1. 2 de Tocqueville, A., Democracy in America 114 (Bradley, P. ed. 1957) (1st ed. 1840)Google Scholar.

2. Weisbrod, C., The Boundaries of Utopia (1980)Google Scholar; Campbell, , Dartmouth College as a Civil Liberties Case: The Formation of Constitutional Policy, 70 Ky. L.J. 643 (1981-1982)Google Scholar; Fishman, , The Development of Nonprofit Corporation Law and an Agenda for Reform, 34 Emory L.J. 617 (1985)Google Scholar; Seavoy, , The Public Service Origins of the Business Corporation, 52 Bus. Hist. Rev. 30 (1978)CrossRefGoogle Scholar; Miller, H., The Legal Foundations of American Philanthropy, 1776–1844 (1961)Google Scholar; Katz, Sullivan & Beach, , Legal Change and Legal Autonomy: Charitable Trusts in New York, 1777–1893, 3 L. & Hist. Rev. 51 (1985)CrossRefGoogle Scholar; Wyllie, , The Search for an American Law of Charity, 1776–1844, 46 Miss. Valley Hist. Rev. 203 (1959)CrossRefGoogle Scholar; Mensch, , Religion, Revival, and the Ruling Class: A Critical History of Trinity Church, 36 Buffalo L. Rev. 427 (1987)Google Scholar.

3. Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819); Pierce v. Society of Sisters, 268 U.S. 510 (1925).

4. U.S. Const, art. I §10 (“No State shall… pass any… Law impairing the obligation of Contracts….”). On the federal contracts clause generally, see Wright, B., The Contract Clause of The Constitution (1938)Google Scholar; Kainen, , Nineteenth-Century Interpretation of the Federal Contract Clause: The Transformation from Vested to Substantive Rights against the State, 31 Buffalo L. Rev. 381 (1982)Google Scholar; McCurdy, , Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 61 J. Am. Hist. 970 (1975)CrossRefGoogle Scholar; Siegel, , Understanding the Nineteenth-Century Contract Clause: The Role of the Property-Privilege Distinction and “Takings” Clause Jurisprudence, 60 S. Cal. L. Rev. 1 (1986)Google Scholar.

5. Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890); Berea College v. Kentucky, 211 U.S. 45 (1908).

6. 1 Blackstone, W., Commentaries on the Laws of England 456 (Oxford 1765 and photo reprint 1979)Google Scholar.

7. In re Mt. Sinai Hospital, 250 N.Y. 103, 111, 164 N.E. 871, 874 (1928).

8. The statutes are found in the Massachusetts session laws for the January-March, 1832, session, Laws of the Commonwealth of Massachusetts (1832)Google Scholar.

9. Kett, J., The Formation of the Medical Profession: the Role of Institutions, 1780–1860, at 75–77 (1968)Google Scholar; Jorgenson, L., The State and the Non-Public School, 1825–1925, at 86–87 (1987)Google Scholar. The charter was finally granted at the end of the Civil War, with a proviso that the granting of the charter was not a pledge of pecuniary aid to the college from the state, id. at 112; Act of March 24, 1865, ch. 99, §6, 1865 Mass. Laws 500, 501.

10. Act of April 6, 1791, ch. 27, 1791 Pa. Laws 40.

11. Zeiter, , Foreword, 15 Purdon's Pennsylvania Statutes Annotated 53, 72–76 (1967)Google Scholar.

12. Act of April 6, 1784, ch. 18, 1784 N.Y. Laws 613; Act of April 3, 1787, ch. 82, 1787 N.Y. Laws 524; Act of April 1, 1796, ch. 43, 1796 N.Y. Laws 695; Act of April 2, 1806, ch. 138, 1806 N.Y. Laws 437; Seavoy, R., The Origins of the American Business Corporation, 1784–1855, at 9–11, 14–15, 20–21, 24–25 (1982)Google Scholar; J. Kett, supra note 9, at 16–17.

13. N.Y. Const, of 1846, art. VIII, § 1, in 5 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 2669 (Thorpe, F. ed. 1909)Google Scholar [hereinafter Constitutions]; Act of April 12, 1848, ch. 319, 1848 N.Y. Laws 447. The New York courts treated the general incorporation act of 1848 as the expression of a legislative policy to regulate all charitable organizations through the corporate form. The courts thus disallowed many bequests to unincorporated charitable trusts until the legislature reversed the policy by legislation in 1893. Katz, Sullivan & Beach, supra note 2, at 70–87.

14. In re Mt. Sinai Hospital, 250 N.Y. 103, 111, 164 N.E. 871, 874 (1928). See also, Katz, Sullivan & Beach, supra note 2, at 81 & n.147.

15. See, generally, Zollman, C., American Church Law (1933)Google Scholar; Kauper, & Ellis, , Religious Corporations and the Law 71 Mich. L. Rev. 1500 (1973)CrossRefGoogle Scholar. According to Kauper and Ellis, “The history of ecclesiastical corporations in the United States is a relatively unknown and unexplored area of law.” Id. at 1503. For a bibliography, see id. at 1503 n.6.

16. President James Madison, Veto Message, Feb. 21, 1811, 2 A Compilation of The Messages and Papers of the Presidents 474, 475 (J. Richardson comp. 1897)Google Scholar. I am indebted to Father Robert B. Kirtland, Adjunct Professor at The University of Toledo College of Law, for this reference.

17. Mo. Const. of 1820, art. XIII, §5, in 4 Constitutions, supra note 13, at 2163. Subsequent nineteenth-century Missouri constitutions provided that the legislature could enact general incorporation laws to enable churches or religious societies to incorporate solely to hold real estate for religious purposes. Mo. Const, of 1865, art. 1, §12, in id. at 2192; Mo. Const, of 1875, art. II, §8, in id. at 2230. Va. Const, of 1850, art. IV, §15, in id. at 3839. See also, Va. Const, of 1830, art. III, §11, in id. at 3824 (”[T]he legislature shall not… confer any peculiar privileges or advantages on any one sect or denomination….”). Va. Const, of 1864, art. IV, §30, in id. at 3862;Va. Const, of 1870, art. V, §17, in id. at 3886; Va. Const, of 1902, art. IV, §59, in id. at 3915; W. Va. Const, of 1862, art. XI, §2 in id. at 4031.

18. Terrett v. Taylor, 13 U.S. (9 Cr.) 43, 49 (1815).

19. Act of April 6, 1784, ch. 18, 1784 N.Y. Laws 613, 613.

20. Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 668 (1819) (Story, J., concurring); C. Zollman, supra note 15, at §§91–96.

21. Pa. Const, of 1776, Declaration of Rights, §2, in 5 Constitutions, supra note 13, at 3082; Act of Sept. 13, 1788, ch. 157, §2, 1788 Pa. Laws 457.

22. The following paragraph is derived principally from Dignan, P., A History of the Legal Incorporation of Catholic Church Property in the United States (1784–1932) (1935)Google Scholar; McAvoy, T., A History of the Catholic Church in the United States (1969)Google Scholar; C. Zollman, supra note 15, at §§97–101; Kauper & Ellis, supra note 15, at 1500–02, 1520–27.

23. P. Dignan, supra note 22, at 46–66, 245–68. New England allowed certain officers of protestant churches to be corporations sole, C. Zollman supra note 15, at §§97–99. In Virginia, id. at §100, and Vermont, Kauper & Ellis, supra note 15, at 1508, and perhaps in other states where the Episcopal church was established, certain officers of that church were corporations sole.

24. Act of Sept. 13, 1788, ch. 157, §3, 1788 Pa. Laws 457. In 1821, the legislature authorized the incorporated trustees of St. Mary's Church to amend their charter through the processes established for amendment under the general incorporation law. Act of March 20, 1821, ch. 63, 1821 Pa. Laws 93. This required among other things application to the Pennsylvania Supreme Court for a certificate that the proposed amendment was “lawful.” The application was rejected, In re Corporation of St. Mary's Church, 7 Serg. & Rawle 517 (Pa. Sup. Ct. 1822) (finding unanimously that the proposed charter amendment had not been validly adopted, and stating, one of the three judges dissenting, that the substance of the amendment was not lawful).

25. Act of April 6, 1791, ch. 27, 1791 Pa. Laws 40.

26. Act of April 26, 1855, ch. 347, §§6, 7, 1855 Pa. Laws 330. According to Billington, a number of states, following the lead of New York, passed similar statutes, but they were never enforced. Billington, R., The Protestant Crusade, 1800–1860, at 298–300 (1938)Google Scholar.

27. Act of May 20, 1913, ch. 168, §1, 1913 Pa. Laws 242–43. The section specifically forbidding the corporation sole was repealed, id. at §2, 1913 Pa. Laws 243–44, but it is difficult to see this action as having anything more than symbolic significance in the absence of legislation specifically allowing the corporation sole. P. Dignan, supra note 22, at 262.

28. Krauczunas v. Hoban, 221 Pa. 213, 70 A. 740 (1908); Mazarka v. Krauczunas, 229 Pa. 47, 77 A. 1102 (1910); Mazaika v. Krauczunas, 233 Pa. 138, 81 A. 938 (1911); Novickas v. Krauczunas, 240 Pa. 248, 87 A. 686 (1913); Novicky v. Krauczunas, 245 Pa. 86, 91 A. 657 (1914); Kauper & Ellis, supra note 15, at 1524–26.

29. The background of the Dartmouth College case as a controversy involving nonprofit corporations generally and educational institutions in particular is examined in Campbell, supra note 2, from which the following discussion is extrapolated, and which cites the extensive literature on the case.

30. 17 U.S. (4 Wheat.) 518 (1819), at 629–30, 632–34, 644, 650–54.

31. Id. at 629–30, 633–34. Marshall may have had in mind Jefferson's University of Virginia, which was chartered as a public institution about a week before Marshall delivered the Dartmouth College decision. Campbell, supra note 2, at 669–70.

32. 17 U.S. (4 Wheat.) at 668–69, 708. Marshall only hinted at the possibility of an effective reservation clause: “There can be no reason for implying in a charter… a power [to alter or amend] which is not only not expressed, but is in direct contradiction to its express stipulations.” Id. at 638. Several states used reservation clauses in business and nonprofit corporation charters before 1819. Campbell, supra note 2, at 701–03.

33. 1 Kent, J., Commentaries on American Law 392 (New York1826 & photo reprint 1969)Google Scholar.

34. Charter of The Trustees of Union College in the Town of Schenectady, in the State of New York, issued by the Regents of the State of New York, Feb. 25, 1795, reprinted in Raymond, A.V.V., Union University 518–20 (1907)Google Scholar; Act of March 30, 1805, ch. 62, 1805 N.Y. Laws 215, 220; Hislop, C., Eliphalet Nott 83–91 (1971)Google Scholar; 1 A.V.V. Raymond, supra, at 521–22 (the amended Union College charter, Mar. 29, 1806).

35. 1 F. Cas. 489 (C.C.D. Me. 1833) (No. 229).

36. Act of June 24, 1794, ch. 16, 1794 Mass. Acts 419, at 420, 423. See, generally, Hatch, L., The History of Bowdoin College (1927)Google Scholar.

37. Act of June 19, 1819, ch. 161, §§7, 9, 1819 Mass. Acts 252, 253.

38. Me. Const, of 1819, art. VIII, in 2 Constitutions, supra note 13, at 166.

39. L. Hatch, supra note 36, at 45.

40. Resolution of June 12, 1820, ch. 4, 182 Mass. Acts 243; Act of June 16, 1820, ch. 7, 1820 Me. Laws 45; L. Hatch, supra note 36, at 45.

41. Act of March 31, 1831, ch. 517, 1831 Me. Laws 1310; L. Hatch, supra note 36, at 75–77.

42. Allen v. McKean, 1 F. Cas. 489, 498 (C.C.D. Me. 1833) (No. 229).

43. Id. at 496–502.

44. Board of Trustees for the Vincennes University v. Indiana, 55 U.S. (14 How.) 268, 277 (1954). See 1 Clark, T., Indiana University 191–97 (1970)Google Scholar, (discussing case).

45. City of Louisville v. President and Trustees of the University of Louisville, 54 Ky. (15 B. Mon.) 642 (1855); Kentucky Writer's Project, A Centennial History of the University of Louisville 1–57 (1939)Google Scholar (American Guide Series) (discussing founding and early history of University of Louisville); D. Cox, A History of the University of Louisville 7–36 (unpublished Ph.D. dissertation, University of Kentucky, 1984; microfilm); Cox, , How Old Is the University of Louisville?, 81 Reg. Ky. Hist. Soc. 59 (1983)Google Scholar.

46. Board of Education v. Bakewell, 122 Ill. 339, 10 N.E. 378 (1887). In an earlier case involving a mechanic's lien, the Board and University had been declared private. Board of Education v. Greenbaum & Sons, 39 Ill. 609 (1864). See also, Boehn v. Hertz, 182 Ill. 154, 54 N.E. 973 (1899).

47. Trustees of New Gloucester School Fund v. Bradbury, 11 Me. 118 (1834); Inhabitants of Yarmouth v. Inhabitants of North Yarmouth, 34 Me. 411 (1852). See also, Trustees of Belfast Academy v. Salmond, 11 Me. 109 (1833) (town can take academy land for road on provision of just compensation). State v. Springfield Township, 6 Ind. 412 (1854); Edwards v. Jagers, 19 Ind. 407 (1862); Graded School District No. 2 v. Trustees of Bracken Academy, 95 Ky. 436, 26 S.W. 8 (1894); Downing v. Indiana State Board of Agriculture, 129 Ind. 443, 28 N.E. 123, 614 (1891).

48. State v. Heyward, 31 S.C.L. (3 Rich.) 389 (1832). The case is discussed in J. Kett, supra note 9, at 59–61. Regents of the University of Maryland v. Williams, 9 G. & J. 365 (Md. 1838). See, Callcott, G., A History of the University of Maryland 16–73 (1966)Google Scholar; J. Kett, supra note 9, at 46–59.

49. Act of Dec. 20, 1823, ch. 27, §35, 1823 S.C. Acts. 75; J. Kett, supra note 9, at 60.

50. Act of Dec. 17, 1831, ch. 12, 1831 S.C. Acts. 33; State v. Heyward, 31 S.C.L. (3 Rich.) 389, 409, 410, 412 (1832). See also, Downing v. Indiana State Board of Agriculture, 129 Ind. 443, 28 N.E. 123, 614 (1891) (regulation abolishing chartered Indiana State Board of Agriculture and transferring its property to newly created board impairs the obligation of contract and takes property without due process of law); Regents of the University of Maryland v. Williams, 9 G. & J. 365 (Md. 1838) (legislative alteration of charter of the Regents of the University of Maryland violates federal contracts clause and state due process clause); Brown v. Hummel, 6 Pa. 86 (1847) (legislative act substituting certain trustees for those existing under charter of Emaus Orphan-house divested existing trustees of rights without trial by due course of law, thereby impairing the state's obligation of contract).

51. 2 J. Kent, supra note 33, at 246. For discussions of case law involving reservation clauses in corporate charters, see B. Wright, supra note 4, at 60, 86, 168–78; McCurdy, supra note 4, at 33–35, 89–96; Stern, , The Limitations of the Reserved Power of a State Under a Reserved Right to Amend or Repeal Charters of Incorporation (pts. 1 & 2), 53 O.S., 44 N.S. Am. L. Reg. 1, 145 (1905)Google Scholar; Note, Power of the State to Alter Corporate Charters, 31 Col. L. Rev. 1163 (1931)CrossRefGoogle Scholar; Note, Extent of Reserved Power to Amend the Charter of a Charitable Corporation, 40 Harv. L. Rev. 891 (1920)Google Scholar.

52. 54 Ky. (15 B. Mon.) 340 (1854).

53. W. James, A History of the Western Baptist Theological Institute, Covington, KY 10, 18–34, 60–61, 72–73 (n.d.; unpublished manuscript; microfilm).

54. Act of Feb. 5, 1840, ch. 205, 1840 Ky. Acts. 129.

55. W. James, supra note 53, at 38–73; Act of Jan. 28, 1848, ch. 138, 1848 Ky. Acts 144.

56. Sage v. Dillard, 54 Ky. (15 B. Mon.) 340, 362–64 (1854).

57. Close v. Glenwood Cemetery, 107 U.S. 466, 476 (1882).

58. Asylum v. New Orleans, 105 U.S. 362 (1881) (reserved power to dissolve corporation did not authorize legislature to repeal tax exemption granted in original charter); Graded School District No. 2 v. Trustees of Bracken Academy, 95 Ky. 436, 26 S.W. 8 (1894) (clause that grant of lands to Academy would be subject to future order of legislature did not authorize legislature to transfer corporate property of Academy to common school); Ohio v. Neff, 52 Ohio St. 375, 40 N.E. 720 (1895) (reservation clause did not authorize abolition of Cincinnati College board of trustees and transfer of all College property to University of Cincinnati); In re Election of Directors of Newark Library Ass'n, 64 N.J.L. 217, 43 A. 435 (1899) (reservation clause did not allow legislature to change method of electing directors of joint stock library corporation). Cf., In re Corporation of St. Mary's Church, 7 Serg. & Rawle 517 (Pa. Sup. Ct. 1822) (general incorporation law authorized lawful charter amendments; proposed charter amendment to eliminate clerical members of board of trustees of Catholic Church unlawful).

59. East Hartford v. Hartford Bridge. Co., 51 U.S. (10 How.) 511 (1850); Newton v. Commissioners, 100 U.S. 548 (1879).

60. Trustees of the University of Alabama v. Winston, 5 Stew. & P. 17 (Ala. 1833); Dart v. Houston, 22 Ga. 502, 535 (1857).

61. E.g., State v. Vicksburg & N.R.R., 51 Miss. 361 (1875); Head v. Curators of the University of the State of Missouri, 47 Mo. 220 (1871), aff'd sub nom. Head v. University, 86 U.S. (19 Wall.) 526 (1874); University of North Carolina v. Maultsby, 43 N.C. (8 Ired. Eq.) 257 (1852); Trustees of Carrick Academy v. Clark, 112 Tenn. 483, 80 S.W. 64 (1903), app. dism'dsub. nom. Osborne v. Clark, 204 U.S. 565 (1907); Lewis v. Whittle, 77 Va. 415 (1883).

62. E.g., Watson Seminary v. County Court, 149 Mo. 57, 50 S.W. 880 (1899); Head v. Curators of the University of the State of Missouri, 47 Mo. 220 (1871), aff'd sub nom. Head v. University, 86 U.S. (19 Wall.) 526 (1874); State ex rel Attorney General v. Knowles, 16 Fla. 577 (1878).

63. Morrill Act, ch. 130, 12 Stat. 503 (1862); Act of Aug. 30, 1890, ch. 841, 26 Stat. 417 (1890).

64. Office of Education, U.S. Dep't of Interior, Bulletin, 1930, No. 9, Survey of Land-Grant Colleges and Universities 17–18 (1930)Google Scholar.

65. President, Etc., of Yale College v. Sanger, 62 F. 177 (C.C.D. Conn. 1894) (Connecticut treasurer enjoined from paying federal land grant funds to which Yale was entitled under a contract with the State to Storrs Agricultural College). See 1 Chittenden, R., History of the Sheffield Scientific School of Yale University 1846–1922, at 90–92, 228–36, 267–73 (1928)Google Scholar. After the injunction, the case went to arbitration, and the panel awarded Yale $154,604.45 in damages. Id. at 272. In re Agricultural Funds, 17 R.I. 815, 21 Atl. 916 (1890) (advisory opinion that Brown University, recipient of Rhode Island's land grant funds under 1862 act, was also entitled to land grant funds under the 1890 act).

66. State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929 (1905); State ex rel. Attorney General v. Knowles, 16 Fla. 577 (1878); Regents of the University of Nebraska v. McConnell, 5 Nebr. 423 (1878); State ex rel. Wyoming Agricultural College v. Irvine, 14 Wyo. 318, 84 Pac. 90 (1905), aff'd 206 U.S. 278 (1907).

67. 7 Cow. 585 (N.Y. Sup. Ct. 1828). See Hartog, H., Public Property and Private Power: the Corporation of the City of New York in American Law, 1730–1870, at 72–81 (1983)Google Scholar.

68. 7 Cow. at 604–05. See also, Regents of the University of Maryland v. Williams, 9 G. & J. 365, 388–91 (Md. 1838) (power to license physicians a police regulation subject to legislative control and not a vested corporate right).

69. E.g., Fertilizing Co. v. Hyde Park, 97 U.S. 659 (1878) (police regulation of transportation of offal through village valid, citing Coates); Stone v. Mississippi, 101 U.S. 814 (1880) (under police power, state can repeal corporate charter authorizing lottery).

70. 47 U.S. (6 How.) 507 (1848).

71. Contributors to the Pennsylvania Hospital v. City of Philadelphia, 245 U.S. 20 (1917).

72. Currie's Adm'rs v. Mut. Assurance Soc'y, 14 Va. (4 Hen. & M.) 315 (1809) (legislature could amend charter of mutual insurance company with consent of corporate authorities); Atkinson v. Mut. Assurance Soc'y, 10 U.S. (6 Cr.) 202 (1810) (same); Korn & Wisemiller v. Mut. Assur. Soc'y 10 U.S. (6 Cr.) 192 (1810) (same); Pennsylvania College Cases, 80 U.S. (13 Wall.) 190 (1872); Bryan v. Board of Education, 151 U.S. 639 (1894); People v. President & Trustees of College of California, 38 Cal. 166 (1869); Park v. Modern Woodmen, 181 Ill. 214, 54 N.E. 932 (1899); O'Phinney v. Trustees of Sheppard and Enoch Pratt Hospital, 88 Md. 633, 42 A. 58 (1898); In re Mt. Sinai Hospital, 250 N.Y. 103, 164 N.E. 871 (1928); In re Corporation of St. Mary's Church, 7 Serg. & Rawle 517, 547–50 (Pa. 1822) (per Gibson, J.).

73. Bryan v. Board of Education, 151 U.S. 639 (1894) (original donor); Park v. Modern Woodmen, 181 Ill. 214, 54 N.E. 932 (1899) (member of benevolent society); In re Mt. Sinai Hospital, 250 N.Y. 103, 164 N.E. 871 (1928) (dues-paying member of charitable corporation); Ewald v. Medical Society, 70 Misc. 615, 128 N.Y.S. 886 (1911) (member of Medical Society); McKee v. Chautauqua Assembly, 130 F. 536 (2d Cir. 1904) (leaseholder); Bailey v. Trustees of Power Street Methodist Episcopal Church, 6 R.I. 491 (1860) (pewholder).

74. Allen v. McKean, 1 F. Cas. 489 (C.C.D. Me. 1833) (No. 229) (college President whose employment contract breached by dismissal by college board of trustees pursuant to charter amendment acquiesced in by board could challenge the amendment); Hascall v. Madison University, 8 Barb. 174 (N.Y. App. Div. 1850) (injunction granted to original donor restraining change of location where donation was pursuant to express contract specifying location).

75. E.g., Pennsylvania College Cases, 80 U.S. (13 Wall.) 190 (1872) (emphasizing practical benefits of consolidating Washington and Jefferson Colleges in one location where the two colleges could not survive separately seven miles from each other). See, generally, Coleman, H., Banners in the Wilderness: Early Years of Washington and Jefferson College (1956)Google Scholar.

76. E.g., Park v. Modern Woodmen, 181 Ill. 214, 54 N.E. 932 (1899) (charter members of benevolent society have no rights which are not common to the other members); In re Mt. Sinai Hospital, 250 N.Y. 103, 164 N.E. 871 (1928) (dues-paying members of charitable corporation cannot challenge charter amendment accepted by existing corporate authorities).

77. E.g., McKee v. Chautauqua Assembly, 130 F. 536 (2d Cir. 1904) (reservation clause allowed legislature to amend charter of Chautauqua Assembly; leaseholder could not object); Jackson v. Walsh, 75 Md. 304, 23 A. 778 (1892) (reservation clause allowed amendment of charter of Maryland College of Agriculture; private stockholders could not object); In re Mt. Sinai Hospital, 250 N.Y, 103, 164 N.E. 871 (1928) (reservation clause allowed legislature to amend charter; member could not object); Bailey v. Trustees of Power Street Methodist Episcopal Church, 6 R.I. 491 (1860) (reservation clause allowed legislature to amend charter; pewholder could not object).

78. Asylum v. New Orleans, 105 U.S. 362 (1881); Home of the Friendless v. Rouse, 75 U.S. (8 Wall). 430 (1869); Washington University v. Rouse, 75 U.S. (8 Wall.) 4391 (1869).

79. Seton Hall College v. Village of South Orange, 242 U.S. 100 (1916); Rector, Church Wardens, and Vestrymen of Christ Church v. County of Philadelphia, 65 U.S. (24 How.) 300 (1860). But see, University v. People, 99 U.S. 309 (1878), in which the Court accepted the Illinois Supreme Court's conclusion that an after-charter legislative tax exemption was a contract, noting also the university's substantial reliance on the tax exemption in the construction of buildings, id. at 321–22.

80. Some cases were decided on grounds of statutory construction. See, e.g.. Jetton v. University of the South, 208 U.S. 489 (1908) (lessees of university land not entitled to tax exemption extending to all university-owned property); Chicago Theological Seminary v. Illinois, 188 U.S. 662 (1903) (court accepts Illinois Supreme Court's construction that charter tax exemption extends only to lands used by seminary for seminary purposes).

81. Close v. Glenwood Cemetery, 107 U.S. 466 (1882).

82. See, e.g., McKee v. Chautauqua Assembly, 130 F. 536, 539 (2d Cir. 1904) (“Diverse views as to [the scope of the legislature's power under a reservation clause] have been entertained by tribunals of different jurisdictions….”); Ohio v. Neff, 52 Ohio St. 375, 406, 40 N.E. 720, 724 (1895) (“The authorities agree in holding that the legislative power of amendment and alteration… reserved in charters, is not absolute, although its boundaries are not yet established.”).

83. Commonwealth v. Bonsall, 3 Whart. 559 (Pa. 1838) (reservation clause allowed legislature to expand number of eligible voters for trustees of public school); Bryan v. Board of Education, 151 U.S. 639 (1894) (reservation clause allowed legislature and corporate authorities to remove college from original location over objections of original donors); McKee v. Chautauqua Assembly, 130 F. 536 (2d Cir. 1904) (reservation clause allowed legislature and corporate authorities to modify charter of literacy society over objections of member-leaseholder); Webster v. Cambridge Female Seminary, 78 Md. 193, 28 A. 25 (1893) (reservation clause allowed legislature to authorize expansion of number of trustees and to authorize lease of corporate property over objections of minority trustees); O'Phinney v. Trustees of Sheppard and Enoch Pratt Hospital, 88 Md. 633,42 A. 58 (1898) (reservation clause allowed legislature and corporate authorities to change corporate name over objections of donor's heirs); Bailey v. Trustees of Power St. Methodist Church, 6 R.I. 491 (1860) (reservation clause allowed legislature and corporate authorities to change method of assessing pews over objections of pewholder). Cf., Central University of Kentucky v. Walter's Ex'rs, 122 Ky. 65, 90 S.W. 1066 (1906) (promissory note given to university still valid after legislative and corporate authorities consolidated university with another college, pursuant to a reservation clause); Seton Hall College v. Village of South Orange, 242 U.S. 100 (1916) (legislative tax exemption not in original charter not a contract and repealable pursuant to a reservation clause); Wagner Free Institute v. Philadelphia, 132 Pa. 612, 19 A. 297 (1890) (reservation clause allowed repeal of tax exemption not contained in original charter).

84. Appeal Tax Court v. Baltimore Academy of the Visitation, 50 Md. 437 (1879) (reservation clause allowed repeal of tax exemption in original charter). Cf, Close v. Glenwood Cemetery, 107 U.S. 466 (1882) (under reservation clause in original charter, Congress could restructure for-profit cemetery corporation to ensure that purchasers of plots got the benefit of their contracts with the corporation).

85. 136 U.S. 1 (1890).

86. 211 U.S. 45(1908).

87. The background of the Mormon Church case is derived principally from Arrington, L., Great Basin Kingdom: An Economic History of the Latter-Day Saints, 1830–1900 (1958)Google Scholar; Lamar, H., The Far Southwest, 1846–1912, at 305–411 (1970)Google Scholar; Larson, G., The “Americanization” of Utah for Statehood (1971)Google Scholar; Linford, , The Mormons and the Law: The Polygamy Cases (pts. 1 & 2), 9 Utah L. Rev. 308, 543 (1964–1965)Google Scholar; Morgan, , The State of Deseret, 8 Utah Hist. Q. 223 (1940)Google Scholar; Poll, , The Political Reconstruction of Utah Territory, 1866–1890, 27 Pac. Hist. Rev. 111 (1958)CrossRefGoogle Scholar.

88. Act of Feb. 4, 1851, [Provisional State of Deseret], reprinted in Morgan, supra note 87, at 223–25; Act of Sept. 14, 1850, [Provisional State of Deseret], reprinted in Morgan, id. at 187–90; Larson, , The Story of the Perpetual Emigration Fund, 18 Miss. Valley Hist. Rev. 184, 194 (1931)CrossRefGoogle Scholar.

89. Act of Sept. 9, 1850, ch. 51, 9 Stat. 453 (1850). Sec. 6, 9 Stat. 455, read, “All the laws passed by the legislative assembly and governor shall be submitted to the Congress of the United States, and, if disapproved, shall be null and of no effect.”

90. Joint Resolution of Oct. 4, 1851, 1851 Utah Terr. Laws 205.

91. See, generally, L. Arrington, supra note 87.

92. Act of July 1, 1862, ch. 126, 12 Stat. 501 (1862); Linford, supra note 87, at 313–16 (discussing background and terms of statute).

93. Linford, supra note 87, at 323; Edmunds-Tucker Act, ch. 397, 24 Stat. 635 (1887). The act became law without the signature of President Grover Cleveland. Note by the Department of State, 24 Stat. 641.

94. For the government's assaults on polygamy through criminal prosecutions, see Linford, supra note 87, at 330–70; Reynolds v. United States, 98 U.S. 145 (1878) (upholding Congressional proscription of polygamy).

95. L. Arrington, supra note 87, 365–79; Linford, supra note 87, at 543–80.

96. 136 U.S. 1 (1890).

97. Id. at 32, 34.

98. Even assuming Congress had the authority to enact comprehensive proscriptions on the practice of polygamy, dissolution of the Mormon Church and confiscation of its property raised issues of freedom of religion, association, speech, and uncompensated taking of private property, all of which, it could be argued, rendered congressional legislation, nominally directed at polygamy, unconstitutionally overbroad. Of course, judicial conceptions of neither substantive first amendment rights nor overbreadth of legislation in the first amendment area had been developed by 1890.

99. Id. at 42, 45, 49, 46–66. Chief Justice Fuller and Justices Field and Lamar dissented as to the validity of the confiscations, arguing that while Congress had the authority to suppress polygamy, “it is not authorized under the cover of that power to seize and confiscate the property of persons, individuals, or corporations, without office found, because they may have been guilty of criminal practices.” Id. at 67 (dissenting opinion by Fuller, C.J.).

100. The background of the Berea College case is principally from Peck, E., Berea's First Century, 1855–1955 (1955)Google Scholar.

101. Id. at 24. The general incorporation law and its reservation clause are at Act of March 9, 1854, ch. 879, 1854 Ky. Acts 164; Act of March 10, 1856, ch. 679, §3, 1856 Ky. Acts 106 (“The General Assembly reserves the right to alter or repeal the charter of any associations formed under the provisions of this act, and the act to which this act is an amendment, at anytime hereafter”).

102. Ky. Const. of 1891, Bill of Rights, §3 in 3 Constitutions, supra note 13, at 1316.

103. Day Law, ch. 85, 1904 Ky. Acts 181.

104. Day Law, ch. 85, §§1–4, 1904 Ky. Acts 181–82.

105. E. Peck, supra note 100, at 50, 53–54. Berea sent black students to other colleges and refused to accept any more. It also founded and partially endowed a legally separate school for blacks, the Lincoln Institute. Id. at 50, 54–57; see, generally, Wright, , The Founding of Lincoln Institute, 49 Filson Club Hist. Q. 57 (1975)Google Scholar. The legislature aided local whites' opposition to the location of the black school near them by requiring the black school to secure a majority vote of approval to locate in a particular area, but the Kentucky Court of Appeals declared the act unconstitutional. Columbia Trust Co. v. Lincoln Institute of Ky, 138 Ky. 804, 129 S.W. 113 (1910).

106. Berea College v. Kentucky, 123 Ky. 209, 215–16, 228, 94 S.W. 623, 624, 629 (1906).

107. Id. at 224–28, 94 S.W. at 627–29.

108. Lochner v. New York, 198 U.S. 45 (1905).

109. Berea College v. Kentucky, 211 U.S. 45, 54, 57–58 (1908).

110. Id. at 67. (Harlan, J., dissenting). Harlan asked, “Have we become so inoculated with prejudice of race that an American government, professedly based on the principles of freedom, and charged with the protection of all citizens alike, can make distinctions between citizens in the matter of their voluntary meeting for innocent purposes simply because of their respective races?” Id. at 69. Unfortunately, the answer was, “Yes.”

111. Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 643 (1819).

112. Id. at 684–90 (Story, J., concurring).

113. Id. at 645.

114. See, generally, A. Simpson, A History of The common Law of Contract (1975).

115. The phrase “ordered liberty” is from Palko v. Connecticut, 302 U.S. 319, 325 (1938).

116. 268 U.S. 510 (1925). For background, see, generally, Saalfeld, L., Forces of Prejudice: The Ku Klux Klan in Oregon 1920–1925 (1984)Google Scholar; Holsinger, , The Oregon School Bill Controversy, 1922–1925, 37 Pac. Hist. Rev. 327 (1968)CrossRefGoogle Scholar; Jorgenson, , The Oregon School Law of 1922: Passage and Sequel, 54 Cath. Hist. Rev. 45 (1968)Google Scholar; Tyack, , The Perils of Pluralism: The Background of the Pierce Case, 74 Am. Hist. Rev. 74 (1968)CrossRefGoogle Scholar.

117. Compulsory Education Act of 1922, ch. 1, 1923 Or. Laws 9 (proposed by initiative petition filed July 6, 1922, and approved by a majority of votes cast at the general election held Nov. 7, 1922).

118. Or. Const, of 1857, art. XI, §2, in 5 Constitutions, supra note 13, at 3013.

119. 268 U.S. at 534–36. The U.S. Const, amend. XIV, §1, provides, in part, “No State shall… deprive any person of life, liberty, or property without due process of law.”

120. 268 U.S. at 534. The Court cited as controlling, id., “the doctrine of Meyer v. Nebraska,” 262 U.S. 390 (1923), in which the Court invalidated a state statute prohibiting the teaching of certain foreign languages to children in part on the grounds that the statute unreasonably interfered with a parental right, protected by the due process clause, to control the education of their children.

121. 268 U.S. at 535.

122. During the regime of social federalism, the Supreme Court never based its decisions in nonprofit corporation cases formally on the interests of institutional beneficiaries. In the Dartmouth College case, Marshall wrote, “The students are fluctuating, and no individual youth has a vested interest in the institution, which can be asserted in a court of justice.” Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 641 (1819). State cases relied on the interests of beneficiaries only rarely, and then most often only incidentally: State v. Springfield Township, 6 Ind. 412 (1854) (state grant of Congressional lands to inhabitants of township as beneficiaries cannot be violated); State ex rel. Pittman v. Adams, 44 Mo. 570 (1869) (beneficiaries are real parties in interest who cannot consent to changes in corporate charter); Brown v. Hummel, 6 Pa. 86 (1847) (trustees and principal of chartered corporation were depositories and guardians of the vested rights of the beneficiaries—the orphan children).

123. 268 U.S. at 535.