128
ing such a charter the State constitutes
the Corporation its agent, for a purely
public purpose, and entrusts it with
authority, which can only be derived
from the State, to confer degrees in
scholarship and learning upon those
found worthy.
THE WESLEYAN CHARTER.
The legislative intent is indicated in
the charter of Wesleyan College, which
provides that the act “shall be liberally
construed for every beneficial purpose
hereby intended.” (Vol. 3, Special
Laws, 472.) The State has been very
careful to treat its colleges precisely
alike in the matter of taxation, and it
is hardly possible that one rule of con-
struction was intended for Wesleyan
and another for Yale and Trinity. But
it is unnecessary, in treating the ques-
tion now before us, to invoke any spe-
cial rule of construction.
The charter in the broadest terms ex-
empts ‘all the property of the College
from taxation. This possibly may
cover the buildings occupied as col-
leges which are non-taxable by virtue
of our settled public policy as declared
in section 3820; but its main purpose
was to exempt all estate and funds in-
vested and held lawfully, i. e., “for the
use of the College,’ including both
principal and income.
THE $6,000 LIMITATION.
The only limitation on this absolute
exemption is contained in the proviso:
‘Provided, however, that said Corpora-
tion shall never hold in this State real
estate, free from taxation, affording an
annual income of more than six thou-
sand dollars.” The contention of the
defendant is that whenever the income
from real estate exceeds the sum of six
thousand dollars, not only the real
estate producing such excess of in-
come, but also all the unproductive real
estate the College may hold, becomes
at once liable to taxation.
We think this requires us to inter-
olate into the charter a limitation it
des not contain. By the original
iarter ‘all the lands and_ ratable
tate belonging to the College, not ex-
eeding the yearly value of five hundred
pounds sterling,’ as well as the estates
of the President and professors, were
freed. from’. rates, etc. It. is not »easy
to determine the precise meaning of
this language, without a detailed exam-
ination of the conditions of 1745 in
reference to which it was used. This
is unnecessary. It is certain that by
this provision it was intended to ex-
empt all the property the College was
likely to own for an indefinite period,
and that the provision served that pur-
pose for nigh a hundred years.
The precise restriction the legislature
of 1745 had in mind is now immaterial.
It was abandoned in 1834; a new pro-
vision in respect to taxation, different
in form and substance, was then
adopted in reference to a new future.
This new provision was intended to be
broader than the old, as shown not only
by the language used, b-- the wider field
of public usefulness opening to the Col-
lege, but also by the controlling fact
that in view of the full exemption of
the College property. i. e., the funds
devoted to public use, the College sur-
rendered the existing exemption of the
Private estates of its President and pro-
fessors.
A RESTRAINT ON THE MODE OF INVEST-
MENT.
The act of 1834 plainly exempts all
the property of the College from taxa-
tion; and the proviso qualifies this
exemption only for the purpose of im-
posing a limited restraint on the mode
of investment. It is not an absolute
limitation to the holding of real estate,
but it is a provision which makes it the
interest of the College to itself limit its
holdings. It is not presumed that the
College will, to any considerable extent,
invest its funds in unproductive prop-
erty, so there is no direct limit to its
holding of such land; but the College
might well be tempted to put all its
funds into productive real estate, and
the proviso directly restrains this ten-
dency by limiting its right to hold real
estate producing more than six thou-’
sand dollars a year, unless it pays taxes
on the excess. If the College finds in
any year that its revenues from land
exceed six thousand dollars, it must
choose between its unlimited exemption
from taxation and its unlimited right
ATT ALUMNI
to hold real estate; if it chooses the
former it must sell so much of its pro-
ductive land as will reduce its income
within the limit; if it chooses the latter,
it must pay taxes on the land instead
of selling it. In this way the State
sought to exempt all funds of the Col-
lege from taxation and through the
potent operation of self-interest to keep
the investment of those funds in real
estate within reasonable bounds.
Counsel for the plaintiff urged with
great force, in further support of this
view, the fact that here the enacting
clause is a total exemption, and a pro-
viso can withdraw from the enacting
clause nothing that is not fairly within
its terms. In speaking of this rule,
Story said: “We are led to the general
rule of law which has always provided,
and became consecrated almost as a
maxim in the interpretation of statutes,
that when the enacting clause is gen-
eral in its language and objects, and a
proviso is afterwards introduced, that
proviso is construed strictly, and takes
no case out of the enacting clause
which does not fall fairly within its
terms. In short, a proviso carves spe-
cial exceptions only out of the enact-
ing clause, and those who set up any
exception must establish it as being
within the words as well as within the
reason thereof.” (United States vs.
Dickson, 15 Pet. 141, 165.)
WHAT: IS 2} NOT
INCOME FROM - REAL
ESTATE.
For reasons before given, we think
that students’ fees, whether appor-
tioned to room rent or tuition, cannot
be treated as income of real estate, and
that land occupied and_ reasonably
necessary for the plant of the College
is not producing real estate within the
meaning of the proviso to the Act of
1834.
sors are exempt from taxation. The
dwelling houses and factories added by
the assessors are also exempt, unless
some one or more of these must be
added to the list returned by the plaint-
iff in order to reduce its net income
from all its other real estate within the
prescribed limit.
SPECIAL ITEMS OF PROPERTY.
Certain questions as to a few items
of property were submitted without ar-
gument; the nature of these questions
is not quite clear. It appears that a lot
on Canner street was sold to one Robert
Brown, a professor in the University
by parole, and the money needed to
build a dwelling house advanced to him;
that he has built and occupied the house
and has repaid a portion of the loan,
but has paid nothing on the purchase
price. This presents a case of property
substantially owned and enjoyed by a
private person, while the title remains
in the College; the lot and house should
be added to the plaintiff’s ‘list. Its
charter does not exempt from taxation
property held for private use. It ap-
pears also that a number of lots have
been leased to private parties on long
leases, the tenants agreeing to pay the
taxes. So far as the town is concerned,
such agreements by the tenants are in-
Operative; if the revenue from these
leases is in excess of the $6,000 derived
from the other real estate, the lots
should be added to the plaintiff’s~list.
It will be necessary for the Superior
Court to proceed to a further hearing
for the purpose of ascertaining these
facts, unless the parties shall agree.
The record does not show any im-
Propriety on the part of the plaintiff in
dealing with its exemption, unless pos-
sibly in the case of the Brown house;
but in order to exclude any false impli-
cation we deem it proper to add that
the charter does not authorize the Col-
lege to hold any property exempt from
taxation for any private use, and does
not authorize any commercial dealings
with its exemptions whether by way of
mere speculation in vacant land, of sell-
ing land on long leases or nominal rents
or otherwise.
This statute was intended to serve a
great public use in pursuance of a most
beneficial public policy, and the con-
struction to be given such a statute re-
quires that the intent shall not be de-
feated either by clear evasion or undue
restriction. :
INSTRUCTION TO SUPERIOR COURT.
The Superior Court is advised to ren-
der judgment ordering the Board of
Relief to strike from the plaintiff's tax
The vacant lots added by the asses-
WHE KLYZ
list all the items added by the assessors
except the “Brown house,” and except
such items, if any, of productive real
estate as it may find to be necessary
to retain in order to bring the: net in-
come from all other real estate within
the sum of six thousand dollars; and
to take further proceedings for the pur-
pose of ascertaining this fact, unless it
shall be settled by agreement of the
parties.
In this opinion the other judges con-
curred.
so ____—_——_-
THE YALE PRESIDENCY.
With an Interesting Opinion as to
Clerical Control.
[Clarence Deming, ’72, in N. Y. Evening Post. ]
The authority and scope of clerical-
ism in the Yale constitution and gov-
ernment have assumed, since the resig-
nation of President Dwight, a promi-
nence, both in fact and in discussion,
which they never had before. For the
first time in some generations “mani-
fest destiny” does not forecast the next
President, and among many suggested
names there is no one upon which
many graduates or, apparently, any
considerable part of the Corporation,
laical or clerical, agree. In fact, mem-
bers of the Corporation, so far as their
opinions have been expressed, say that
the choice will only be made after
much hesitation and difficulty. Young
Yale and Old Yale, the graduates who
want a President who is chiefly a “man
of affairs,” and the graduates who want
an “educational” President, must all be
considered, as well as minor graduate
groups. So far as local opinion can be
observed, it seems now to be drifting
slowly towards the conclusion that the
next President will be taken either
from the old-class type, representing
scholarship and theology, or that a
somewhat radical departure must be
- made, and the next head of the Univer-
sity be a successful business man. The
business President may, of course, be
expected to have a degree of cultiva-
tion, the ‘old-fashioned’ President to
have a degree of executive ability. But
thus far no name has been mentioned
of an available man combining both
traits in high degree, and the fear has
begun to grow that at last the Cor-
poration may feel itself forced to
choose from one type or the other, with
clericalism as the ultimate and deter-
mining factor, in favor of an old-
fashioned head of the University.
Ministerial control at Yale, both his-
torically and practically, has thus be-
come an active and growing theme of
discussion.
That clerical control of the Yale Cor-
poration dates back to the founding of
the College, and was natural, perhaps
inevitable, during the early period of
the New England hierarchy, are famil-
iar facts. The original act of the Colo-
nial Legislature, passed in October,
1701, provided for a body of trustees,
not more than eleven nor less than
seven in number, to “be ministers of
the Gospel inhabiting within this
colony and above the age of forty
years.” In 1723 came an act, for the
most part explanatory, but reducing
*the requisite age to thirty years, and
making the rector of the College a
trustee also—indicating that even in
that remote day the modern trouble
existed of finding within the bounds
of Connecticut clergymen qualified to
govern the College. In 1745 was pass-
ed what the annual University . cata-
logue describes as a “thoroughly re-
vised charter,” which, with a few famil- -
iar amendments, is the existing char-
ter, and confirmed by the State Con-
stitution of 1818. The question often
raised is whether this charter was an
amendment of the legislative act of
170I—so that on points where it is in-
definite or silent the old “clerical” act
stands—or whether it is de novo a
Sweeping, comprehensive, and super-
seding charter.
The question is almost purely one of
legal construction and precedent.
Eighteen ycars ago it was examined by
Simeon E. Baldwin, then and now a
Professor in the Yale Law School, at
present one of the five judges of the
Connecticut Supreme Court, of wide
fame as a jurist, probably as well. quali-
fied to speak on the general subject 2s
any lawyer in the country, and whose
conclusions on the special subject_™may
be regarded as all but final. Those
conclusions, in his own printed words,
are as follows:
“We find the Corporation of Yale
College, therefore, to be made up under
existing laws of nineteen persons: the
President and eighteen Fellows. OF
these eighteen two are constituted ex-
officio, the Governor, and Lieutenant-
Governor; six must have received de-
grees from the College and are elected
for terms of six years by their fellow-
graduates; and ten hold office during
good behavior and elect their own SUuc-
cessors. All the eighteen can vote at
fae eieeupe Of a Bresident. . . =
No qualifications as respects eligibility
to the presidency are, so far as I can
see, imposed by the existing laws, nor
any for the position of fellow, except as
to the six elected by the graduates of
the University, who must themselves
be graduates of the departments.
“The original trustees were mneces-
sarily ministers of the Gospel by the
express terms of the acts of 1701 and
1723; though they were not required to
be of the Congregational faith. Any
Protestant minister could have been
elected by the board, and Rector Cut-
ler evidently did not deem his own in-
tention to take orders in the Church oi
England as incompatible with his right
to remain in office.
“But after 1745 there were no longer
any trustees. At the request of those
then holding that position the office
was abolished and replaced by that of
Fellow of a Corporation clothed with
different powers and limitations. ine
religious qualification attached only to
the trustees, and when they disap-
peared, that, in my opinion, disap-
peared with them. The same, of
course, would be true, also, as respects
the President.”
It will be noticed that Judge Bald-
win does not give a Yale President
voting power in the election of a suc-
cessor, for the apparent reason, stated
later, that. he (the President) “is a
member of the Corporation as Presi-
dent, but he is not a Fellow at all.”
In further amplifying the general sub-
ject, Judge Baldwin expresses doubt
whether the College constitution even
required that the original rector should
be a minister; shows that clerical control
was questioned during the eighteenth
century by high authority, both on legal
grounds and grounds of expediency;
and adds that the only sense in which
Yale has an ecclesiastical constitution
is by implication from the aims of its
founders and the precedents and tradi-
tions of nearly two centuries. To sum-
marize the whole matter, on Judge
Baldwin’s authority, outside: of prece-
dent and tradition, there is no clerical
control of Yale University based on
law either statutory or organic; the
Corporation may contain ten ministers
living inside or outside of Connecticut,
of any sect whatever or no sect, or it
may contain no ministers at all; and
the President, who cannot vote in
choosing a successor, may be clerical
or lay and a member of any religious
denomination or none. 10 the great
majority of Yale graduates who have
accepted in varying forms and degrees
the idea of clerical rule of the Univer-
sity based on mandatory law, the fore-
going facts will seem novel and
strange.
Under permissive law, however, cleri-
cal rule of the early College and later
University has been a fact for two cen-
turies, lacking three years. From 1700
down to July 10, 1872, apart from the
ex-officio State members of the Cor-
poration, no name except that of a
clergyman appears on the list, and since
the latter date there have always been
eleven clergymen and eight laymen—
the latter having no voice in the elec-
tion of a clerical member. Of the
Presidents of Yale, all have been Con-
gregational ministers at the time of
election except two, and the strength of
the ecclesiastical tradition is shown
by the fact that the two—President
Day and Woolsey—though licensed to
preach soon after leaving College, were
ordained ministers at the request of the
Corporation before assuming their
presidential duties.
As to the outworking in practice of
the clerical system in modern times
there is “a wide variance of opinion.
One large group of graduates, includ-
ing many members of the University
Faculties, defend clerical control vigor-
ously. They say that it leaves ques-
tions of policy to the departmental
