Statement of the case.

there given to them; and that the defendants justified the proposed action, under the supplement of 1869; that the said scholarship certificates constituted subsisting contracts between the complainants and the trustees of Jefferson College, in Canonsburg, &c., entitling them to have the granted tuition, &c., at that place, in the college there; and that if said acts of 1865 and 1869 were to have effect, they would be irreparably injured, and the contracts impaired; that said acts of 1865 and 1869 were invalid and unconstitutional, because impairing the obligations of subsisting contracts; and therefore repugnant to the 10th section of the first article of the Constitution of the United States, which declares that no State shall pass any law "impairing the obligation of contracts."

The prayer of the bill accordingly was:

1. That said acts of 1865 and 1869 be declared null and void, as repugnant to the said prohibitions, in that they undertook to change the location of the said college, its classes, buildings, and property, from Canonsburg to Washington, or elsewhere.

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2. For injunction against making such change or removal. The case came up on bill and answer. There was no dispute about facts. The question was the validity of the 'supplemental " act of 1869; the question, namely, whether the contract of scholarships between the complainants and others and Jefferson College, did not interpose a constitu tional barrier to any legislative grant of authority to the trustees of the college to surrender its former charter and accept a new one, by which the college was eventually removed from Canonsburg to Washington, in the same county.

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At the same time was filed in the same court another bill; one by "the trustees of Jefferson College in Canonsburg, in the county of Washington" (the old corporation of 1802), against Washington and Jefferson College" (the corporation of 1865), setting out their old charter of 1802, gifts and donations to carry it out, and specially $5000 given, bequeathed by benevolent persons to the complainants as a permanent fund, to be kept separate from other funds, for educating

Argument for the holders of the scholarships.

poor and pious young men; the scholarships, &c., all, much as in the preceding case.

There was also filed a third bill by five persons, "members of the boards of trustees of Washington and Jefferson." Their complaint being more especially of the supplement of 1869, and of its impairing the obligation of the contracts raised by the act of 1865. All three bills originated apparently in one view, and had apparently one purpose, the different forms of effort being resorted to, the one in aid of the other; and so that if one form of proceeding was found open to fatal objection, one or both of the others might be resorted to with better prospect of success.

The Supreme Court of Pennsylvania, after a full consideration of the case (Thompson, C. J., delivering its judgment), dismissed all the bills, holding in effect:

1st. That the legislation complained of did not, in point of fact, infringe the said contracts.

28. That even if the contracts were so affected by the legislation, yet their obligation could not be said to be impaired in a legal sense, because the acceptance of the legis lation by the trustees of Jefferson College concluded the complainants; and, also, 3d, because the acts of Assembly in question were passed by the legislature of Pennsylvania, in the exercise of a power so to do, reserved (as to the act of 1865) in the original charter of Jefferson College and (as to the act of 1869) given by the amended constitution of Pennylvania.

Messrs. G. W. Woodward, G. Shiras, J. Veech, and B. Crumine, for the plaintiffs in error:

The three cases may be here, as they have been elsewhere, treated as one. We proceed to discuss the principles meant to be presented, without embarrassing ourselves or the court with that which is the mere accident, outwork, and mechanism of the cases.

And we select as the case which best presents our views, the first one; that one in which the bill is filed by the holders of the scholarships.

Argument for the holders of the scholarships.

By clear and necessary implication arising from the whole transaction, and visible in the certificate given in the matter, Canonsburg is recognized as the place where the education was to be given. The title of the original act is, "An act for the establishment of a college at Canonsburg." The preamble recited that "the establishment of a college at Canonsburg would promote the public good." "The trustees and their successors, it is enacted, shall forever thereafter be one body politic and corporate, with perpetual succession, by the name of 'The Trustees of Jefferson College, in Canonsburg.' Pursuant to this charter an institution had been established and had flourished for half a century, when the trustees devised a plan of endowment, and induced the complainants to become contributors thereto by the purchase of scholarships.

Of the 1500 scholarships sold, several hundred were bought and are held by residents of Canonsburg. All the 114 complainants are of this class. What did the contributors expect at the time the contracts were made? What did the trustees know that they expected? And what did the trustees themselves intend? What, in short, did all parties mean? Certainly to get the tuition from Jefferson College, at Canonsburg; from that college, permanently fixed there. A college is not an ambulatory institution, but a stationary one.

It is unimportant that the place of performance may have been but implied. Implied contracts are as much within the protection of the Constitution as express ones.

Now the place of performance in such contracts as contracts for education at a particular place is an essential part of the contract. In this case the subscriptions were largely by the people of Canonsburg, who wished to have their sons instructed without the cost and without that exposure to perils which come from sending them away from home. When you compel them to send their sons away the contract is worthless.

In Daily v. The Genesee College,* in the Supreme Court of

*Not yet in the published reports.

Argument for the holders of the scholarships.

New York, Genesee College had been incorporated in 1849, and buildings erected at Liina, Livingston County, New York; scholarships were issued by the institution, and subscribed and paid for by the plaintiffs; subsequently, under an offer of $200,000 from the Conference of the Methodist Church, at Syracuse, New York, the trustees of the college resolved to abandon Lima and remove the college to Syracuse, and applied for an act of Assembly to authorize the removal. At that juncture a bill was filed by some of the scholarship holders, and an injunction asked for and obtained, restraining the defendants from the removal of the college. The ground upon which the injunction was put was, that in the case of a scholarship issued by a college having an established location, the place where the tuition is to be given is an essential part of the contract. Says Johnson, J., in his opinion granting the injunction:

"It is plain that neither party had any other place in contemplation, and that must of necessity have been the place agreed upon, as definitely and certainly as though it had been specified in the most exact and unequivocal terms in the certifi cate. The place of performance, in this as in all other contracts, is a material part of such contract, and the obligation can neither be satisfied nor discharged by tender of performance at another place."

Suppose the trustees of Jefferson College, without having procured any legislative authority, had refused to furnish tuition at Canonsburg to the holders of scholarships, but had tendered performance in Massachusetts, Louisiana, or California, would not such conduct have been a breach of their contract? If so, is not the same conduct, when done under guise of legislative authority, equally a breach of contract, if so be that the legislature have no valid power to authorize such a departure from the obvious intent of the contract?

Then, are the holders of the scholarship contracts in any way estopped because of the act of the trustees of Jefferson College in accepting the act of 1865?

The parties to the contract in question are the trustees of

Argument for the holders of the scholarships.

Jefferson College (the grantors), and the subscribers to the plan of endowment (the grantees named in the several scholarships). Now it is a strange state of the law, if one of the said parties, the trustees, can, by a voluntary dissolutionone not brought about by legal proceedings to forfeit for some abuse, but brought about by their own act of procuring and accepting an act of Assembly dissolving the corporationescape from the obligations of their contracts.

Admitting the general rule to be that a private corporation may surrender its franchises, yet it cannot be successfully invoked by the defendants, because the trustees of Jefferson College were mere trustees, and not owners of the college fund; their powers extended to its preservation and proper application, but not to consenting to its withdrawal from the existing beneficiaries. This corporation is an eleemosynary one; and the difference between this class of corporations and corporations for gain is obvious and well settled. The latter to a large degree may do what they please. They have no interests to consult but those of their corporators. Those interests will prevent their abusing their trusts. But eleemosynary corporations are trustees of a sacred trust. For the most part they are managing the property of the departed. They are bound to respect in the highest degree the objects and directions declared by their founders and benefactors. They cannot surrender their franchises at pleasure.

The case of State v. Adams is in point. By the charter of "St. Charles College," it was required to be "an institution purely literary, affording instruction in ancient and modern languages, the sciences and liberal arts, and not including or supporting by its funds any department for instruction in systematic or polemic theology." An amend ment of the charter, approved February 6th, 1847, provided that "the concurrence of the Missouri Annual Conference of the Methodist Episcopal Church South," should be requisite in filling all vacancies in the board. Held, that the amendment, by requiring the concurrence in the choice of curators,

* 44 Missouri, 570.