trustee upon his agent in respect to trust property. In either aspect its voice was potential in respect to that which was, under that authority, thereafter done by official or agent. In this view, the land commissioners had no authority to make a limitation in the contract, by which thirty cents an acre and the net proceeds were to pass to the national fund. No subsequent legislation on the part of the state of New York and "no agreement between it and Cornell University as to the possession of these funds can have the effect to relieve the state from its liability as trustee, or place the title to those funds elsewhere than in the state." The uses of the proceeds of the land scrip fund are stamped with the limitation imposed by the original act of Congress. Under the decision of the highest court of the state of New York, and of the United States, the Cornell Endowment Fund was the gift of Mr. Cornell to the university. It was not, therefore, subject to any limitation which might apply to the land scrip fund, and could be used for any of the purposes of the university which the trustees might deem proper.

The issues of this great suit were awaited with much interest by the university world, and by the friends of education throughout the country. The decision deprived the university of the largest single legacy which it had ever received. The manifest purpose of Mrs. Fiske was defeated, and defeated under legal forms. The question naturally arose whether any different presentation of the case on behalf of the university would have secured a different decision. The eminent counsel of the university from the beginning, who had conducted successfully its vast legal interests, was unable at this time to act in its behalf, as he was then a member of the Court of Appeals. Upon the issues raised, the conclusion was perhaps inevitable, but later consideration has raised a doubt whether the case in

Since the de

behalf of the university was adequately presented, and whether the arguments upon which such vast issues were staked were the only ones which might have been urged. According to English law and decisions in the case of an institution deriving its charter from the state, and incapacitated from accepting a bequest by the terms of that charter, it is the state alone that has the right to intervene, and not the heirs-at-law. Such were the decisions in cases occurring under the law of mortmain. The state received that which a corporation could not take. The state alone, in the exercise of its sovereign dignity, can determine whether a franchise issuing from it has been violated. cision of the New York Court of Appeals, the Supreme Courts of the states of Maine and of Maryland have passed upon a similar question, both reviewing the decision in the case of Cornell University, and deciding that the state alone has the right to intervene to test the question whether its law has been violated. The Supreme Court of Maine, in commenting upon this decision of the New York Court of Appeals, states that it stands alone, and that it is the sole legal authority for the position assumed. It held that "the limitation upon this class of corporations is a matter of public policy. As such it is for the state alone to take advantage of its breach if it chooses, or it may waive it; and consequently private parties cannot be permitted to assert against the corporation a violation of the limitation."

The United States Courts have also uniformly held that "restrictions imposed by the charter of the corporation upon the amount of property it may hold cannot be taken advantage of collaterally by private persons, but only by the state which created it."" The corporation may be amenable to the penalty of violating its charter, but individuals cannot call it in question.

The state alone has the right to proceed against it. The state may see fit or not see fit to do so. The state may condone the offense and the legislature may relieve by enlarging its powers.

The New York Court of Appeals has also affirmed in earlier and in more recent decisions, that in estimating the value of the property of a corporation, where there is a limitation in the charter of the amount which the corporation may hold, the market value of the property at the time when it was received must be taken into account, and not the accidental increment of increased value. "If the income exceed the prescribed limit at the time of the grant, it is a question between the corporation and the sovereign power in which individuals have no concern, and of which they cannot avail themselves in any mode against the corporation. The accidental increase in the income of a corporation derived from its vested estates to a point beyond which its charter prescribes, cannot have the effect to divest its title in such estates, or in any portion of them."

Under this view of the law, the property of the university must be estimated at its market value when the title passed from Mr. Cornell to the university. All subsequent increase in value has been accidental, and must be disregarded. The legal bearing of the decisions upon this point was ignored by the counsel for the university, and apparently the oversight was disastrous and involved the loss of this magnificent legacy. Individual opinions of judges who passed adversely upon the questions raised by the counsel for the university have since been cited as stating that their decision would have been otherwise had this question been raised.

One of the results of the decision of the United States Supreme Court was to make the university absolute owner of the Cornell Endowment Fund. The court

held that all profits arising from Mr. Cornell's administration of the land scrip in excess of the market value at the time when it was received were gifts of Mr. Cornell to the university and consequently were free from the restrictions in use imposed by the Land Grant Act itself. This unexpected result makes it possible for the university to use the income of this fund in any manner, and for any purpose, which the needs of the university require. The university had previously regarded the entire income from the sales of the land as subject to the original act of Congress.

CHAPTER XXIII

THE NEW YORK STATE COLLEGE OF AGRICULTURE AT

C

CORNELL UNIVERSITY

ORNELL UNIVERSITY is founded on the Land Grant Act of 1862, the main object of which is "to promote the liberal and practical education of the industrial classes in the several pursuits and professions in life.” This object was to be attained largely by teaching such branches of learning as are related to agriculture and the mechanic arts. That is to say, the "industrial classes" at that time were those who engaged in agricultural and mechanic work. From its inception Cornell University has endeavored to carry out the objects of the Land Grant Act. It has stood for true democratic effort to reach the people in terms of their daily lives. It was the first of the great universities that made a successful effort to place these industrial subjects on an equal academic plane with the traditional parts of the curriculum.

In order to understand fully the significance of the Land Grant Act, one must know the historical development of that remarkable instrument. Education was at first aristocratic rather than democratic. Gradually the subjects that have to do with common-day problems have been forced into the curricula of the universities. The germ of the revolution in this country was planted when Harvard, in 1783, after a long struggle, established a chair of chemistry. This marked a distinct departure in the popularizing of education. Scientific or technical education spread slowly, but its progress