holding that the director of a state “institution for the education of the deaf and dumb,” a position for which “[t]here are no fees, perquisites, profits or salary,” occupied an “office of honor”
How later courts described this case
- holding that the director of a state “institution for the education of the deaf and dumb,” a position for which “[t]here are no fees, perquisites, profits or salary,” occupied an “office of honor”
Written by the judges who cited it.
The opinion
Skinner, J., dissenting. By an act of the legislature, approved February 23rd, 1839, certain persons were created a body corporate, by the style of “ the president and directors of the Illinois asylum for the education of the deaf and dumb,” with perpetual succession, power to contract, sue and be sued, have a common seal, purchase, hold and convey real estate, for the purposes of the corporation, and so forth. The legislature expressly reserved the power to alter, modify and change the charter or act of incorporation at pleasure, provided for private donation and public'appropriation to establish and sustain the institution, and for the administration of the affairs of the institution, by a board of directors and their successors. Laws of 1839,162. The legislature, by an act approved February 3rd, 1849, changed the name of the corporation, the term of office of the board of directors, provided for their appointment biennially, by the Governor and Senate, and for the filling of vacancies in the board, by the board of directors. Laws of 1849, 93.
The constitution of this State declares “ that no person holding any office of honor or profit under the government of the United States, shall hold any office of honor or profit under the authority of this State.”
The record admits that the defendant has been appointed, by the government of the United States, marshal of the southern district of Illinois, since his appointment as one of the board of trustees of this institution, and has entered upon the discharge of the duties of the office.
The institution is of a public character, for its uses and objects are public, but the corporation, through which the affairs of the institution are administered, is clearly a private corporation, of an eleemosynary character. Public corporations are such as are established for governmental and municipal purposes, and relate generally to communities, as coimties, cities, towns, &c., and, perhaps, such as are of a strictly public character, and where the government is the sole founder and has the whole interest. Private corporations, although established, wholly or in part, for public purposes, are artificial persons, created by law, endowed with certain powers of maintaining such artificial existence, of performing acts, as persons, and incurring legal liabilities. In such corporations, private interests are in some manner involved, by voluntary donations, by the holding of stock, or the like; although the government may also be interested, or be the principal founder and supporter of the same, by public appropriation. If the corporation is not created for the administration of poliG ical power, or for purposes strictly incidental thereto, without the intervention of individual interests, by donations or otherwise, the corporation, although for public purposes, is a private corporation in law. Angel & Ames on Corp. 9; ibid., Chap. 1, Sec. 1, 2 and 3; Dartmouth College v. Woodward, 4 Wheaton 668 ; Allen v. McKeen, 1 Sum. (Cir. Court) R. 276; U. S. Bank v. Planter's Bank, 9 Wheaton 907 ; Bank of South Carolina v. Gibbs, 3 McCord 377 ; 2 Kent’s Com. 275, 276.
In this case, the act of incorporation contemplates donations by private persons, provides for obtaining the grounds, upon which to erect the buildings of the corporation, by individual bounty, and confers all the necessary powers and franchises characteristic of private corporations aggregate. Nor can it be contended that this corporation may not incur legal liabilities, that judgments may not be obtained against it, founded upon such liabilities and satisfaction obtained out of the corporate property.
All private corporations emanate from the sovereign power of the State, but they have a separate legal existence, may act as individuals, to the extent of the powers conferred by the law of their creation, and those lawfully administering the affairs of such corporations are, in no proper sense, municipal officers, or persons holding office under authority of the State. The trustee, in this case, however, appointed, is an officer of the corporation, having no powers appertaining to the political government of the State — an officer of the corporation, and not of the government.
For the reasons stated, I am unable to concur in the opinion of the majority of the court; and I purposely avoid intimating any opinion as to the extent of the operation of the clause of the constitution, before quoted, beyond the necessities of the case presented by the record.