpose of its creation would make it a public institution, it would so continue and remain .to be public, although private individuals may have contributed subsequently, money or property to aid in the support, to facilitate its operations and to promote its success. As the corporation may be public or private in its origin, so it must remain, and its character cannot be subsequently changed from public to private or from private to public, because of subsequent contributions, whether made by the government or by individuals. If the corporation be public, private contributions, as blended with its public funds, become public, and are the public property of the corporation. If it be private, contributions by the State government, or by municipal governments within the State, become a part of the private property or funds of a private corporation, which the State has no power to sequestrate or to apply to public purposes, or to any other uses than those prescribed in the charter; nor can the charter be so altered as to impair the rights conferred, and the power's granted thereby, unless with the consent of the corporation. If then the University of Louisville be a public corporation, those provisions of the charter of the city which enlarge the numbers of *716the trustees, shorten the term of their offices, transfer the right of their appointment from the city council to the majority of the qualified voters of the several wards of the city, and which provide for the delivery of the university square, buildings, property, and funds, and the control and management thereof, to the “board of trustees of the university and public schools of Louisville,” are binding, valid, and constitutional. If, however, the university be a private corporation, then those provisions of the city charter are invalid and unconstitutional, unless enacted and adopted with the consent of both of the real and actual parties in interest to the contract, the terms of which are fixed and defined by the charter of the university itself. It is not deemed necessary to sustain the positions assumed in this opinion, to present an array of authorities composed of the decisions of the Supreme Court of the United States, and of the several States of the Union, inasmuch as they are manifestly supported by sound reason and a number of adjudged cases.

It is not controverted by the counsel who represent the university that the institution possesses two of the attributes of a public corporation, to-wit: 1. That it received its charter from the government of the State; and 2. That it was chartered for the public purposes indicated in the resolutions, (and especially the fifth of the series,) adopted by the citizens of Louisville at their public meeting, held at the Radical M. E: Church, on the 30th of March, 1837, as ratified and approved by the resolutions of the mayor and council of the city, adopted on the 3d of April, 1837, and as further indicated in the deed from the city to the Medical Institute of Louisville, made in pursuance of the said resolutions of the citizens and of the city council, dated 21st of November, 1837, and in the deed from the institute to the university, dated 24th of April, 1846. The purpose thus shown being manifestly to create a great university as the head and pinnacle of a splendid and munificent system of *717public instruction, for the promotion of academical, legal, and medical learning, under the auspices of the public municipal authority and government of the city of Louisville, with a view to the prosperity and aggrandizement of that government, and of the inhabitants of that city. That such was the purpose of the creation of this university cannot be reasonably questioned. But it is insisted that notwithstanding it is thus characterized as a public institution, yet the university is a private corporation, because it was not endowed by the government which granted the charter; that its foundation was not provided by the Legislature of the State which granted the charter, but by the city of Louisville.

It is thus assumed that, although the city of Louisville be a public municipal corporation, itself the exclusive creature of the sovereign powers of the State, subject to have its political and governmental capacities increased or diminished, regulated or totally annihilated at the pleasure of the Legislature of the State; that although the property and funds constituting the exclusive original foundation of the university, belonged to the city as a municipal government, and as a public and political corporation; and although the charter of the university was expressly granted for the city, and at her instance, to receive the endowment previously provided, and the university as constituted was procured to be created to serve as a public instrument and political machine by which, to promote a system of public education as a public enterprise for the promotion of the prosperity, grandeur, and wealth of the city, yet that because the incipient founder, the State, and th sperjicient founder, the city, were not the same identical political communities, and because the former was the government of the State, and the latter was the local and subordinate government of the municipality of the city of Louisville, therefore this university is a private corporation, and therefore the original board of trustees and their successors are parties to a pri*718vate contract, and clothed with rights, franchises, and powers that cannot be divested by the Legislature of the State, and that they are thus, in the government of this university, made wholly independent of the local government of Louisville, which provided its entire and actual original foundation, and of the government of the State, which furnished the charter for its organization. This assumption is not admitted to be correct, and is not authorized by the weight of authority. The. celebrated case of the Dartmouth College vs. Woodward, reported in 4 Wheaton, 518 to 715, is not applicable, because the Dartmouth College was beyond controversy a private corporation, founded upon its first creation and organization by private benevolent persons — the Rev. E. Wheelock and others of Connecticut and New Hampshire, and the earl of Dartmouth and others of England. The king of England granted the charter at the instance of the private contributors to its funds, and the State of New Hampshire was neither the incipient or perficient founder of the institution; and the question in that case was, whether, it being undoubtedly a private corporation, the government of the Dartmouth College could be taken from the trustees or their successors, regularly appointed under its charter, and the government, property, and funds of the institution transferred to other persons, otherwise appointed, and whether the constitution and government of the college could be radically changed by an act of the New Hampshire Legislature, against the consent of its founders or their representatives. The court decide in that case that such act was in violation of the constitution of the United States, was null and void as an attempt to violate and impair the obligation of a private contract between the king of England and the individual founders of the college. The question did not arise, in the case referred to, as to whether a corporation like the University of Louisville, receiving its charter from the State government, and receiving its foundation from the munici*719pal government of the city of Louisville, a fractional part of the State government itself, is public or private in its nature, and consequently no such question was decided. But in that case a distinction is drawn between private and public corporations; and as public corporations are defined by Chief Justice Marshall, in the opinion of the court delivered by him, the University of Louisville is a public corporation, because it was chartered by the State, to receive a public foundation wholly furnished originally by the local public of the municipality of Louisville, in order to promote the public interests of the city. It is true that in the definition of the Chief Justice, whether the public endowment alluded to shall be made by the local or general public, or by the entire government of the State, or a fractional and subordinate part of that government, is not stated. But if the city of Louisville, as a subordinate local community, having political power and authority within prescribed limits, and within certain territorial extent, to assist thereby in promoting the purposes of the general government of the State, shall, with the public property belonging to the city government and with its public revenues, endow this university, its endowment and foundation is necessarily public; or, in the language used in the opinion referred to, “the funds of the college arepuUic property” of the city of Louisville ; the city, as a municipality or local government, “is alone interested,” legally and politically, “in its transactions.” Surely such foundation and endowment cannot -be said to be private; for such assertion would be absurd, unless the private individual or individuals who furnished it could be named and pointed out. The funds and property of this university cannot be claimed as private. If so, to whom do they belong ? who furnished them ? to whom do they revert, upon a dissolution of the corporation, as original proprietors? No private person or number of private persons can be named as the perfieient founders of this institution. But *720the charter itself shows that the contemplated university, designed to be organized under its provisions, wag, as preliminary to or as cotemporaneous with its organization, to receive its foundation and endowment from the local community and municipality of Louisville, out of the property and revenues belonging, not to the citizens of Louisville as private persons, but to the public political corporation of which they were members. This is evident from the sixth section of the charter of the university, and the preamble thereto, in which reference is made to the proceedings of the citizens at their public assemblage, and of the city council consequent thereupon; to the deed from the city to the institute; and to the stipulation therein, to the effect that the property and funds therein named should be afterwards conveyed by the institute to the contemplated university; and is further manifest from the seventh section of the said charter, which provides for a repeal of the charter of the Louisville College, a public institution of the municipality and under its absolute government and control, and for its being merged in the university, with the property belonging to it; and that the proceeds of the sale of the college property should, under the supervision of the city authorities, be applied to the construction of an edifice on the university square for the academical department of the university. The sixth section provides for the conveyance by the institute to the university of all the property and funds described in the deed from the city to the institute, at the city’s request; that its charter shall be repealed, and it merged into the university, so as to constitute its medical department.

It is conceded that had this corporation been chartered by the legislature, upon the application of private individuals, and to receive from them a private foundation, and that the corporation was thus organized and thus founded, in such case it would have been private in its character, and so have continued, although the city of Louisville as a local and subor*721dinate community, or the State itself may have subsequently added ever so largely in property or money to such private foundations. But such are not the facts of this case. The institute, although at first in form a private corporation, without any foundation either public or private, received upon terms a public endowment or foundation from the city, and consented to an amendment of its charter by which, if it did not actually become a public corporation itself, it agreed to pass with the public endowment it had, upon certain conditions and trusts, received from the city, and to become merged into the University of Louisville, whose charter was granted expressly to authorize its organization, in crder that it might then receive'such public endowment; — and the university being in its origin, as built upon an exclusive public foundation, a public corporation, its public character cannot be changed even though additions may be made to its foundation by private contributors, whose contributions must be regarded as furnished to increase and add to the public property and funds provided by the city for the support of the institution, and cannot have the effect to change its nature from public to private. It is assumed in the opinion of the Circuit Court, that although the city of Louisville is a public municipal corporation, created as an instrument of the government of the State, to assist in governing a portion of its inhabitants within certain territorial bounds under special regulations, subject to the jurisdiction and under the absolute control and dominion of the State to be continued or destroyed at pleasure; and although the property and revenues of the city are public in respect to the city government, and the citizens and public authorities of Louisville, yet in respect to the whole State they are private, and therefore independent of Legislative control, unless with the consent of the city government. This position is untenable. If the municipal functions and government of the city are granted, and may be, at discretion, withdrawn by the State, regardless of her *722consent; if the municipality of Louisville has been created by the State as a public machine and ingtrument to assist in the civil administration of its government; and if this instrument may be destroyed at the pleasure of the sovereign Legislative authority of the whole State; then, should the State exercise its undoubted power and authority for such purpose and repeal the charter of the city, and destroy the city government altogether, as an expensive and superfluous appendage to the other public institutions of the country, in such case what would become of the public revenues of the city remaining unexpended, and of its public property, real and personal, which had not been previously appropriated. Certainly neither the legal and equitable right would remain and continue to be vested directly or indirectly in the municipality which no longer existed, and which was' legally and constitutionally defunct. The inhabitants as a corporation could no longer lay claim to the public property and funds, because they had ceased to exist as such; nor could they as private individuals be entitled to a distribution of the same among them severally, because the fund being public it could only be applied to public purposes. If the supreme government chooses for its own convenience and purposes to use the instrumentality of subordinate and local public communities to assist in its administration, they may, as being completely under its jurisdiction, be discontinued and abolished at pleasure, and when abolished, all their public property and revenues not appropriated, and which have been acquired in the exercise of their subordinate powers and functions, would necessarily, with all those powers and functions, vest in, and return to the supreme government, upon which would rest merely the moral obligation and duty of applying in good faith those funds for the benefit and advantage of those of her citizens from whom they may have been principally collected by the local authorities. The city of Louisville, as an inferior local government, *723under the authority and jurisdiction, and with the consent of the State, employs a portion of its public property and revenues for the support of a university as a matter of public policy, to promote her own aggrandizement, by the advantages to her citizens proceeding from a grand system of public education, of which this university was to be the main pillar. It follows that the university is a public corporation, because it was adopted and wholly endowed as a public agent with its public funds, by the city of Louisville, itself á public corporation, and public instrument and agent of the supreme government, and both the former and the latter public agents and instruments were created by the State, manifestly for political and governmental purposes.

The State creates a public agent a municipal corporation for public purposes with certain powers as an instrument of government within the limits of the city of Louisville. This public corporate agent of the State has authority from the State to endow with public property and revenues a public sub-agent, a chartered university, by means of which to carry out a system of public policy, in respect to education and the diffusion of learning under the public patronage.

It seems, therefore, that the sub-agent, the university, is as much an instrument of the supreme government as the principal agent, the municipality of Louisville, and that both are alike subject to legislative control as public corporations, always provided that by the exercise of such control there be no unauthorized interference with or violation of the vested rights of individuals’ or of private corporations.

The university of Louisville is assumed to be a public corporation, therefore, for the reasons stated, and which may be briefly recapitulatee, as follows:

1. Because its endowment was wholly provided and furnished by a public instrument and agent of the supreme government, to-wit: the public municipal corporation of the city of Louisville, which makes the said endowment public, as much so as if it had *724been furnished and provided by the State directly, instead of indirectly, through said public governmental agent.

2. It Was created by the supreme government of the State as a subordinate public sub-agent; and

3. It was designed to assist in the administration of the government, in respect to the support and management of a plan of public instruction.

■ 4. Not only was it founded by the local public óf Louisville as a municipal corporation, but, more effectually to mark its public character, the city authorities appointed the trustees, filled all vacancies occurring in the board. The tx’ustees were bound to make reports in writing, to the city council, annually or oftener, if required, of the action, progress, and condition of the institution, and of all such matters, in respect to its management, as might be required by the public authorities, who at all times had the power of examining its affaix’s and condition, as appears from the third and fourth sections of the charter.

The trustees of the university are therefore mere public employees, appointed without emolument or rewai’d of any kind, to manage it as a public institution, until superceded either by a repeal of its charter or a change in its constitution, by which its management may be committed to other persons appointed by the State.

But suppose the position taken by the circuit judge to be correct — that because the university was endowed or founded by the local community of Louisville, and not directly by the Legislature of the State, that therefore, (although the city goveimment is itself a mei’e political creature and agency of the State,) the university is a private corporation, and that its charter is in the nature of a contract between the government of the State and the government of the city as contracting parties, and hence irrepealable and unalterable except with the consent of the city; or, to use the language of the opinion of the circuit judge, that *725the property of the city is “as essentially private property as that owned by any of her citizens, and as effectually protected from legislative interference without her consent” — the answer then would be that the city and her inhabitants have consented to the amendments made in the charter of the university. They were proposed by the city, and adopted by the Legislature at her request, and ratified by the people of the local community ; and the present proceeding has been instituted by the city itself to recover in behalf of its trustees appointed under those amendments, the possession of the buildings, property and funds composing the university. Surely it cannot be contended 'that the contract may not be radically changed or totally rescinded by the. contracting parties themselves, and assuming the endowment by Louisville to be private, furnished for a private institution, and for private purposes of gain and profit to the city, or for charitable uses, then any change may be made in the fundamental statutes of the institution, substituting one set of managers and overseers for another, and providing a different mode for their appointment; provided the uses and trusts upon and for which the corporation was endowed, be not defeated or destroyed, and provided both the incipient and perficient founders consent to make such change, and accept it.when made. If the university of Louisville be a private corporation, and its charter be unalterable andirrepealable, on the ground of its being a contract with a private party, whose vested rights under such contract cannot be constitutionally impaired, or changed by the State, except with the consent of such contracting party, then it is important to know and determine who is this contracting party ? With whom did the State contract, when the charter was issued and accepted, and the university organized and endowed ? Not with the eleven trustees who first received their appointment as such in the charter itself; for they did not apply to the State for the charter, nor did they promise or contemplate the endow*726ment, out of their private property or means, of the university, before its charter issued; nor did they endow it after it was organized under it.

The authorities of the city government, it is conceded, applied for and procured the passage of the charter, and doubtless tl:e names of the eleven gentlemen mentioned in the charter as the original trustees were presented to the Legislature by the city with a request that they should be appointed by the charter, as the original trustees through whom to conveniently effect the organization of the institution, and under the charter they took no vested rights, in the corporation after its organization; they held no interest of value ; they were mere naked trustees charged by the State and the city with the temporary management of the institution, after its organization was effected through their instrumentality, and until their successors should be appointed by the city council. No personal interest of value or vested personal right, was connected with the trusts confided to them for the time being; they received no compensation for their services, which were to'be gratuitously rendered; they were under no obligations, legal or moral, to accept the trust; accepting it, they could resign it at pleasure, and it is not perceived how they can be regarded as having such vested right or interest in this corporation as that they may forbid the sovereign power of the State, with the consent of the founder of the university, the city of Louisville, to new model and change its government so as to throw its management in the hands of other trustees, at the same time leaving untouched the uses, and trusts, and purposes for the furtherance of which the funds and property were provided by said city. They were the mere agents of the State or city, or of both, with instructions and authority for certain specified purposes as prescribed in said charter, and surely the State and the city concurring, they may revoke such agency and appoint other agents at their discretion ; therefore the eleven trus*727tees were not the corporation itself, but the mere agents first named and authorized to manage it under the supervision of the city authorities, and they have no such interest in the corporation as would justify them in the pretension that they are the actual contracting parties with the State, and as such, that they are the proper persons, on their own behalf, to complain that by the amendments to the charter, revoking their agency and placing the government of the university in other hands, their constitutional rights have been violated. What rights, and what interest of value in this charter contract, if it be such, have they? How can they be profited by keeping the constitution of the university unchanged so that the mode of appointment, and the number of trustees, or their term of office, may forever continue unaltered. How would they be benefitted by this ? The terms of their offices would expire at the period limited at all events, and during their continuance in office they have labor, duty, and responsibility to perform and encounter, without emolument, unless, indeed, upon the unjustifiable supposition that the incumbents be corrupt and dishonest, and that they make their offices lucrative by receiving bribes for the appointment of incompetent and unworthy persons to the professorships in the institution, or by the embezzlement and appropriation of its funds to their private use. Whether this university be a public or private corporation, these trustees are the mere volunteer agents.of the city of Louisville, allowed, until the revocation of their agency, to discharge the duties imposed on them by the charter; and the city, with the consent of the State, may at any time by law effect that revocation, and place the institution and its management under the subordinate control of other persons. No rights or interest of value could, under the charter, attach to the trustees, personally which could be injured or impaired by the amendments made to it; for none such did they acquire when they accepted the position of trustees, *728that through them the city might have her university organized, to receive the endowment from her, in fulfillment of this very purpose, as shown by the deed from the city to the Medical Institute; when their position as trustees should cease to exist necessarily by the limitation of their appointments as to time, or by the legal revocation of their appointments, in neither event would they retain a single vestige of interest or shadow of a right under this charter. The professors and other employees of the institution cannot be regarded as parties to this contract, if such it be, 1. Because they were unknown to the State, and had no official existence at all, when the charter was issued, or when it was accepted and the institution organized and endowed under it, and when such contract was consummated and the legal parties to it ascertained. 2. Because they are the mere servants and employees of the corporation for hire, subject to be appointed and removed by the trustees at pleasure. Even the professorships, tutorships, and subordinate employments themselves may be multiplied or discontinued, established or abolished by the existing trustees: — Therefore, when this assumed contract was proposed, accepted, and consummated,, and the legal parties to it ascertained and fixed, the professorships, tutorships, and other employments in the university were not as yet established, nor were the professors, tutors, and other officers then chosen or known.

The students who receive their education in the institution cannot be regarded as having any legal or equitable interest under this corporate contract, if such it is, and cannot be parties to it, for the reasons given above, and because, further, they merely deal with and employ the corporation to furnish them instruction for compensation agreed tobe given. They come and go continually, and have no further interest in the institution, after they have received the amount of instruction desired, and for which they have made remuneration. And the question again *729arises, if this charter be a contract not to be altered or impaired except by consent of the contracting parties, who are they, or rather, who can they be, but the State, the incipient, and the municipality of Louisville, the perficient founder of the university, both of whom have consented to and accepted the amendments and alterations to this act of incorporation, as contained in the charter of the city; and if the principals have consented to these changes in their contract, the trustees, as the agents of one or both the parties, have no right to complain, because no contract of theirs has thereby been impaired, and their constitutional rights have not been infringed. If, under the operation of the amendments objected to, the trustees are required to surrender the trusts temporarily reposed in them, they are not injured, but thereby only exempted from the onerous and responsible duties of the station. The professors, tutors, &c., employed, have no right to complain; for if deprived of their situations, they are at liberty otherwise to employ their time and talents. The youth instructed in the institution may not complain, for if, under the constitution of the university, as amended, they or their parents and guardians choose to withdraw their patronage from it, they may do so, and receive instruction from and bestow their patronage on other institutions of learning, at their discretion.

In the Dartmouth College case, the trustees, the regular successors of those named in the charter, were plaintiffs in the action against W. II. Woodward, to recover the records, books, property, and funds of the institution; Woodward had been removed from his offices of secretary and treasurer of the college, and was appointed to the same offices by the new board of trustees, who had received their appointments, under the recent re-construction of the charter by the Legislature of New Hampshire. The defendant resisted the claim of the plaintiffs upon the ground that under the amended charter he was, as secretary and treasurer of the Dartmouth University, *730¡[n rightful possession of the archives, property, and funds of the college, by authority from the new board 0f trustees and overseers. The validity of the acts of the New Hampshire Legislature, amending the charter, was the sole question involved. The Dartmouth College was rightfully adjudged to be a private corporation, and the amendatory acts of the Legislature, by which it was attempted to re-model the institution and radically change its government, and its governors, were pronounced to be unconstitutional, and judgment given for the plaintiffs.

The right of the trustees in that case to contest the validity of the amendments to the charter, and to maintain the action, was not based upon the ground that they had vested rights and interests of value in the institution which had been impaired, but, upon the ground that they were the proper plaintiffs in the case, and had authority to sue under the charter, a.nd to recover, as the representatives and trustees of the private founders of the institution, their donations, so as to dispense their bounty and their charitable contributions through the instrumentality of a charity school, or an eleemosynary corporation, as Dartmouth College was, from the peculiar features of its charter, pronounced to be. What the opinion of the Supreme Court would have been in that case, had it appeared that all the private founders of the college had assented to and accepted the modifications of the charter made by the acts of the New Hampshire Legislature, cannot be known with certainty. It is certain, however, that as such was not the fact in that case, it bears no analogy to this, but differs materially in this ; that in that case the founders of the institution, through the corporation as their representative and assignee, were complaining that their contract had been impaired and violated without their consent; and in the case under consideration, the original perficient founder consents to the alterations made in the contract, and demands that the institution, with its government as changed, shall be sur*731rendered to a new set of agents and governors, selected in amode agreed upon by both the contracting parties —the State and the city. In the Dartmouth College case, from the provisions in the charter, and from the terms and trusts created in its foundation and endowment, it was adjudged to bé a charitable, or an eleemosynary institution, created as an instrument to dispense the bounty of the donors, yet it is pronounced by Chief Justice Marshall to be “plainly a contract to which the donors, the trustees, and the crown were the original parties,” the original trustees being, doubtless, themselves donors. In the present case it is perfectly manifest, from the resolutions of the citizens in their public meetings, from the corresponding resolutions and action of the mayor and council of the city, from the recitals and trusts as contained in the deed from the city to the institute, and from the institute to the university, and from the whole scope and tenor of its charter, that the University of Louisville, if it be a private corporation, is not an eleemosynary or charitable institution, nor was it created or designed for charitable uses or purposes ; but it is indisputably evident that it is a civil institution, and that it was created and founded expressly to promote the interests of the public of Louisville, and to promote the growth, the wealth, and aggrandizement of that city.

A college or university, employing its funds and property in the business of carrying on a system of education for compensation and profit, or in procuring.teachers, and selling instruction for gain, cannot be regarded as an eleemosynary institution, any more than banking, manufacturing, commercial, or mining corporations, who employ their capital to make gain and profit by trading in money, goods, minerals, &c. And it does not follow that a chartered institution of learning is necessarily eleemosynary in its nature, but its character, whether civil or eleemosynary, depends upon the object and purpose of its creation, and the uses and purposes to which its *732labor, funds, and property are to be applied under the provisions of its charter. Then if the Louisville University be a civil institution, and if by its charter it is manifest, as it is, that it was created by the State and wholly endowed, or in other words, its whole stocktaken, and capital furnished by the city of Louisville, to promote the interest of her government and citizens, it follows that the city, as the actual and legal contracting party with the State, may consent that the Legislature of the State may amend its charter, and she has authority to accept such amendment when made, and the trustees or others may not complain of violated rights or breach of contract, if the city is content. It must be observed that the defendants, the present trustees, are mere agents having furnished no part of the stock, capital, or property upon which this university is founded; and notwithstanding this, these trustees are the parties defendants, who resist the demand of the city, (she having furnished everything,) to have her institution delivered to other agents or trustees selected by her under its amended constitution. Suppose, (as well may be the case,, should the charter so provide,) that the president, directors, and officers of a banking or manufacturing corporation, named and appointed in its charter, should own no part of the capital stock, property, or funds of the corporation, but that they should have been selected by the intended stockholders, and named in the act of incorporation to manage the concern with or without compensation: would they have the right to hold on to the books, papers, funds, and property of the corporation against the demand of the stockholders made through a new body of officers appointed, under an amended charter; and could such board, with any show of reason, or upon any sound legal principle, deny the right of the company to consent to have their own charter amended, and their privilege to accept and make effectual such amendment ? These querries must receive a negative answer. Then *733the city of Louisville is the only stockholder in this chartered university; she contributed the whole original capital, not for charitable purposes, but for her own exclusive gain and profit, and she has an undoubted right, despite the opposition of the trustees, to accept the amendments to the charter, made at her instance, by the Legislature of the State.

The city of Louisville, as a municipal corporation, by authority from the State, may devote the public property and revenues of the city to promote a system of education, for her own benefit. Suppose, by her charter, she had general legislative power also to incorporate colleges and universities,-as instruments of the city to effect such views, within her local and subordinate jurisdiction; and in the exercise of such power, suppose the city council had both chartered and endowed the Louisville University to carry out a system of public policy for the city, in respect to education, could the trustees, in such case, claim that the charter was a contract between them and the city government, and that they, as the beneficiaries, could gainsay the authority of that government so to amend the charter, as to authorize the transfer of the university to other trustees of her own appointment ? They could not; and if not, their right to set themselves up as parties to and beneficiaries under this charter contract cannot arise, or acquire validity, because it was granted by the State to the city, at her request, with the express design of receiving its foundation from her.

On behalf of the defendants it is first assumed that the university is a charitable institutiion; and then it is contended, that although, (as conceded in the opinion delivered by Chief Justice Marshall in the Dartmouth College case,) the trustees have no beneficial interest or vested personal rights under the charter, yet as the representatives or assignees of the donors or founders of the charity, (who do not appear to protect and defend their own right, to have their bounty dispensed according to their own de*734sign,) they, the trustees, have the right to claim "on behalf of their constituents the inviolability of their charter, and to protect it from legislative control, and a number of authorities are cited to sustain a position which is not controverted, and which cannot affect the present case, because the University of Louisville is not a charitable institution, or an eleemosynary corporation, and because in this case the founder, the city, does appear, and demands that the university, created at her instance, and the capital, property, and funds of which were furnished by her, shall, under its modified charter, be surrendered up to the “Board of Trustees of the University and Public Schools of Louisville,” lately appointed according to the tenth article of the city charter.

On behalf of defendants it is assumed that the city of Louisville has no beneficial interest whatever in the university, either legal or equitable, and that the cause of education generally, and of medical education in particular, are the only beneficiaries, and that they are not complaining, and are not parties to this proceeding, except as represented by the defendants; that the city has, by the deeds to the institute and to the university, made valid grants of her property for the benefit of education, and she occupies no longer the attitude of holder of the legal title, nor that of cestui que trust under the grants; and this is contended for, in the face of the resolutions of the citizens, and of the city council, and of the very purposes and objects of the appropriation of the property and revenues of the city, as distinctly defined and set forth in the deeds referred to. The correctness of this view is not perceived. On the contrary, the city should be regarded as having, by those deeds, and in that form, made an investment of her property and capital in this institution for her own exclusive benefit; not for the cause of education merely, except so far as its advancement would tend to promote her political and pecuniary interests. She invests her property and funds that they may be em*735ployed through this organized channel to produce a great resort to the city, of students of law, of medicine, and of the arts and sciences generally, there to spend their money for instruction, and for the necessaries and luxuries of life, and thus to increase the population and wealth of the community of Louisville. And the amendments to the charter of the university were asked for and accepted by the party who furnished the whole capital stock of the concern, for her own exclusive benefit, and from no motives of charity, and for no mere charitable purpose whatever.

Incorporated institutions may be, and are often established and founded upon private capital, and owned by private persons, to make profit by furnishing education to the youth of the country for full compensation, by furnishing medicine, medical attendance, and advice, together with board and maintenance to the sick, for adequate compensation; or by receiving, supporting, and treating medicinally, maniacs, lunatics, and insane persons for pay. These institutions are called colleges, hospitals, asylums, infirmaries, and the like; yet neither their names nor the business in which they may be engaged, would necessarily make them charitable institutions or eleemosynary corporations, though they be private. They may be and frequently are mere money making contrivances of those furnishing the capital upon which they are founded, to derive gain, by the sale of education, board, and maintenance, and medical assistance, &c. So with respect to the University of Louisville; if it is a private corporation, then it is obvious that Louisville is the private owner of it, as she furnished the whole capital on which it was founded, to promote her own interest by the sale of education; and the trustees or managers of all such institutions are the mere agents of the founders; and if they have themselves furnished no part of the'capital, and have no personal interest whatever, they have no legal ground of objection to the action of the real beneficiaries, in procuring amendments to their *736charter, by which other trustees may be selected to govern their institution.

Corporate colleges, hospitals, asylums, &c., therefore may or may not be charitable institutions ; and whether they be so or not is to be collected from the provision of their several charters, and the terms upon which their funds and property may have been furnished for their foundation. If they are private and eleemosynary in their character, then it is granted that the trustees represent the founders of the charity, and that as their assignees they may rightfully claim the protection of the institution as against legislative infractions of the charter. If they be not charitable institutions, but mere instruments by which to make gain and profit for the contributors of the capital, in such case they may have their charters altered and amended at their discretion, with or without the consent of their trustees, if they are not also contributors ; and as before remarked, and assumed, such corporate institutions may also be either public or private.

It is said in the opinion of the court in the Dartmouth college case, as follows: “That education is an object of national concern, and a proper subject of legislation, all admit. That there may be an institution founded by government, and placed entirely under its immediate control, the officers of which would be public officers, amenable exclusively to government, none will deny.”

Now it would seem that to class the Louisville University as a public corporation is a matter of necessity and that it cannot be otherwise classed, reasonably, because its business to educate youth is one of “joublic concern;'1'1 the local public of Louisville got it up, and furnished its whole endowment or capital; it was chartered and endowed to promote the exclusive interest of the public community of Louisville, and it was chartered by the general public of the State, to assist the suborate public authorities of Louisville in the administration of the public local government of *737the city, in respect to carrying on a system ot public instruction under the general supervision of the public officers of the city, and it does not seem to possess any of the real features or characteristics of a private corporation or charitable institution.

The case of the Trustees of New Gloucester vs. Bradbury, 2 Fairfield, (M. R.) 118, and of Allen vs. McKean, 1 Sumner's R. 296, are mainly relied upon by defendants as authority in support of the assumption that the University of Louisville is a private corporation, and that its charter is not amendable or repealable by the State Legislature. In the former case, though very similar to this in many respects, yet it seems it was expressly provided in the charter of that institution “that it should never be in the power of the town to alter or alienate the appropriation of the fund.” This was of course a condition upon which the incorporating act was passed. It seems, also, that in the act of separation of Maine from the State of Massachusetts it was provided that “all grants of lands, franchises, immunities, corporate or other rights, &c., which have been, or maybe made by the said commonwealth before the separation, * * shall continue in force,” &c.; and that this provision composed a part and was embodied in the constitution of the State of Maine. Therefore as the charter of the new Gloucester educational institution, granted by Massachusetts, was made inviolable by an express provision of the constitution of the State of Maine, the question as to its character, whether public or private, did not necessarily arise, and its decision was not required, to arrive to the determination that the laws amending that charter were unconstitutional. - And it seems moreover that the court in that case took a very superficial and somewhat inaccurate view of the opinion of the Supreme Court in the Dartmouth College case, and of the principles therein decided.

In the case of Allen vs. McKean, 1 Sumner, 276, the Bowdoin College was pronounced to be a private corporation, although its.fundshad been derived gen*738erally from the bounty of the government, upon the ground that it was expressly chartered, as a private institution of charity, and being private, its nature could not be changed, so as to become public and be feubject to public control, because it had received the patronage of the State, inasmuch as if private in its origin it must so continue; and it is not necessarily rendered public because it has received its corporate charter from the government. In the opinion last referred to, the two most material points are assumed as collected from the charter: 1. That the college was incorporated as a private institution, eleemosynary in its nature. 2. That the endowment by the government was a mere charitable and absolute donation. Neither of these points can be admitted to exist in this case. The University of Louisville was not expressly created as a private eleemosynary corporation, nor was the endowment made by the city of Louisville provided as amere bounty for charitable purposes.

It may, perhaps, with propriety be admitted that a chartered institution of learning may have been created for the furtherance of objects of public concern, power and duty, and provided with public funds exclusively for its suppoi't, and yet at the saín estime it may be made pi’ivate by the express px-ovisions of its charter, axxd thus be exempt from the i-ule applicable to public coi’porations, and be placed beyond legislative control, because so expressly pi’ovided, and because the foundation, though given by the State, has been granted absolutely and without reserve or condition to the corporation to be managed and employed, not as a public but as a private fund. But if the charter be issued by the State, to create an institution for public purposes, and upon a foundation in the first instance exclusively provided by the State at large, or by any of its subordinate local public agents and instruments of government, such as municipal coi’porations, such institution surely would be subject *739to the joint public control of the State that chartered and the municipality which founded it, (always saving private rights and vested interests.) unless otherwise expressly provided by the charter itself.

To give authority to alter or repeal the charter of a private company, it is necessary that the charter itself should so provide. On the other hand, If from its creation, purposes, and endowment, the corporation be public, it cannot have the inviolable sanctity belonging to those which are private, or be exempt from Legislative control, unless also by express provision of its charter such private sanctity is given to it, and such control is expressly renounced. The charter of the Louisville University contains no such provisions; the foundation Is public and conditional; the property composing it to be employed according to the terms and trusts of the investment as contained in the articles of subscription, to-wit: the deeds to the institute and to the university, and the whole property to revert to the city in the event the university shall be discontinued.

The charter of the Bowdoin College was also placed on the footing of a private corporation, by the articles of separation between the States of Massachusetts and Maine, which as before observed, were incorporated into the constitution of the latter State, and which provided that “the president and trustees and the overseers of said college shall have, hold, and enjoy their powers and privileges in all respects, so that the same shall not be subject to be altered, limited, annulled, or restrained, except by judicial process, according to the principles of law.” So that the Maine Legislature had manifestly no authority to intermeddle with the charter of the college granted by Massachusetts, unless with the consent of the State of Massachusetts first had and obtained. She had not consented as was decided in that case, and if not, it was not at all necessary in this, any more than in the New Gloucester school-fund case, to fix the *740character of the corporation as private, in order to shield it from the innovations attempted by the Legislature of the State of Maine. Neither of the cases last cited can therefore be recognized as sufficient authority to control my opinion as a member of this court, as to the character of the charter'of the Louisville University, or as to the validity of the amendments thereto contained in the city charter.

The opinion of the Supreme Court of Alabama, pronounced in the case of the University of Alabama vs. Winston, 5 Stewart and Porter, 7, are in support of the views entertained by me, as expressed in this dissenting opinion, both as to the true character of the corporation, and the public control over it. (See also Angell & Aimes on Corporations, page 9, sec. 14, page 27, sec. 31, page 31, sec. 32, page 32, sec. 34.)

There are in the legislation of this State, and doubtless of the other States of the Union, numerous instances of legislative enactments amendatory to the charters of public educational corporations, the validity of which has not been questioned, and of which no complaintshavebeen made, for the obvious reason, doubtless, that the legislative authority over such institutions has not hitherto been doubted in this State. (See 2 Litt. Laws, 107, 108, 208, 234, 240, 378, 389; 3 Litt. Laws, 206, 255, 277, 279, 409.) By an act of 17S8 the Legislature united and merged two institutions, the Transylvania Seminary and the Kentucky Academy, into one, and named it the Transylvania University, and appointed an entire new board of trustees, to whom the other two institutions were surrendered, with their rights and obligations, assuming that this was done upon the application of a majority of the trustees of the seminary and academy.

By an act of assembly passed 4th of December, 1800, eight new trustees were appointed for the Jefferson Seminary of learning clothed with full powers as such, without the consent of the existing trustees for aught that appears in the act.

*741By an act passed 18th of December, 1804, upon assuming that the former trustees had forfeited their offices as such, twelve, new trustees are appointed, and clothed with full powers to take charge of the Jefferson Academy.

By an act approved 19th of December, 1805, it is declared that the former trustees, appointed under the “act establishing the Franklin Academy,” had forfeited their powers by non-uses, and nine new trustees are appointed in their place, and clothed with their powers, for all that appears, without their consent. . -

By an act passed 21st of December, 1805, various radical alterations and amendments were made to acts incorporating the Shelbyville, Newton, and Logan Academies, and other institutions of learning in the State, including the Kentucky Seminary, involving the increase and diminution of the number of the trustees, the removal of some and substitution of others in their places, and the abridgement or enlargement of their powers, &c., all apparently at the discretion of the Legislature.

By an act approved 27th of December, 1808, the Legislature, assuming that a majority of the trustees had so agreed, unite the Newton Academy and Logan Seminary into one institution, appoint a new set of trustees with full powers, and create án entire new corporate institution, and vest in it all the rights, immunities, funds, and property which had previously belonged to both of the others thus merged into it. These and other acts which might be referred to, prove that in Kentucky at least the legislative power to alter, amend, or repeal the charters of public institutions of learning has been freely exercised, and hitherto never questioned, and in my judgment it should not now be questioned for the first time; and perhaps had it not been that the interesting'questions presented in this case were expressly submitted for adjudication by the tenth section of the thirteenth article of- the city charter, that power would not have *742been questioned by the gentlemen who are defendants in this proceeding. For the reasons given, I am constrained to differ in opinion from the majority of the court.

The opinion in this case was delivered on the 4th day of July, 1854, but did not come to the hands oí the Reporter until after the publication of the 14th volume of Reports.