assert their right against the statute that would be, not a valid enactment, but invalid administration. A termination of his office by a repeal of law would not make the appointment of his successor a law-making Act. If a repeal of the College charter would create an official fiduciary vacancy, and leave no one in possession of the legal title of the College property, it would not destroy either the legal or the equitable title, and would not give a legislative character to the act of filling the vacancy, or the act of conveying the property. The right of conveyance, like the rest of the rights which constitute ownership, does not belong to the State, and cannot be exercised by the State as owner, nor by those legislative agents of the State who can convey the State's property, but cannot exercise all rights of ownership over all property of which the State is not the owner.

The rule placing "natural persons and corporations precisely upon the same ground" of general liability to legislative control, is "the only one upon which equal rights and just liabilities and duties can be fairly based."1 A railroad corporation is "put in the same position a natural person would occupy if engaged in the same or like business. Its rights and its privileges in its business of transportation are just what those of a natural person would be under like circumstances; no more, no less."2 This is an application of the equitable principle that the corporate fiction does not operate beyond the purpose of its introduction. It neither increases nor diminishes legislative control of natural persons, their legal titles or equitable interests. The theory that an amendment of the Dartmouth charter, enlarging a minority of the corporation into a majority by an appointment of nine additional members, does not convey any part of the property or fiduciary power, and does not affect the legal title of the trustees or the beneficial interest of the students, because twenty-one trustees are the same imaginary being as the twelve, is an application of the error that subjects corporate property to double taxation. The error is an illimitable expansion of the corporate fiction, subjecting natural persons to an impairment of their contracts and an invasion of their legal titles and beneficial interests.

All the legal advantages of individuality desired for a collective and changing body of twelve trustees could have been bestowed upon them by the Provincial Legislature, as well without as with

1 Thorpe v. R. & B. Railway, 27 Vt. 140, 145.

2 Stone v. F. L. & T. Co., 116 U. S. 307, 329.

resort to the imagination for the creation of a non-natural person. Incorporation was not necessary for their succession, their exemption from personal liability for the payment of judgments, or their unity in litigation and the service of process. As natural persons, under special or general statute, they could have had succession, exemption, and every benefit of corporate personality. The employment of fiction for this purpose neither subjected them to, nor exempted them from, the exercise of legislative power. So far as the question of power is concerned, it is immaterial whether the object of incorporation was accomplished by incorporation or otherwise. The irrelevancy of the fiction was distinctly asserted by the two members of this court who decided the case (the docket shows that Judge Woodbury, who was one of the nine new trustees, did not sit), when they declared it to be their duty, in determining the rights in controversy, to "look beyond that intangible creature of the law, the corporation, which in form possesses them, to the individuals, and to the public, to whom in reality they belong, and who alone can be injured by a violation of them." The only rights in controversy were the ownership and control of the College property.

Vague and exaggerated ideas were (and still are) entertained of the utility and necessity of incorporation under a general or special law, and of the damage resulting from a repeal of that law. Chief-Justice Marshall said: 2 "In most eleemosynary institutions, the object would be difficult, perhaps unattainable, without the aid of a charter of incorporation. Charitable or publicspirited individuals, desirous of making permanent appropriations for charitable or other useful purposes, find it impossible to effect their design securely and certainly without an incorporating Act. . . . An artificial, immortal being was created by the Crown." An intangible, invisible being, possessing no mental, moral, or physical capacity, may be a convenient figure of speech; but the true view of legal principles is to be found in the region of realities, where the college corporation is no other person or creature than the consecutive body of twelve men, who were not created by the Crown, and who could hold and manage the College property without a charter, in the exercise of the common-law powers of trustees

1 I N. H. 120.

2 Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 637, 642.

8 Case of Sutton's Hospital, 10 Rep. 326: Tipling v. Pexall, 2 Bulstr. 233; Bissell v. M. Co., 22 N. Y. 258, 266.

appointed by deeds or wills. The charter was an amendment of the common law, - an act of special legislation, restricted in its operation to a single trust. The statute of limited partnerships 1 is a general act of legislation. It alters the common law in relation to special partners. Being mere legislation, it is repealable, as it would be if it were a special Act applicable to one firm only. In what respect, of any importance in the College case, does the Dartmouth charter differ from the statutory regulation of the rights and liabilities of a special partner?

The founders of Dartmouth College desired to put some of their private property in the hands of twelve agents, called trustees, who should be bound to perpetuate the succession and identity of their agency by exercising their elective power of filling vacancies, and bound to apply the trust-fund according to the donors' lawful directions. It is useful to consider what material part of the plan could not have been as well accomplished by wills or trust-deeds containing the essential provisions of the charter, without an incorporation of the agents; what alteration was made by the sounding phrases of the royal grant; for what purpose was a corporate fiction necessary; what was gained by its acceptance; and what harm would be done by a valid repeal of the charter, terminating the existence of the mythical being created by the Crown. What difference is there in the effect of the charter or the effect of its repeal, whether the power of perpetuating the fiduciary body by appointment is in that body, as in the case of the College and the case of an ordinary academy,2 or in other ecclesiastical and political bodies, as in the case of Elliot Hospital, or in a judicial tribunal, as in a multitude of other cases? These are vital questions. They require an analysis of the charter, and an understanding of the distinction between its repealable law and its irrepealable contract. They lead the inquirer away from the fanciful and false theory of an implied governmental promise that the Legislature shall not exercise their power of repealing the charter law, to the express charter stipulations of donors intrusting the legal title, possession, and management of property to twelve trustees, and the agreement of the successive donees (lawfully appointed and accepting the trust fund and its accompanying agency), remain1 General Laws of N. H., c. 118.

2 Sanderson White, 18 Pick. 328, 329, 336.

8 Chandler v. Batchelder, 61 N. H. 370, 371; Laws, 1881, c. 178.

Story, Equity, §§ 1060, 1287; Adams, Equity, 36, 61; Schouler, petitioner, 134 Mass. 426; School-District v. Concord, 64 N. H. 235.

ing to be performed as long as a remnant of the property can be found.

A valid repeal of the charter would show how much of it is law, made in 1769 by the king, and how much of it is evidence of contracts made at different times by the donors and donees of the property. The charter conveyed no property from the king, and its rescission would annul no conveyance or gift of property and destroy no title. After a legislative revocation, judicial forfeiture, or voluntary surrender of the corporate powers and existence of The Orphans' Home,1 The Franklin Street Society,2 and The Amoskeag Manufacturing Company, their work, continued by unincorporated trustees or partners on the same premises, would be as lawful as if no corporate franchise had ever been granted. The educational substance of the College is no more destructible or pervertible than it would be if no corporate franchise had been accepted by the trustees.

If the charter had conveyed to the trustees an acre of the king's land, the property thus conveyed would have ceased to be the king's, and would not have passed from him to the State; and the State's conveyance of it, without payment of its value, and without legal process, like a conveyance of any other property not owned by the State, would not be an enactment of law. As holders of the legal title and representatives of the equitable proprietors, the trustees could sell the land, because a sale would be an exercise of the owner's right, and would not be legislation. For the same reason, with or without a repeal of the charter, the State could not give the land to others, or exercise the owners' right of sale. The trust fund passed to the trustees from the donors, both parties assenting to the charter as evidence of a contract executed on the part of the donors by their conveyance of title and powers, but executory on the part of the donees during the existence of the fund. The evidence and obligation of this contract would remain unimpaired after the repeal of all the law made by the grant of the charter, and after the extinction of the imaginary being fabricated by the trustees' acceptance of that grant.

If the College trust had been established in 1769 by the private contract of a deed without a charter, and the property had been left, by death or resignation, in 1869, without a manager, the trust would have been sustained by an appointment of trustees. The

1 Laws of N. H., 1871, C 98.

2 60 N. H. 342.

law would have made the appointment on grounds of a strictly judicial nature; for a strictly legal cause, stated in writing with legal certainty, made a public record, and maintainable on demurrer; for the sole purpose of accomplishing the donors' design, proved by competent evidence; and after all interested parties had an opportunity for a fair trial, to which they would not be entitled in law-making procedure. The law would have done this through the agency and by the decree of a tribunal liable (as the Legislature is not) to impeachment for partiality, corruption, or any intended wrong in the discharge of the duty of carrying into effect the legally proved intention of the donors. If every vacancy in the unincorporated board of trustees had been filled by the surviving members, for a hundred years, in execution of the contract of 1769, and the board had unanimously accepted a charter in 1869, their mere incorporation would not have changed the school or the fund. Their contract, made by the grantor's delivery and the grantees' acceptance of the deed and property, would have remained to be perpetually performed by the grantees. Their change from an unincorporated to an incorporated body would not have affected the continuous fiduciary powers conveyed with the property by its grantors to its grantees, or the grantees' continuous duty of holding and applying the property in performance of an obligation as contractual as that of a devisee who accepts land charged, by his testator's order, with the payment of a legacy.1 A return from the corporate to the unincorporate form would leave the substance of the trust unchanged. After a repeal of the supposed charter of 1869, as well as before its enactment, the use of the names of twelve trustees in conveyances, writs, and judgments would not be, for them, a serious disadvantage; and some other law than an Act of Incorporation (which they could refuse to accept) could obviate any public or private inconvenience in the service of process upon them, and relieve them from any personal liability from which they would be exempt under an unconditional charter. By our common law their perpetual succession could be provided for in the original deed, and subsequent gifts to "The Trustees of Dartmouth College" would be equally valid whether the donees were incorporated or not. When a due examination of the subject has shown how much the effect of incorporation and the effect of repeal have been overrated, 1 Pickering v. Pickering, 15 N. H. 281, 290, 297; 43 N. Y. 443. 2 Wait v. Holt, 58 N. H. 467; Hardy v. Bank, 61 N. H. 34, 39.