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The Green Bag
ercise of the taxing power, and also, ap parently, that the state might repudiate such an exemption under a valid exercise of the police power, should it be found detrimental to public policy. Chief Justice Taney, concurring on other grounds (see Ohio Life Insurance Co. v. Debolt, 16 How. 431), said that a state cannot alienate the power of taxation unless it is allowed to do it by the state constitution. With regard, however, to Washington University v. Rouse, we must confess to a serious oversight. Both that case (8 Wall. 439) and Home of the Friendless v. Rouse (8 Wall. 430) hold that a state may bar gain away the taxing power in perpetuity, and the judgments of Justice Davis in these two cases are open to criticism. 4. The courts, not the legislature, are the final tribunal which shall say whether or not the Constitution has been violated. There are certain conditions under which the legislature may possess a valid right to repeal corporate charters and the courts cannot review such action. But to make legislatures themselves the sole judges as to whether constitutional safeguards are pre served inviolate, when they repeal charters where no right of repeal was reserved, and to deny the right of the courts to interfere, would not tend to make property secure in America. It therefore happens that as a matter of fact, though not of law, the courts in such instances do virtually exercise a power of repeal, and that this state of affairs is for the public good. Our remark that "the repeal of obnoxious charters must be effected by judicial decision rather than by legislative enactment" was meant to be interpreted only in the foregoing sense, that the consti tutional rights of property might be sure of being protected. 5. A considerable number of our states have had the power of repealing and amend ing corporate charters, and all that the New York Court of Appeals said in Lord v. Equi table Life Assurance Society (194 N. Y. 212), about the exercise of this constitutionally reserved power in New York State is doubtless' true. Instances of repeal, however, are far less frequent than those of amendment, and we find in this decision no specific obser vations upon the consequences of the exercise of this unfettered right of repeal. Mr. Orton's proposition is not to be sustained without the presentation of facts bearing on this particular point. If, however, results have
been favorable, that may have come about in spite of this reservation of the right of repeal. The Dartmouth College case un doubtedly infused into all legislatures a greater respect for the property rights of corporations than they would otherwise have .come to experience. There is no doubt that it still exerts a morally deterrent in fluence, even though its doctrine may not be legally binding on the New York legislature with respect to the repeal of charters. In the exercise, however, of the power of amend ment, which in New York State has been resorted to with far greater frequency, the legislature has by no means been free from the salutary legal as well as the moral inhibi tions of the doctrine of the Dartmouth College case. This point can best be illustrated by quoting from a recently published work of much value, Frost on New York Corpora tions (p. 361):— "When it comes to the right of the legisla ture to exercise its reserved power to alter and amend a corporate charter or act, . . . in order to justify the exercise of this power by the legislature it must be done (except in the exercise of the police power) in such a manner as not to defeat or substantially impair the object of the grant or any rights vested under it, which the legislature may deem necessary to secure either that object or some public right. It cannot be used to take away the property already acquired by the corporation or to deprive the corpora tion of the 'fruits actually reduced to posses sion of contracts lawfully made. The altera tions must be reasonable. They must be made in good faith and be consistent with the object and scope of the act of incorpora tion. Sheer oppression and wrong cannot be inflicted under the guise of alteration or amendment. But in all cases where the rights of the general public are in a manner seriously affected the legislature will be granted a great latitude in such matters.' (Buffalo, etc., Ry. Co. v. Dudley, 14 N. Y. 336.)" 6. We "apparently admit" Marshall's error in stating that Dartmouth College was a private foundation. If our words were ambiguous we now disclaim any intention to admit anything of this sort. What con trolling legal authority is there for the im puted erroneousness of Marshall's view? Do not the terms of the grant alone show its private character, whatever public function might subsequently come to be discharged by the corporation thus created? "The rights of the Dartmouth College students," said Chief Justice Doe in Dow v. Railroad, 67 N. H., at p. 36, "are public in a certain
