ated the fund are the real owners, then without their consent and against their will, it has been taken from their chosen agents, and placed in the custody and management of others, whom they did not appoint and over whom they have no control. Property in the hands of an agent is just as inviolate as that in the custody of the owner himself. As long as the principal may choose and control his agent, his dominion of the property confided to the agent continues, but this dominion, or proprietorship, is at once destroyed the moment that his property is forcibly, and against his will, seized, and absolutely and irrevocably transferred to an other agent, selected not by the owner, but by some other person or authority. of absolute public control, that another class, whose property consists of private donations and to which the organized public has contributed nothing, shall also be subjected to such absolute governmental control because the charity they administer has been christened a "public charity" in legal nomen. clature. In common acceptation, colleges are not "charitable institutions," although in law they administer a public charity. This means no more than that the public are incidentally benefited by the education of some of its members, the immediate advantage accruing to the individual members who have received instruction. The unbroken current of authority declares that the property of such institutions is private property, and the corporations themselves private corporations. Dartmouth College Trustees v. Woodward, 17 U. S. 4 Wheat. 518, 4 L. ed. 629; Vincennes University Trustees v. Indiana, 55 U. S. 14 How. 269, 14 L. ed. 416; Yarmouth v. North Yarmouth, 34 Me. 411, 56 Am. Dec. 666; Belfast Academy Trustees v. Salmond, 11 Me. 114; Den v. Foy, 5 N. C. 58; State v. Adams, 44 Mo. 570; Downing v. Indiana State Board of Agriculture, 129 Ind. 443; Illinois Board of Education v. Greenebaum, 39 Ill. 609; Illinois Board of Education v. Bakewell, 122 Ill. 339; Montpelier Academy Trustees v. George, 14 La. 395. We have seen that the statute under consideration has taken from the control and management of the Cincinnati College all of its property and placed it under the control and management of the University of Cincinnati. One ground, as we understand the argument of counsel, upon which this result is maintained to be lawful, is that the purpose to which this property was devoted by its original donors is a public purpose, and that that circumstance alone is sufficient to impress upon the property a public character; but if that is not so, yet as the purpose of the donors was not private gain, but public charity, and as the property under the new corporation would be applied to the same When the donors of property devote it to purpose to which the Cincinnati College a charitable purpose and choose an existing would have applied it, had the latter con- or create a new corporation as an instrument tinued its administration, that therefore no by which this purpose is to be effected, they substantial right, either of the original do- make this instrument their perpetual repnors or of the corporation, was violated by resentative for that purpose. "These gifts the law. That in fact the only rights the were made, not indeed to make a profit for original donors had, as the result of their the donors, or their posterity, but for somecontribution to the funds of the Cincinnati thing in their opinion of inestimable value; College, was that of voting for directors of for something which they deemed a full the concern, which was "no more property equivalent for the money with which it was than the privilege and duty of a citizen to purchased. The consideration for which they vote for a governor of a state, or presidential stipulated is the perpetual application of the electors, are property. fund to its object, in the mode prescribed by The results of establishing this doctrine themselves. Their descendants may take no would be to place every eleemosynary cor-interest in the preservation of this consideraporation within the state, whether religious, educational, or created to administer to the wants of the suffering or needy, beyond the limits of constitutional protection. When ever, in the opinion of a majority of the general assembly, the public interest, or the interest of two or more colleges, or churches, or other private eleemosynary corporations, required them to be united, the property of one or more of them could be seized and transferred to another. The doctrine finds no support in any treatise or adjudication within our knowledge, nor by reason or justice. There are two classes of public charities, one where the institutions are public in the croadest sense of that term, that is, they are owned by the state, or some subdivision thereof created for governmental purposes, and maintained at the public expense. These institutions are absolutely under the control and management of the public through its proper representatives. As respects them no vested or private rights pertain. It does not follow, however, that because this class of public charitable institutions are the subjects |tion. But in this respect their descendants are not their representatives. They are represented by the corporation. The corporation is the assignee of their rights, stand in their place, and distributes their bounty, as they would themselves have distributed it, had they been immortal." Dartmouth College Trustees v. Woodward, 17 U. S. 4 Wheat. 642. 4 L. ed. 660. Whether the Cincinnati College is regarded as the owner in its own right of the property donated to it, or as the representative of the donors, charged with the execution of their purpose, is not material; in either view the property is private as contradistinguished from public, and as such is within the protection of that provision of the constitution which declares private property to be inviolate. We now come to the consideration of the provision in the charter of the Cincinnati College, which reserves to the general assembly the right of amendment. This reser vation would be wholly unnecessary if the Cincinnati College had no rights of property which the general assembly was bound to respect. If the legislature, at its will, could divest this corporation of its property, the legislative control of the institution would be absolute, for by taking away its entire property rights all effectual corporate action would be at once paralyzed. Thenceforward it would be powerless to advance the purposes of its creation. The Cincinnati College was the lawful owner of the property in its possession, it is immaterial whether it was acquired from the Cincinnati Lancaster Seminary that it succeeded, or by subscriptions and donations subsequently made. This property had been intrusted to it for the purposes of establishing and maintaining a "college." No specific branches of learning were prescribed, or The authorities agree in holding that the method of instruction commended. Primary, legislative power of amendment and altera-academical, medical, legal and philosophical tion thus reserved in charters is not absolute, although its boundaries are not yet established. In Kentucky this power of amendment seems to be limited to those matters which concern the relations established by the charter between the corporation and the state. "The power to alter or amend the contract, in our conception, is to change it as between the original parties, and such others only, as have been permitted, by their mutual consent, to come into the enjoyment of its benefits and privileges; not to compel one of the parties to operate in conjunction with others, and share with them the privileges and benefits of the contract." Sage v. Dillard, 15 B. Mon. 359. Whatever difficulties have been encountered by the courts in ascertaining the limits of this reserved legislative power, they concur in denying that under it the legislature can strip a corporation of its rights of property. "The power of alteration and amendment is not without limit. The alterations must be reasonable; they must be in good faith, and be consistent with the scope and object of the act of incorporation. Sheer oppression and wrong cannot be inflicted under the guise of an amendment or alteration. Beyond the sphere of the reserved powers, the vested rights of property of corporations, in such cases, are surrounded by the same sanctions and are as inviolable as in other cases. Shields v. Ohio, 95 U. S. 324, 24 L. ed. 359; Detroit v. Detroit Pl. Road Co. 43 Mich. 140; Orr v. Bracken County, 81 Ky. 593. courses were from time to time attempted. All of them except the law school proved unsuccessful and were abandoned; the latter has been continuously and successfully maintained for nearly sixty years, and substantially the entire income of the institu tion during that period has been devoted to its maintenance and improvement, without material objection appearing to have been made by any one of the donors. The facts that such donors of the property, to this institution gave it with knowledge that no specific branches of learning or method of instruction were prescribed by its charter, together with the brief history of its various educational attempts and failures just adverted to, and the acquiescence of such donors therein, tend to show that these donors entrusted to this chosen instrument of their will, a wide discretion respecting the course and method of instruction to which their donations were to be devoted, and if good faith is to be kept with these donors, we must deny to the legislature the power to seize the fund thus raised, and transfer it from these chosen agents to others, in whose discretion they did not confide. This power, we think is prohibited by section 19 of article 1 of the Constitution of 1852, which declares the inviolability of private property. This conclusion makes unnecessary the consideration of the other questions raised in argument. Judgment affirmed. CALIFORNIA SUPREME COURT. Re ESTATE OF Clara G. COMASSI, Deceased. 1. A will made by a married woman is NOTE.-On the subject of revocation of will by marriage, see Roane v. Hollingshead (Md.) 17 L. R. A. 592; Stewart v. Powell (Ky.) 10 L. R. A. 57, and note; also cases cited in note to Davis v. Fogle (Ind.) 7 L. R. A. 485. See case last referred to and note thereto on subJect of revocation of will by adoption or birth of child. See also 36 L. R. A. 176. (April 8, 1895.) APPEAL from an order of the Superior Court for Sacramento County denying an application for probate of the will of Clara G. Comassi, deceased. Reversed. The facts are stated in the opinion. Harrison, J., delivered the opinion of the court: Clara G. Comassi died in the city of Sacramento July 31, 1892, and thereafter a document bearing date June 23, 1877, purporting to be her last will and testament, was presented to the superior court for probate. The probate was contested by Mabel Delphina Comassi, formerly Mabel Delphina Eric, claiming as heir to the deceased, by virtue of an adoption; and upon the hearing of the was for so many years a subject of controversy in the English courts, and which, in many of the states of this country, is still permitted, under a clause in their statutes authorizing a revocation to be "implied by law from subsequent changes in the condition or circumstances of the testator." contest the court found that in May, 1886, | the doctrine of implied revocation, which upon proceedings had in the superior court for Yuba county, that court made an order declaring that Mabel should thenceforth be regarded as the child of said Clara G. Comassi, and that the said Mabel and the said Clara should sustain towards each other the legal relation of parent and child. The court also found that the will was properly executed, and that at the time of its execution the deceased was in all respects competent to make a will; that she was at that time a married woman, the wife of one G. Comassi; that her husband died on the 26th of December, 1878, and that on the 25th of August, 1886, she was again married to Joseph O. Barbeau, from whom she was subsequently divorced. The court held that her marriage subsequent to the execution of the will had the effect to revoke it, and denied the application for its probate. From this order the petitioner has appealed. The right of any person to execute a will, as well as the form in which the will must be executed, or the manner in which it may be revoked, are matters entirely of statutory regulation. The power of the legislature to limit the class of persons who shall be competent to make a will, or to declare that a change in the personal status of such persons after its execution shall operate as a revoca tion of the will, or be a sufficient reason for denying it probate, is unquestioned. "The Civil Code establishes the law of this state upon the subjects to which it relates" (sec. 4); and in order to determine whether a will has been properly executed or revoked, or whether, after its execution, there has been such a change in the status or personal rela tions of the testator as in law will effect its revocation, we have only to determine whether, in the one case, there has been a compliance with the requirements of the statute, or, in the other case, whether the changed condition of the testator is within the conditions named in the statute. By the common law a married woman had no power to make a will, and the marriage of a woman revoked any will that she had previously made. In this state, however, there is no restriction upon the power of a married woman to make a will, and upon proof of its execution it is entitled to probate, the same as the will of any other person, unless it is shown to have been revoked in one of the modes prescribed by the statute. Section 1292 of the Civil Code declares: "Except in the cases in this chapter mentioned, no written will, nor any part thereof, can be revoked or altered otherwise than: (1) By a written will or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or, (2) by being burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence, and by his direction." And section 1970, Code Civ. Proc., declares : "A written will cannot be revoked or altered otherwise than as provided in the Civil Code." The effect of these provisions is to do away with 66 The respondent does not controvert the effect of these provisions, but contends that, under the provisions of section 1300 of the Civil Code, the subsequent marriage of the testatrix had the effect to revoke her will. That section is as follows: "A will executed by an unmarried woman is revoked by her subsequent marriage, and is not revived by the death of her husband." By its own terms, this section is applicable only to a will "executed by an unmarried woman," and can have no application to the present case, for the reason that at the time of the execution of her will the testatrix was a married woman, whose husband was at that time living. The argument of the respondent that this section controls the present case, for the reason that at the time of her subsequent marriage her will was the will of an unmarried woman, fails to cover all the condi tions which the section prescribes as essential to the revocation of a will previously executed. The section does not declare that every will of an unmarried woman shall be revoked by her subsequent marriage, but, by its terms, limits such revocation to "a will executed by an unmarried woman ;" and, unless she was unmarried at the time she executed her will, the section has no application. A will is "executed" when it is signed and attested in the manner prescribed by section 1276, and the will in the present case was so executed in 1877, at a time when Mrs. Comassi was a married woman. The code is silent respecting the effect of a subsequent marriage upon a will executed by a married woman; and, as the present will is not within any of the cases named in the chapter on "Wills," it is not excepted from the pro visions of section 1292, and could be revoked only in one of the modes therein specified. In many states it has been held that the statutes which enable a married woman to execute a will have taken away the reason for the common-law rule which held that the marriage of a woman revoked a will previously made by her, and that consequently the rule itself is no longer applicable. v. Jones, 36 N. J. Eq. 163; Ward's Will, 70 Wis. 251; Roane v. Hollingshead, 76 Md. 369. 17 L. R. A. 592; Emery, Appellant (Ro Hunt's Will), 81 Me. 275. In Ohio it is ex. pressly declared by statute that such marriage shall not revoke her will. In this state the legislature has seen fit to adopt a different policy, but has limited the effect of marriage to a will executed by an unmarried woman. It is as useless to conjecture the motives that may have governed the legislature in singling out an unmarried woman as the only person whose will shall be affected by her subsequent marriage, as it is to conjecture why there should be a difference in the effect of a subsequent marriage upon a will executed by an unmarried man and upon one Webb The pro executed by an unmarried woman. It has lature has industriously omitted. conferred upon each the same ability to make vision of section 1300 is the same as section 13 of the Wills Act of 1850 (Stat. 1850, p. 178), and was evidently taken from the revised statutes of New York, and in that state the precise question here presented has been determined in accordance with this opinion. Re_Burton's Will, 4 Misc. 512. See also, Re Kaufman's Will, 131 N. Y. 620, 15 L. R. A. 292. a will after marriage as before, and a woman can, immediately after her marriage, make a will identical with the one made by her before her marriage. The legislature has, however, made these distinctions, and courts have no alternative except to give effect to them. If it had been the purpose of the legislature that the will of any woman should be revoked by her subsequent marriage, it could have readily expressed that purpose in apt words, as has been done by the Wills Act of England (1 Vict. chap. 26), the eighteenth section of which provides that "every will made by a man or woman shall be revoked by his or her marriage.' The same provision is found in the statutes of many states in this country. Instead of so doing, however, the legislature of this state has limited this result to a will executed by an unmarried woman, in language which gives no opportunity for construction. To hold that a will executed by a married woman will, upon her subsequent marriage, be attended with the same result as that executed We concur: Garoutte, J.; Van Fleet, by an unmarried woman, would be to in-J.; McFarland, J. terpolate into the statute words that the legis Section 1298 of the Civil Code has no application. The conditions required by this section are that the testator shall not only have married, but shall also have issue of such marriage, in order to a revocation of his will. The adoption of a stranger in blood is not the issue of the marriage, and cannot be treated as its equivalent. Davis v. Fogle, 124 Ind. 41, 7 L. R. A. 485. Section 1299 is, by its terms, limited to a survival of the testator by the "wife," whereas in the present case it is the wife who has died. The judgment denying probate to the will is reversed. WEST VIRGINIA SUPREME COURT OF APPEALS. Henry H. HORNBROOK et al., Appts., V. Town of ELM GROVE et al. (........W. Va.........) *1. A forfeiture of the charter of a municipal corporation cannot be enforced or taken advantage of in any legal proceeding collaterally or incidentally. That forfeiture must be declared in a proper, direct way. The state can only enforce such forfeiture, as it alone has the right to waive or enforce it. 2. The forfeiture of charters of towns for the causes defined in Code, chap. 47, § 44, must be governed by the principles above stated. Quare, can such forfeiture be declared by any judicial proceeding? 3. A suit to enjoin the collection of municipal taxes, on the ground that they were illegally imposed by reason of want of authority to impose them from forfeiture of the municipal charter, is not wrongly brought, from the mere fact that the town is sued in its corporate name. So bringing the suit does not admit its continued existence. *Headnotes by BRANNON, J. | (April 13, 1895.) APPEAL by complainants from a decree of the Circuit Court for Ohio County in favor of defendants in an action brought to enjoin the collection of certain taxes on the ground that the defendant corporation had forfeited its charter and was not entitled to levy them. Affirmed. The facts are stated in the opinion. Messrs. Erskine & Allison and W. P. Hubbard, for appellants: The legislature not having power to act specially, and the courts having no power to interfere, the provisions of section 44 must be a dead letter, unless when the fact of failure appears in any proceeding or in any way, it also appears that thereby the charter is for feited. The wide distinction between a private corporation and a municipal corporation must be borne in mind. Greenbrier Lumber Co. v. Ward, 30 W. Va. 43; Childs v. Hurd, 32 W. Va. 98. No case can be found which applies the rule applicable to judicial corporations to the forfeiture of the charter of a municipal cor feiture but of ineffectual attempts to become incorporated, and the Illinois case seems to be precisely similar although the facts do not fully appear in the report. The exercise by the court of the power to declare that a municipality had not been created is manifestly a different matter from the declaration of a forfeiture of its franchise. The present case is believed to be fully in accord with accepted doctrine in this country denying judicial power to declare a municipal charter forfeited unless such power is expressly conferred by NOTE.-The concession, or rather the contention, that no direct judicial proceeding to forfeit the charter of a municipal corporation will lie is made the basis of argument in favor of a collateral attack on its corporate existence as a remedy by necessity. The decision is an important if not an entirely novel one on this point. The cases referred to in the opinion of the court as holding that the power judicially to declare a forfeiture of a municipal charter exists shou d be carefully distinguished from cases of forfeiture. The California and Iowa cases cited were not cases of ior-law. See also 29 L. R. A. 445; 35 L. R. A. 745. poration, which is a public instrumentality | matters suggested in this suit as to entitle them formed for public purposes and with respect to institute a private remedy for the redress of to which there is no question of private right, the grievances of which they complain. and the will of the legislature (manifested, with us, by general law) is uncontrolled and supreme. Meriwether v. Garrett, 102 U. S. 511, 26 L. ed. 204; 1 Black, Pub. Corp. $ 63, 425, note. Even in the case of private corporations if the privilege in question is not a grant in the nature of a contract it may be forfeited without a judicial declaration. Galveston City R. Co. v. Galveston City S. R. Co. 63 Tex. 529; Atchison Street R. Co. v. Nave, 38 Kan. 744. The charter of a municipal corporation cannot be forfeited by judicial action. 1 Black, Pub. Corp. §§ 118, 119; 2 Dill. Mun. Corp. 896. The land of an individual may be forfeited for the non-payment of taxes without any inquest. Lerasser v. Washburn, 11 Gratt. 572. 24 Am. & Eng. Encyclop. Law, p. 33; Talbott v. King, 32 W. Va. 6. The question arises whether the plaintiffs or the court, or only the town itself, subject to the control of the legislature, is to be the judge when repairs are needed, what repairs should be made what their extent and thoroughness should be, and how much money should be expended upon them. The town is not required to open or to keep in repair all of its streets. Chapman v. Milton, 31 W. Va. 384. Not only will its discretion not be controlled when it fails to go as far as some of its citizens may deem expedient, but it may also use its own judgment in going farther than they may think right, and in making more extensive repairs than they may deem judicious. Kitchel v. Union County Comrs. 123 Ind. 540; Swamp Land Dist. No 150 v. Silver, 98 Cal. 51. Even as to private corporations the legislature may so express its purpose as to make the A cause of forfeiture cannot be taken adcharter determine on the happening of some vantage of or enforced against a private cordesignated contingency and without any judi-poration collaterally or incidentally. cial proceeding. Brooklyn Steam Transit Co. v. Brooklyn, 78 N. Y. 524; Re Brooklyn, W. & N. R. Co. 72 N. Y. 245; Sturges v. Vanderbilt, 73 N. Y. 389; Dane v. Young, 61 Me. 160. There are many cases holding that upon such default as is mentioned in the statute, the charter is forfeited without judicial action. New York, H. & N. R. Co. v. Boston, H. & E. R. Co. 36 Conn. 196; Com. v. Lykens Water Co. 110 Pa. 391; Bywaters v. Paris & G. N. R. Co. 73 Tex. 624; Green v. Green, 34 Ill. 320; Farnham v. Benedict, 107 N. Y 159; Oakland R. Co. v. Oakland, B. & F. V. R. Co. 45 Cal. 365, 13 Am. Rep. 181; United States v. Grundy, 7 U. S. 8 Cranch, 338, 2 L. ed. 459; Upham v. Hosking, 62 Cal. 251; Craig v. Grant, 6 Mich. 447; Rice v. Ruddiman, 10 Mich. 125; Barkley v. Levee Comrs. 93 U. S. 258, 23 L. ed. 893; Lea v. Hernandez, 10 Tex. 137; People v. Glad win County Suprs. 41 Mich. 647. The fact being admitted that the town of Elm Grove has not kept its roads in repair for more than a year and the legal consequence being the forfeiture of its charter without any judicial proceeding to ascertain that forfeit ure, the town and its officers have no legal right to impose the taxes of which plaintiffs complain, and injunction as prayed by the bill in this cause is the proper remedy to prevent the collection of such taxes. Christie v. Malden, 23 W. Va. 667; Crim v. Philipi, 38 W. Va. 122; Tygart's Valley Bank v. Philippi, Id. 219. Mr. Henry M. Russell, for appellees: Plaintiffs have filed their bill against the town of Elm Grove as a municipal corporation. Even if this were a direct proceeding to forfeit the charter, this method of suing the town was a conclusive admission of the town's existence. People v. Spring Valley, 129 Ill. 169. Equity never enforces a penalty or forfeiture. Craig v. Hukill, 87 W. Va. 520. 43. Greenbrier Lumber Co. v. Ward, 30 W. Va. It would be inconceivable that the law could be in such a shape that whenever a town should proceed against an offender for the breach of an ordinance, should send its collector to its citizens for taxes, or should bring a suit to enforce a contract, the defendants in the proceedings could institute an inquiry into the condition of the town's roads or streets, and the length of time during which there might have been a failure to repair. If a town cannot collect its taxes because it has forfeited its charter, for the like reason it could not enforce its ordinances. Norton v. Shelby County, 118 U. S. 444, 30 L. ed. 187. Judge Cooley, speaking of municipal corporations, says their corporate character can. not be questioned collaterally. Cooley, Const. Lim. 309, 310; 15 Am. & Eng. Encyclop Law, p. 964; 1 Beach, -Pub. Corp. $ 55; Geneva v. Cole, 61 Ill. 397; State v. Westport, 116 Mo. 582; People v. Maynard, 15 Mich. 463; Baltimore & O. R. Co. v. Marshall County Suprs. 3 W. Va. 319; Moore v. Schoppert, 22 W. Va. 282. Municipal charters are at all times subject to the will of the legislature, unless there be some constitutional restraint. Barker Dist. Board of Education v. Valley Dist. Board of Education, 30 W. Va. 430; Mount Pleasant v. Beckwith, 100 U. S. 525, 25 L. ed. 701. The constitution of New Jersey prohibited the passing of local or special laws regulating the internal affairs of towns. Yet the su preme court of that state held that a special law was valid which repealed a city charter. State v. Steen, 43 N. J. L. 542; Boyd v. Chambers, 78 Ky. 140. Brannon, J., delivered the opinion of the court: Henry H. Hornbrook and others, for themThese plaintiffs have no such interest in the selves and all other tax-payers of the town |