xt7sxk84nj8k_99 https://exploreuk.uky.edu/dips/xt7sxk84nj8k/data/mets.xml https://exploreuk.uky.edu/dips/xt7sxk84nj8k/data/L2021ua019.dao.xml Kentucky University 18.26 Cubic Feet 32 document boxes, 5 flat boxes, 21 bound volumes archival material L2021ua019 English University of Kentucky Property rights reside with Transylvania University.  The University of Kentucky holds the copyright for materials created in the course of business by University of Kentucky employees. Copyright for all other materials has not been assigned to the University of Kentucky.  For information about permission to reproduce or publish, please contact the Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Transylvania University Library. Record Group 5:  Collection on Kentucky University Substance of the argument of Col. W.C.P. Breckinridge text Substance of the argument of Col. W.C.P. Breckinridge 2024 https://exploreuk.uky.edu/dips/xt7sxk84nj8k/data/L2021ua019/Box_5_22/Folder_3/Multipage4689.pdf 1874 January 16 1874 1874 January 16 section false xt7sxk84nj8k_99 xt7sxk84nj8k KENTUCKY UNIVERSITY.
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SUBSTANCE OF THE ARGUMENT

 

OF

COL. W. C. P. BRECKINRIDGE,

BEFORE THE

JOINT COMMITTEES ON THE JUDICIARY OF THE LEGISLATURE
OF KENTUCKY, ON THE PROPOSED AMENDMENTS
To THE CHARTER OF KENTUCKY UNIVER-
, SITY, DELIVERED IN THE SENATE
CHAMBER, JANUARY 16, 1874.

GENTLEMEN OF THE JOINT COMMITTEES:

I represent Kentucky University, and, as her counsel,I de-
sire to submit to you such considerations of law and fact as
seem to me important in your deliberations upon the petitions
referred to you. -

As I am informed, there are no affidavits, depositions, or other

, testimony offered to you; there are no proofs as to the
preparationfflimrflmséfbf these petitions: no specific
charges presented by responsible parties, over their own signa-
tures, of malfeasance in office, non-performance of duty, or vio-
lation of law; no allegation of misappropriation of funds or
Official misconduct. Whenever such charges are made, we are
prepared to meet them; until made, I present the names Of the
Curators as ample refutation of insinuations, inuendoes, and mis-
representations.

Q;

 

 2

Petitions professing to be the expression of desire from certain
congregations, calling themselves Christian Churches, have been
presented, asking this Legislature to so amend the charter of
Kentucky University as to oust from office the present Board of
Curators, and vest in “The Christian Church in Kentucky” the
power of electing periodically the Curators of said University;
and this demand is based on the claim that that Church is in its
aggregate unity the owner of the University, and entitled to its
_ control and management. Before this demand can be granted,
the Legislature must decide that the Christian Church is the
owner of the property of Kentucky University; that the Legis-
lature has the power to pass the act desired, and that the change
, is a proper one to be made.

I deny all three of these propositions. Historically, the
Christian Church in Kentucky, as such, never contributed to
the funds of the University, and never had a voice in its man—
agement. As a matter of fact, it never held any legal or equita—
ble interest in it. As a question of law, it was never partner,
stockholder, owner, or cesz‘m‘ gm z‘msz‘; and, according to its
Church organization, government, and polity, it could not pos—
sibly be title—holder of the property, or control the affairs of the
University.

To the judicial department of the government has the Con-
stitution committed the decisions of questions affecting title
to property. If these Churches are the owners of this institu—
tion; if they have just cause of complaint; the courts are open
to them. Let them go where legal proof can be taken; the
facts ascertained judicially, and the legal rights adjudicated.
VVVhere there is a right there is a legal remedy. Let them seek
it in the courts. Surely it cannot be that numbers are an ele—
ment in such a decision; and clamor potential; and therefore
the remedy sought here! “ ,. w m“, g" M

Can you afford to hear every complaint that may be made as
to the management of all corporations? Will you open the
door to every stockholder who may think himself aggrieved;
and, turning the legislative committees into quasi courts, render
judgments and report amendatory acts? Let the law be admin—
istered in the courts of justice, where passion finds no utterance,
and justice dominates over policy?

 

   

 
  

 

 

 

 

3

But we are here to answer, if required. My learned friend
(Governor Porter) agrees that this is a private corporation. We
agree that the principles laid down in the Dartmouth College
case would have applied to this case, but for the power reserved
to alter, amend, or repeal charters. He contends that that re-
servation of the power of amendment is practically unlimited;
and that while under the charter the legal title is in the‘ Curators,
the equitable title is in the Christian Church. In other words,
he holds that the Curators are in law but trustees for the true
owner———The Christian Church; and therefore, if it desire the
change, the Legislature ought to grant it.

I have been struck with the truth and candor of Governor
Porter’s statement, that he was not well acquainted with the
steps of growth of Kentucky University. There are five par—
ties interested in the institution: 1. Bacon College, founded by
Thornton F. Johnson and certain others; 2. Transylvania Uni-
versity, older even that Bacon College, and whose antiquity
every child of hers reveres; 3. Kentucky University as estab-
lished in Harrodsburg prior to its removal and consolidation
with Transylvania University, the present institution; 4. The
State, through the Agricultural College; 5. The citizens of
Fayette and other counties who have so generously given of
their means to establish the institution in their midst. The only

party who does not have and never did have any part in it, is

the one that now makes the air full of clamors. The history of
the enterprise shows that the Christian Church of Kentucky,
as such, never had part or lot in it. To Transylvania it gave
nothing. She was the cherished child of the Old Dominion,
and to her, her history or her funds, the Christian Church has
in no way contributed. The original funds of the Agricultural
and Mechanical College came from grants of the Federal Gov-
ernment, and the later funds came from the citizens of Fayette
and other counties, irrespective of sect or party, religious or
political, and the claim never has been made, nor is it even now
made, that the Christian Church, as such, gave anything to it.
.Transylvania, whose corner—stone was laid in, I780, when our
beautiful Blue—grass country was a Wilderness, has not been de-
stroyed has not been merged into Kentucky University. Her

 

 
   
 

 

corporate powers are suspended; but her corporate existence» '1

  

 ‘.‘\

4

remains. The two corporations known as Transylvania Univer-
sity and Kentucky University were consolidated into a new cor-
poration, under the name of the Kentucky University. They
were consolidated, not by an act of the Legislature of Kentucky,
but by z/wz'r own 607256722‘, under the permission of the law. The
contract of consolidation was the then existing charter of Ken-
tucky University, the acts of February 22, 1865, and February
28, 1865, and the charters of Transylvania. The consolidation
was based on common consent. The funds and property of

. Transylvania were expressly excepted from the provisions of the

act of 1858 (section 3 of act of February 28, 1865).
Now by what right can this Legislature make a new contract

'between Transylvania and Kentucky Universities? Is it not

possible that the legal effect of these amendments—if they be-
come a law—will be the dissolution of that consolidation?
Again, as to Bacon College. There is not the shadow of a
claim that the Christian Church established this as a sectarian
college. Georgetown College was under the control of mem-
bers of the Baptist Church, and there were intestine troubles,
which resulted in the resignation of Thornton F. Johnson, one
of the professors. He determined to establish a college‘ of his

, - own, on a broad non—sectarian basis. I hold his first circular in

my hand. john T. Johnson, whose memory is revered even as
his person was beloved, seconded the movement, and I hold his

~ first publication in my hand.

He called on all the friends of the enterprise to assist them,
and, strange to say, basing his appeal upon the very same phi—
lanthropic basis that Mr. Bowman put his efforts in after years,
namely: Universal education on universal principles. In his
circular letter he calls upon all men of philanthropic views, and
of whatever faith, to unite in his effort. Even so does Mr.
Bowman, whose great heart is filled with a desire to have uni—

. versal and unsectional education for lee people. A charter was

obtained under the name of Bacon College. In that charter not

Jone word is said about the Christian Church. After years of

unsuccessful struggles, Bacon College became a wreck, and her
halls were closed. All efforts to resuscitate failed. In debt,
without funds, doors closed—the fate of Bacon College seemed
sealed. But at this moment john B. Bowman, a plain farmer of

 

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5

Mercer county, an alumnus of Bacon College, a quite young
man, conceived the idea of building a great University on the”
ruins of a small College. This is the conception of no ordinary
mind, and the desire of no selfish heart. Moved by no personal
ambition, at his own risk and expense, he starts out upon his
self-appointed mission, devoting the prime of his manhood to
the great work he had undertaken. He headed the list with
the names of himself and brothers, and unaided and alone raised
the endowment fund.

When he was thus engaged he visited the only State meeting
of any kind that the Christian Churches have, viz: a voluntary
Missionary Society, and asked to be heard on this great matter
that filled his heart, and was mfzzsm’, because his enterprise was
foreign to their objects; and for the Church to take any part
in such an enterprise would be to ignore its own fundamental
tenets. And the refusal was in strict accord with the teachings
of their leaders and their polity of Church government. 'There
is no such ecclesiastical body as “The Christian Church of Ken—
tucky.” Their own Church polity forbids this. They must tear
down the superstructure of their faith to get such a body. Their
tenets are, that that which is called the Christian Church is com-
posed of separate and individual Churches, acknowledging no
common head and no common arbiter but their God. They
have no Conference, Synod, Convocation, or other body. Each
congregation is an independent unit, sovereign in its own limits—
powerless beyond. There is no delegate—no representative fea-
ture. Any body of Christians can organize a Church of God;
establish itself.

I commend to my Christian brethren around me the teachings .
of Alexander Campbell in the Campbell~Rice debate; and in
the Harbinger for 1841—1844. Brush the dust off of these an-
cient volumes, and renew your elementary studies; and then
tell us what is this new eCclesiastical organism—~“ The Chris—
tian Church in Kentucky.” “The Christian Churches in Ken—
tucky” I understand as I do “The Churches in Gallacia.” I
freely recognize that, in a very high sense, there is a noble
company of men} and women, bought with the blood of the Son
of God, who are Christians in Kentucky. Thank God for it. I
will not quarrel with them for claiming a somewhat exclusive

 

  

6

use of the name; In every sense—narrow and broad—thou—
sands of them are Christians. But there is no organic Church——
no ecclesiastical body—known or possible as “The Christian
Church in Kentucky ”—unless they repudiate theirfpresent form
of government.

Moreover, they held—do now hold—that the work of the
Church of Christ is to preach Christ, baptising into the name of
the Father, Son, and Holy Ghost all who confess that Christ is
the Son of God. To teach Latin, Greek, and Mathematics was
not the work of the Church. To own and manage secular in—
stitutions was to open the door to ecclesiastical government, and
to pave the way to the destruction of congregational indepen—
dence. The Missionary Society refused, therefore, to so much
as hear Bowman.

\Villiam Morton, a saintly man, and others, founded an Edu-
cation Society—«obtaining for it a close corporation with a self-
perpetuating Board of Trustees for the purpose of assisting
needy candidates for the ministry; and they desired to control
Bacon College for this end, and an act was passed in 1856 author-
izing that Society to elect Trustees for Bacon College, provided
her Trustees would consent. The Trustees refused their con—
sent, because it was too sectarian.

Bowman raised $150,000 in subscriptions. After this splendid
and gratifying success, whom did he call together to unite in the
establishment of the University? The Churches or their dele-
fgates? No—the donors. I hold in my hand a copy of their
proceedings; and there is nothing about the Churches in it.
The donors appointed a committee to prepare a charter; the
donors met to hear and approve the proposed charter; the
donors petitioned the Legislature to grant it; the donors and
Trustees of Bacon College accepted it.

The number of Trustees of Bacon College was sixteen. The

donors thought the number should be larger, “in the election of
i which the present Board can so distribute the additional mem-
bers as fairly to represent the several sections of 27er Sign? lam/mg
(z [mgr z'zzz‘ewsz in the funds of the institution.” (Page 9 of print—
ed minutes of donors and friends of Bacon College, May 6, 1857).
Not one word about the Church being interested or represented.

The Charter was granted and accepted, and the new Board met,
organized, and put forth a carefully prepared address, stating the

 

 

 

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7

principles on which the new University was founded, and the
objects to be accomplished by it. So important did they con—
sider it, that all the Curators signed it, instead of the President
and Secretary. That paper is addressed, not to the Christian
Church in Kentucky, but “ To the Friends of Education in the
West and South.” In it they say, as if foreseeing this strife:

“ We desire to say, that while we are endeavoring to build up an institution which
will meet the actual and pressing wants of our State and the Cl-urch, and while we
have strong moral and pecuniary influences of a local character to foster- and support , s
it, ya! we dis/zilzrfly (wow, flzzzz‘ 720 sedimza! 07' retriar'z'mz (ark/72612! 5/10]! 27167 &e a 5072.- /-
slif2567zt of 22‘s ()zgrzizz';(zz‘z'07z.” (Page 38 of address of 1858.)

Of those who signed that address, I find seven who sign the
remonstrance against all amendments giving a flat contradic-
tion to that solemn avowal; and three who are understood to
favor this Legislature doing what then they solemnly avowed
they would never do. The others-are not members of the
Board—many of them having gone to their reward. ,

In 1866 the then Board published a financial history of the
University, in which, referring to the meeting at which the ad—
dress from which I have quoted was adopted, they said:

“ This meeting was important as having recognized the contemplated University as
the property of the people at large who hal subscribed the money. They divested
it of all local character, and suggested such provisions of the charter as would give
[/16 {10/2075 aproprr refresmmzion 2'72 2716 Board of Cumiorr.”

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And in section 19 of the charter provision is made whereby
representation of donors, according to county—not Church——

\ lines, can be had. In 1860 or 1861, an effort was made to /
remove the University to Lexington. It was resisted, and the “
donors, not the Churches, consulted. When the removal was
made, the Churches were not consulted, though provision was
made to secure the rights of donors.

In the face of these historic facts, it requires some hardihood,
or some passion, to claim that the University is the property of
the Christian Church. It gave nothing as a Church. It had no
voice in its inception—~110 part in its establishment——no hand in
its management. But the University was given to the Church
as a Church—is the claim? By whom, when, and where is, the
deed of gift? Transylvania, with her grounds, buildings, libra-
ries, funds, and apparatus, was not given to any Church or de-
nomination. There is no power to do this. The agricultural
fund has not been given by the State to any sect or Church.
The many thousands given by the good people of Fayette,

1

 

  

8

Bourbon, and adjoining counties, were not so given. Far from
it. They were given for a nonsectarian University on a broad,
liberal foundation. But the charter, they say, is their deed of gift?
If so, why amend it? If your rights and title be thus secured,
and any one is violating them, the courts are open. Suppose a
stockholder in some bank should come here and say the bank
directors are not doing right, and demand they be turned out;
how longwould the Legislature hear him? Would it waste its
time to listen to him? or would it say, “The courts are open; go
to them?” The remedy for these gentlemen is in the courts.
But they say: “We will take a short cut.” Yes, and just the
same principle is that which, by trampling on the law, causes our
lamp-posts to serve as gallows. I am surprised that these gen—
tlemen should come here expecting the Legislature to turn itself
into a drum-head court—martial.

But if the Legislature is going to resolve itself into a court,
we demand that it shall give us a hearing; that witnesses shall
be introduced, and the evidence obtained upon sworn testimony,
under cross—examination. Let us have no at pant) trial, upon, at
par/2‘5 statements, sent out by a central establishment with all
necessary passionate appeals, but a free, fair, and full investiga—
tion. This is our right, and this we demand.

But let us examine the charter:

“ WHEREAS, An institution of learning, known and called by the name of Bacon
College, was founded by certain members of the body of the ‘Disciples of Christ,’
denominated Christians, and was chartered by the Legislature of Kentucky in 1836;
and whereas, in view of the educational wants of said body of Christians in Ken—
tucky, and of their wishes for the permanent success of said institution, known and
expressed at various times, a plan for its permanent endowment and organization has
been presented and prosecuted by J. B. Bowman, which has resulted thus far in rais-
ing $150,000 of endowment fund; and whereas, it is desired to establish a first-class
University upon a more modern, American, and Christian basis; and to carry out
such design, it is necessary to amend and extend the provisions of the charter of said
institution; therefore,

“% I. Be it mac/ed 41/ 1/16 General Assemély of #26 Cal/nuwzwmll/z of [fining/3y,
That said institution, known and called by the name of Bacon College, and located
at Harrodsburg, in the county of Mercer and State of Kentucky, shall be, from and
after the passage of this act, known and called by the name of Kentucky Univer-
sity.”

Now, let’s hear the gentleman’s argument upon this: “Cer—
tain Disciples did a certain thing, ago the work is 710; Z/zc’z'rs, but
that of the Church to which they happen to belong!”

Again, I read the eighth section, upon which the gentleman
lays peculiar stress:

“ Q 8. For the ownership and control of said University, at least two thirds of the
Board of Curators shall always be members of the Christian Church in Kentucky.”

  

9

Now, this implies about as much ownership as saying that
two thirds shall always be redheaded men! But suppose the
section read “two thirds shall always be citizens of Fayette
county.” Does that make Fayette county own the University?
Not at all. The term is one of eligibility, not of ownership; a
qualification of certain of the members of the Board, not a vest—
ing of rights of property.

Let me submit a parallel case:

“WHEREAS, An institution of learning, known and called by the name of Fayette
Academy, was founded by certain citizens of Fayette county, and was chartered by the
Legislature of Kentucky in the year 1836; and whereas, said institution,after a series
of unsuccessful efforts for its permanent endowment and establishment, suspended its
regular collegiate operations; and whereas, in view of the educational wants of the
said county of Fayette, and of the wishes ofits citizens for the permanent success of
said institution, known and expressed at various times, a plan for its full endowment
and reorganization has been presented and prosecuted by John B. Bowman, of Fay-
ette county, which has resulted thus far in the raising of $100,000 of endowment
fund; and whereas, it is desired to establish a first—class University, upon a modern
basis, in said county; and to carry out said design, it is necessary to amend and
extend the provisions of the charter of said institution; therefore,

“é I . Be 2‘! maria/2.7 [1y f/ze Genera! Ana/1&1}! off/m Commonwea/flz (/ [i'eiz/ur/cy,
That said institution, known and called by the name of Fayette Academy, and located
in Fayette county, shall be known and called Kentucky University.

“5g 2. That John B. Bowman, M. C. Johnson, George B. Kinkead, and twenty-
seven others (all citizens of Fayette county), shall be, and they and their successors
in office are hereby, constituted a body—politic and corporate, to be known by the
name of the Curators of Kentucky University; and by that name shall have perpet-
ual succession and existence; and a common seal, which seal they may change and
alter at pleasure; and by the aforesaid name, and in their corporate capacity, may
sue and be sued, plead and be impleaded, contract and be contracted with, answer
and be answered, in all courts of law and equity; and the same, in their corporate
name, are hereby invested with the legal right to all the property and estate, real and
personal, as well as all the rights and claims heretofore vested in the Trustees of the
said Fayette Academy; and may, in said corporate name, sue for and recover the
same in as full and ample manner as the said Trustees of Fayette Academy could
have done prior to this act.

Ҥ 3. For the ownership and control of said University, at least two thirds of the
Board of Curators shall always be citizens of Fayette county.”

Now, under an act similar in all respects to the present char-
ter of Kentucky University, except with the above preamble and
sections in lieu of its preamble and sections 1, 2, and 8, a peti—
tion is filed before your body from the good people of Fayette
praying an amendment expelling the Curators, and providing
hereafter that the Curators shall be elected by the qualified
voters of Fayette county, or by all residents of the county over
a fixed age, without regard to sex or color, and proof offered
that every dollar was given by citizens of Fayette, would any
lawyer dare argue that the petition could be granted? Would
it strengthen the case if any number of publications and ad-

 

 

  

 

IO

dresses by the Board to the people of Fayette were filed, in
which they spoke of the University as “your institution,” “it is
your University,” &c.? Yet this is the whole argument of the
learned counsel for petitioners. Title to property and control of
corporate institutions cannot be thus obtained.

Corporate institutions do not stand on so unstable a founda—
tion; and well might donors refuse to give if their solemn char-
ters can be thus destroyed.

The gentleman confounds a general interest with a legal in—
terest—a benefit with an equitable title. It is to the interest of
Lexington that her Orphan Asylum, to which she and the county
of Fayette give annually $500, be sustained. It is called The
Lexington Orphan Asylum. It is in a true sense a Lexington
institution.- Lexington was honored by the residence of the
noble women who founded and maintain it. But has this Leg—
islature power to wrest it from them and turn it over to the
City Council or popular vote?

This University was desired by its founders to be a benefit to
that Church; to be pervaded by Christian influences, not con—
trolled by ecclesiastical bodies. To secure the one and avoid
the other the eighth clause was inserted. Bowman was a mem-
ber of that Church; was proud of it, and is to—night. It is the
Church of his heart, and he was and is glad to have the institu-

tion under its auspices; but he never intended that it should be _

other than “a great, free University for the people.”

The institution has been thus controlled. Two thirds of its
Curators are members of that Church; every professor in its
College of Arts is a member thereof. The President’s house
and dormitory of Transylvania, and rooms in Morrison College,
and three Professors, are given to the Bible College of it;
although only $5,0oo.was subscribed for that'purpose. How
much more could have been done?

If the Christian Church in Kentucky does not own the Uni—
versity, can the Legislature of Kentucky give it to that Church?
This is the legal question involved. It would seem that the
question answered itself. But the power of the Legislature is
claimed with such earnestness by the able counsel that I submit
to your committees the following principles and authorities.

 

 1"»,

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-owg-__,

II

A charter is a contract between the State and the corporation,
and amendments thereto cannot be made without consent, be-
cause of violation of the Constitution of the United States.
(Dartmouth College case, 4 W/zeaz‘mz.)

But a clause in the charter reserving the power to alter, amend,
or repeal, or a general statute previously enacted to the same
effect, becomes a part of the contract. That part must be con—
strued according to its language, and, therefore, every such
statute must be separately construed. If the clause be “at the
pleasure of the Legislature,” it is, of course, of widerimport than
if it be that “privileges and franchises” alone may be altered or
destroyed.

The Kentucky statute is limited expressly, “ that while privi-
leges and franchises so granted may be changed or repealed, no
amendment or repeal shall impair OZ/ze’r rag/22‘s previously vested.”
Whatever, therefore, are “other rights,” as contradistinguished
from “privileges and franchises,” are beyond the power of the
Legislature.

“A privilege is an exemption from some duty, burden, or at—
tendance, &c.” (Bacon’s Aém'dgmmz‘, “Pz'z'vz‘Zc’ge’sffi

“Franchise is a royal prerogative subsisting in a subject by a
grant from the crown.” (Gremzlmf’s Cruise, [We 27, Fimzc/zz'se,
section I, being side page 260 of volume 3, or top page 55 of
same volume.)

Whatever does not come under these definitions cannot be
touched. _The statutes of other States differ widely from this
Kentucky statute; especially different are the statutes of Massa—
chusetts and New York. I

While the charter is a contract between the State and the
corporation, it is not necessarily between them only. It may
also be a contract between the stockholders; or between the
stockholders and the corporation; or between the corporation
and third persons; or between the stockholders and third per—
sons. It is only the contract between the State and the corpora—
tion that the Legislature can alter under a reserving clause. This
is true under every such clause in any American State, and must
be so long as the Constitution of the United States prohibits the
obligation of a contract from being impaired. The State can
reserve power to alter her contract—she cannot reserve power

,

 

 

 

 12

 

to impair any other, or anybody else’s contract. The Kentucky
statute recognizes this, and limits amendments to “privileges
and franchises.”

The general principle is thus stated by a Judge of the Court
of Appeals of New York in “ 77w Sizzle 7/5. Jifl/[or."’

“ In New York the Constitution has deprived the Legislature of thepower to grant
irrepealable charters, and there is now no power to make a grant of this description
which shall operate as an irrevocable contract on the part of the State. But this res—
ervation is for the benefit of the State alone, and affects only the relations between it
and the corporation. The exercise of this reserved power may undoubtedly indirect—
ly affect private rights and interests which are dependent upon the powers and fran—
chises of the corporation itself, but no others. The individual rights and interests of
the members of the corporation, or of persons dealing with it, cannot be acted upon
dirt ctly by the Legislature, eVen under the form of an amendment of a charter. A
Contract between individuals, or between a corporation and individuals, is not subjected
to the action of the Legislature by the mere fact that it is embraced in a charter, or
an amendment to a charter, or results from a dealing had with reference to sach an
enactment. The State has power to revoke its own contracts where it has in making
them reserved such right. But it has no power to impair the lawful contracts of its
citizens, or even of corporations created by it.”

[7; Zzzorz's/az'o w. [Jacky/25ml»? and [V’ZU Yor/e Railroad Col/zlozmy
(18 New yorsoy quzz’z’y Reports, I7 5),‘it was held that the reserva-
tion in a charter that the State may at any time alter, amend, or
repeal it, is a reservation by the State for its own benefit, and is
not intended, and cannot be used, to affect the rights of corpo—
rators as between themselves. It is wholly confined to the
powers and franchises granted to the corporation by its charter.

In Oldz‘own (‘5’ Limo/72 Railroad COil'Zde7Zj/ vs. Voaz’z'o (39 111mm,
571), it was held, that the reserved ‘power to amend the charter
did not authorize a change in the liability of the stockholders as
between themselves. See also Hawthorn 7/5. Calcf, 2 Wallace,
10, and cases there cited and approved; and in Cormzo/zwm/Z/z
w. Essex Company (13 Gray, 239) it was held, that, under
a power to amend, no amendment of the charter could take
away rights and property which had become vested under the
legitimate exercise of the powers granted. (See Sz‘az‘o, (96., 7/5.
Ada/725,61” 44 MS‘sourz', 570.)

Now let us apply these principles to the case here. In those
Curators and their successors, legally chosen by them, has been
vested the title—legal and equitable—to all the property, assets,
and funds of Kentucky University. Contracts have been made
with various donors that these men shall do certain things.
With them Transylvania University has made a contract. You
can repeal the charter; you can take away all privileges and

 

 

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franchises; but how can you divest them of title, or release
them from their contracts? Your repeal would simply require
an unincorporated association to hold the title and perform the
contracts. There is no power in this government, in any of its
branches, to take any property and give it to another; to com—
pel me to accept partners I desire not to associate with. You
cannot take the whole, or a part. You can incorporate a new
Kentucky University. You can tear down the one created by
\ years of sacrifice, labor, and devotion. But you cannot, by
i amendment to a charter, confiscate more than a half a million of
'F dollars, and by a legislative enactment vest it in any one or ,7 .1
9 number of people or Churches, no matter how potent, compact, '3; .
z and clamorous.

1i ‘ Our own court has uttered no uncertain sound on this sub-

 

   

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‘ ject. In Sage, (fie, 725. Dillard, (9%, it decides expressly that a 3;,“ ‘
E reservation by the Legislature in a charter to alter, repeal, or it
i amend, does not imply the power to alter or change the vested Fifi ‘j
4? rights acquired by the corporators under the charter, and to add it
i new parties and managers without the consent of the corpo- if
ll rators. I commend the able briefs of the learned counsel for the ii
i appellants, and the entire opinion of the court, to your careful
; consideration. The facts in that case and in this are curiously

, similar. There it was a Baptist institution, founded by donors
4 under a charter, with power of self—perpetuation