
    *Currie’s Administrators v. The Mutual Assurance Society.
    November, 1809.
    1. General Assembly — Powers of, — How far the General Assembly has power, from time to time, to annul or alter acts of incorporation.
    2. Mutual Assurance Society — Hembers Bound by Act of Assembly. — A member of the Mutual Assurance Society against fire, is bound by an act of Assembly varying the terms of the original act of incorporation; such act being passed at the instance of a legally constituted meeting of the said society; although that individual member was not present at the meeting.
    3. Corporations — Election of President. — where an act of incorporation provides that there shall be "three directors, out of whom a president shall be chosen;” it is sufficient if the president be elected by a legally constituted meeting, and at the same time with the other directors; without having been previously appointed a director.
    This was an appeal from a judgment of the District Court of Petersburg, rendered in favour of the Mutual Assurance Society, against James Currie, for 291 dollars and 73 cents, being the amount of a quota required from the defendant, (as one of the persons holding buildings in a town insured by the said society,) by a resolution adopted on the 25th of February, 1805, at a. meeting of a board of directors of the said society; which resolution calling for the quota, was signed by “Al. M’Rae, President M. A. S.'”
    By the principles of the original law organizing the society, passed in 1794, houses-situated in the country and in towns were mutually assured: every member of the society, whether residing in town or country, became insurer for every other member, and the property insured was mutually pledged to make good the losses, happening accidentally by fire, within the terms of the policy. But experience having evinced that the losses happening in the country bore no proportion to those in towns, the legislature, on the 29th of January, 1805, at the instance of a majority of the members, of the society either personally present or represented by members of the General Assembly, (as authorized by an act of the 23d of January, 1800,) passed another act, separating the interests and risks of the inhabitants of the country, from those of the towns, so that the countryman was no longer liable for losses by fire occurring in towns, nor the townsman for losses occurring in the country.
    Under the original act of incorporation, the society were authorized to adopt rules- and regulations for their government, which they were at liberty, from time to time, to-alter and amend,  In pursuance of those powers, a regulation was adopted, by which the business of the society was to be *managed by a president and fourteen directors; but by the act of 1805, above mentioned, (? 9,) it is declared, that there “shall be in future only three directors, out of whom a president shall be chosen;” provided that the society should not be prevented from “appointing more than three directors, if at any general meeting it should be adjudged that a greater number were necessary for the well ordering of their affairs.” Shortly after the passage of this law, and long before the requisition in question was made, Alexander M’Rae was elected president of the board of directors, and three other persons, on the same day, were appointed directors. It does not appear that the president had been previously chosen one of the directors, out of whom he was,to be taken ; but he was certainty appointed by the same electoral body by whom the directors were chosen.
    After the election of the president and directors, a requisition, signed by the president, was made, calling on the town members for half a quota, but not on the country members, Currie resisted the payment of this quota on two grounds; 1st. Because the requisition on which it was founded, was not made under the original charter, but under a subsequent act, which attempted to increase his risk without his consent; and, 2dly. Whether that subsequent act be, or be not, obligatory on him, the president of the board of directors was not chosen out of the directors, according to the act under which he was appointed; and, consequently, there could be no legal call of a quota. The District Court have judgment for the Mutual Assurance Society, and Currie appealed to this Court; but, pending the appeal, he having died, it was revived in the name of his administrators.
    George K. Taylor and Call, for the appellant,
    as to the first point, argued, that the legislature could not lawfully increase Currie’s risk without his consent.
    Although the original act of incorporation was, in form, a law, yet in effect, it was a mere compact or agreement. It *was not uniform and universal; it did not compel every person to become insured; it was not mandatory; but left every person at liberty to agree to, or reject the scheme. [They cited 1 Bl. Com. 44, to shew the definition of law.]
    A charter is not a law, but a compact between the sovereign authority of the state, and a citizen. In England though the parliament enacts every law; yet it grants no charters. These are granted by the king, who cannot at his mere pleasure revoke them ; but they remain unalterable as fate, unless the corporation do some act, or are guilty of some mission which, according to established rules and principles of law, produces a forfeiture. And then it is not competent for the king (one of the contracting parties) to determine the question, but belongs exclusively to the tribunals selected to decide all other controversies respecting contracts.
    If it be insisted that the legislature, in this case, did not alter the contract, against, but with the consent of the other party ; it may be answered, that the proxies who voted for this change, were delegated to give effect to the charter as it was; and that a power to support is not a power to destroy.
    No notice of the contemplated change was given to the minority; and, even if it had, the act of the majority could not bind and dissentient, in relation to a change in the constitution. The members of the society composed one corporate body for the performance of acts within the limits of the charter; but beyond those limits there could be no corporate act. 
    
    It is a universal principle in the law of insurance, that to change the nature of the risk after the policy is effected, unless with the consent of the insurers, is to determine the contract.
    
    The terms of the original charter, which authorized the society to “conclude upon such rules and regulations as they' might judge necessary,” and “to alter and amend such rules,” did not give them authority to change the constitution itself. They only •related to fixing the amount of the quotas, and to the general conduct of the society.
    ^"Though this judgment was founded on a call for a quota, which tne society might always rightfully make, yet the call is not on the whole society according to the original charter, but on a part only.
    The act of 1794 being a contract between the state and the original adventurers, the obligation of such contract cannot be impaired by the state without a violation of the constitution of the United States. The obligation is impaired, when the legislature say that repartition shall be made among a part, and not the whole of the members, as was prescribed by one of the fundamental rules of the original charter.
    2. There was no legal president, or board of directors; consequently there could be no legal call of a quota.
    By the terms of the act of January, 1805, there were to be “three directors, out of whom the president shall be chosen.” It was indispensably necessary, therefore, that the president, at the time of his election, should have been one of the directors. This not being the case with Mr. M’Rae, his election was void.
    The appointment of directors was but one step towards constituting a legal board; for, until that was over, it was uncertain who would be president, or who directors. During the interval between the choice of directors, and that of president, they are incapable of action; for they could not by their own energies mature their character; but it depended upon the agency of the society to perfect it, by the appointment of a president. The appointment of a president was a sine qua non or indispensable requisite to complete their character, and give them capacity to act; and, until that was done, every attempt to form a board or do any corporate act was a usurpation, and the proceeding void. It is like the case of a lease made by a person appointed bishop of a diocese, who was never ordained or consecrated. For want of his ceremony, he is no bishop at all, and the lease void, though confirmed by the dean and chapter. 
    
    A corporation, during the vacancy of its head,, can do no act but appoint one. 
    
    *The directors were not officers de facto, whose acts in certain cases may be valid; but usurpers.
    An officer de facto is confined to ministerial or judicial acts, mere matters of office, which he is compellable to perform; or in which a stranger is concerned, and had a right to, or paid a consideration for. He cannot exercise his will, or do any legislative act. The acts which an officer de facto may do, must be such as are absolutely necessary for the preservation of the society; such as are expedient to p revent its final dissolution: and not such as contribute to its convenience only, 
    
    The necessity of the call, in this case, is not proved. It was therefore an abuse of power to make it, which the Court will not enforce. Nor was it necessary for the preservation of the society; for that might have existed without it, till the next annual meeting.
    Mr. Hay, who began the reply to the argument of the appellants’ counsel,
    remarked, that the record presented two questions, both of which ho conceived might be answered in the negative.
    The first question, said he, is this: “Did the failure of the society to make Mr. M’Rae, by a formal election, a director, before they elected him president, invalidate the requisition for a half quota, made on the 25th February, 1805.”
    The second is: “Was the requisition which was made on the owners of town property only, void on that account?”
    The solution of the first question, he said, depends on the act of 29th January, 1805. This act declares, “that in future there shall be only three directors out of whom a president shall be chosen.”
    I admit that Mr. M’Rae, was chosen president without the formality of being previously chosen a director. On the part of the appellant it is conceded, that in every other respect the election was regular and' legal, but it is contended *that, as Mr. M’Rae was not first chosen director, and then president, the election was substantially defective.
    The difference between the course actually pursued and that presented by the letter of the law, is a difference in form only. If this position is correct, the inference that the election was valid, it is presumed, will not be controverted.
    Before we proceed to establish this position, it is proper to explain what is meant by the terms, “an election substantially defective,” and “an election defective in form only.”
    If the law had required that a director should be a citizen, or one of the insured, and the society had elected an alien, or one not insured, the election would have been substantially defective, because the act of making, an alien or a stranger to the institution a director, would not have made the •former a citizen, nor have made the latter a party insured. But where the law, as in this case prescribes, that “a president shall be chosen out of three directors,” the act of choosing a president makes the man chosen a director, and gives the qualification required.
    To illustrate this idea, let us suppose that the law had been literally obeyed. There would have been then four elections; three of directors, and a fourth of a president chosen “out” of the directors. ■ But, according to the course pursued, there were three elections only; one of a president, eo nomine, and then two of directors. It is obvious that the result is precisely the same. The effect contemplated by* the law is attained. A president and two directors are appointed. This is precisely what was intended. The society did the act prescribed. They went to the place, indicated by the law, and erred, if they did err, only in taking a shorter road than that which appeared to have been marked out for them. The defect, then, if there be one, is in the manner, in the form of the proceeding, and not in the result of that proceeding.
    Would it not be preposterous, Mr. Hay asked, to suspend or to embarrass the proceedings of an institution so important to the community, because the society, in occupying the ^ground allotted to them by law, had advanced to it by taking three steps instead of four.
    The law says, “there shall be three di-1 rectors, out of whom a president shall be chosen. ”
    It is obvious that the president was to be a director; and it is equally clear, that the president was to be the principal di^ rector, and nothing more.
    Now let us suppose that the law had said, “three directors, out of whom a principal director shall be chosen;” would not the appointment of a principal director, and then of two other directors, have been a. rational and substantial compliance with, this requisition? If it would, the election in the present case is good; for, whether the head of the institution is called president, or principal director, must be regarded as a circumstance totally immaterial.
    In the performance even of covenants, the law regards substance only. If A. binds himself by an obligation to B. to execute a deed for conveying an estate in land to him, for such uses as he should indicate, by writing under seal; B. by such writing, declares that the conveyance shall be made to him, to the use of C. in fee-simple, and A. instead of conveying to B. to the use of C. conveys to C. immediately, and in the first instance, the contract would be evert at law substantially performed. The reason is obvious. The thing required to be done would have been done. If the conveyance had been made to B. to the use of C. the statute would have executed the use, and C. would have been seised in fee. A. therefore in conveying to C. directly, performed the act really intended by the contract, and the only difference is, that the estate passed from A. to C. in a straight line, and did not pass circuitously through B.
    But even if I am wrong in my construction of the act of 29th January, 1805, the resolution adopted by the society, on the very next day, is sufficient to justify this election, even in the opinion of the most zealous advocate for form. This resolution declares, that “there shall be three directors and a president.” The words in the law, directing *the appointment of a president, “out of three directors,’r are not inserted. If the question then depends on the resolution, the ground of the objection here examined is placed entirely out of view.
    But it may be objected, that though the general meeting might, under the 24th section of the act of 1805, increase the number of directors, they were still bound to elect a president out of the directors.
    This objection is easily repelled. By the original law of incorporation, (of December, 1794,) the society were not directed to appoint either a president or directors. They were empowered to appoint as many agents as they thought the business of the institution required, and to name them as they pleased. The power thus given they exercised. They first appointed, fifteen agents, calling one of them president, and the other fourteen directors, and after some time, authorized the president and four directors to constitute a board for conducting the business of the society.
    The resolution of the 30th January, 1805, is manifestly in conformity to the law of 1794, and the practice under it; and the election of M’Rae, is in conformity to that resolution. The election therefore is good, unless the law of December, 1794, is quoad hoc repealed by the act of the 29th January, 1805.
    But the appellants themselves say, that the law of 1794 was not repealed; they contend, that it could not be repealed. It is not, say they, a law, but a contract, and therefore beyond the reach of legislative control. If, then, the law of 1794 is not repealed, and the election is made in conformity to one of its provisions, this part of the subject is disposed of. But I will not avail myself of this argument intended by the appellants’ counsel for a very diiferent topic, and I will shew that the act of 1794 was not repealed.
    By this act, the power of appointing officers, and of regulating elections, is given to the society. The 24th section of the act of 1805, shews that this power was not meant to be taken away. A president and two directors, it is true, are ^mentioned, and their appointment is prescribed; but it is expressly declared that nothing therein contained, shall be construed so as to prevent the society from increasing the number of directors, whenever they might think it expedient to do so. The fair inference seems to be, that the legislature wished only to make an experiment with three agents or managers, leaving it however in the power of the society to act as heretofore, if the experiment did not answer the design.
    The argument is rendered more forcible by this fact, which, though not stated in the record, may be relied on, because it is authenticated by the history of the Mutual Assurance Society, as it is exhibited in our laws. The law was passed on the 29th January, 1805. On the next day the resolution was adopted. By whom? the very men, who had on the preceding day passed the law. This is the fact to which I allude. The members of the General Assembly are, ex officio, the representatives of the unrepresented subscribers in their respective Counties. When, therefore, on the 30th January, 1805, they passed a resolution, in exact conformity to the constitution, as exhibited in the law of December, 1794, it is hardly to be supposed that they considered this very law as repealed by the act of the preceding day.
    This contemporaneous exposition has been always highly regarded in this country. A very striking instance is furnished by the construction put on the 14th section of our state constitution ; a construction to which it is manifest the words of that section reluctantly submit, but to which they have been forced to yield, because it was fixed upon them by the persons who had framed the constitution.
    The 14th section alluded to, says, that “the two houses of Assembly shall, by joint ballot appoint Judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty, Secretary, and the Attorney-General, to be commissioned by the Governor, and continue in office during good behaviour. In case of death, incapacity, or resignation, the Governor, with the *advice of the Privy Council, shall appoint persons to succeed in office, to be approved or displaced by both houses,”
    The first sentence of the paragraph provides for the immediate appointment of the Judges. The old government being dissolved, there was of course an end to the judiciary establishment, which formed a part of it. The next sentence of the section provides, that in case of death, incapacity, or resignation, the Governor, with the advice of Council, shall appoint persons to succeed in office, to be approved or displaced by both houses. The plain meaning of this sentence unquestionably is, that although the first appointments, from the pressure of the times, were made by the Assembly, vacancies were to be filled by the Governor, with the advice of the Council, by the appointment of persons who were to be approved or displaced by the Assembly. The power of approving or rejecting persons appointed by the executive is the only power given to the Assembly ; yet the uniform practice of the legislature, unquestioned by the executive, has been to disregard the appointments made by the executive, and to appoint, whenever they thought proper, persons nominated by themselves alone, without giving any vote for displacing the officer appointed by the executive, or waiting for any farther or other appointment by that body. This, I conceive, to be an erroneous exposition of the constitution; but it was adopted by those who made the constitution itself, and may now be regarded as completely in-grafted in it.
    There is a principle, or rather rule laid down in the British adjudications, on the subject of corporation elections, which merits the attention of the Court. It is said that the acceptance of a new charter does not abolish the right of election under the first. (See 26 Vin. 344, Burr. 1656, 1661.) If this position be law, its application to the present case is obvious, and its effect decisive.
    It is also laid down to be law, that an election under a by-law is good, although the charter of incorporation may prescribe a mode of election different from that directed in *the former. I confess that this doctrine does not seem to me to be perfectly compatible with some of those principles under the influence of which so many charters were once forfeited, and so many corporations declared to be dissolved. But the Court, by referring to 1 Stra. 314, and 2 Kyd on Corporations, p. 200, will find the doctrine which I have stated. If this doctrine be correct, its application also must be obvious to the Court.
    I will take leave here to remark, that the principle contended for by the appellants’ counsel goes farther than they have chosen to acknowledge. They object, it is true, to the requisition only. They have no occasion to go farther, and they keep out of sight, as far as they can, the inference which must follow the admission of their objection. If the requisition is not available, because the election was irregular, every other requisition, every other act of the president and directors chosen on the 30th January, 1805, is equally ineffectual and void. In fact the corporation is dissolved. See 1 Black. Com. 485.
    Thus, if the argument be correct, those who contend that a contract is sacred and cannot be touched by the legislature, are advocating a principle which destroys, at one “fell swoop,” every contract made between the society and its members.
    This doctrine of dissolving corporations, in consequence of misconduct in their officers, to whatever extent it may have been carried in England, is not admissible here. The position countenanced in many decisions, is, that if a corporation refuse or neglect to appoint such officers, as they are directed by their charter to choose, on the day prescribed, the corporation is dissolved. This is not applicable to the case, to the institution, or to this country.
    In the present case there was neither refusal nor neglect. The corporation, certainly intended to comply with their charter. Their failure, if any failure occurred, was certainly unintentional. If the members composing a corporate body, peremptorily refuse or wilfully neglect to appoint their officers, at the time prescribed, their conduct may perhaps, *with some appearance of propriety, be regarded as a voluntary surrender of their charter. But where there is only a mistake, the principle does not apply even in England. It is there uniformly admitted, that a mayor de facto, is competent to the performance of every official act. The person in office is presumed to be duly elected until he is actually ousted by a judgment in an information. 12 Mod. Rep. 253; 6Vin. 296. So far has this principle been carried, that where there was a verdict and a rule for entering up judgment against a mayor de facto, which rule would be absolute in four days, the Court refused to award a mandamus directing the corporation to proceed to the election of a mayor, the office not being considered as vacant until the judgment of ouster was actually pronounced. 3 Burr. Rep. 1386.
    A rule tending to destroy, or even to suspend for a time, so important an institution ought not to be extended farther than the obvious import of the terms in which it is expressed plainly requires. The failure spoken of in the books, is a failure as to time: the failure here charged, relates to manner only. It is not said that a president was not appointed until it was too late. It is objected only, that he was appointed without having been previously chosen a director. The distinction between a deviation from the law, as to time, and a deviation as to the manner of an appointment is obvious. If the chief officer of a corporation is not appointed when his predecessor goes out of office, the corporation may, with some plausibility, be said to be necessarily extinct. There certainly is a moment at which it cannot perform its functions; and the English books say, that its capacity cannot be revived. A new charter is the only remedy. But where the election is made, where the officer is appointed, no such disability ensues, and therefore no such effect ought to be produced.
    This high prerogative doctrine, which has been abolished even in England, b3r express statute, has no sort of analogy to the political institutions of this country; and therefore ought not to be regarded. The convenience and welfare of many ought not to be suffered to depend upon the integrity or *attention of a few, unless that dependence necessarily results from the nature of the institution in question. The welfare of the people of Virginia must necessarily, in a great measure, depend on the patriotism and wisdom of their representatives; but it would be absurd that the police of a populous city, should be suspended or destroj'ed, because an appointment which ought to have been made on Monday was made on Tuesday, or because an election which ought to have been finished by one o’clock, was not concluded until two. The mischief would be incalculable. The debts due to and from the corporation would be extinguished, and its property acquired at a great expense, for schools, work-houses, &c. would revert to the original proprietors. "Such a doctrine grew up and flourished in the time of Charles II. but it was found to be too rank in Great Britain, and was therefore cut up by the roots. It would be folly to transplant it here.
    This doctrine, even if generally admitted, ought to be excluded from this particular case. The Mutual Assurance Society unquestionably constitute a corporate body; but it is a corporation of a peculiar kind. The society is formed for the express and sole purpose of making contracts both general and permanent. The above doctrine, therefore, even if applied to corporations, whose powers are confined to their own local business and affairs, is not applicable to one, whose transactions are coextensive with the state, and whose existence must necessarily be of same duration with their contracts. Strange, indeed, would it be, that the society should avail itself of its own neglect to extinguish its own contracts.
    But if M’Rae was not duly elected, he was not a usurper. He was at least a president de facto. A usurper is a mere intruder; one who exercises the functions of an officer without any pretence of right, without even the form of an election. An officer de facto is one who has been in fact appointed, but in whose election there is some irregularity or defect, which being proved in an information in the nature of a quo warranto, would justify a judgment of ouster against him. 2 Stra. 1091; 1 Kyd on Corp. 451.
    *JSTow the acts of an officer, of a mayor de facto, are good. A prosecution against him makes no difference. Until judgment of ouster is pronounced, his acts are valid, and his right to the office cannot be questioned except in a regular prosecution against himself. 16 Vin. 113; 4 Com. Dig. 153; 1 Kyd, 312.
    The policy of this doctrine is obvious, and its influence is general. In some cases it is admitted by the common law, and in some it has been expressly adopted by statute. At common law the acts of an administrator improperly appointed, of an administrator de facto are good. 3 Bac. Abr. SI. And by statute, (see Virg. Laws, 1 Rev. Code, p. 58, \ S,) the same principle is expressly adopted as to clerks, sheriffs ■and magistrates.
    Mr. Hay then proceeded to the examination of the second question, and contended that the requisition of the half quota, though confined to the town subscribers only, was not for that reason void.
    The counsel for the appellants contend, said Mr. Hay, that the legislative- act which incorporates the Mutual Assurance Society, is not a law, but a charter, and that a charter is a contract between the sovereign or state and the grantees of the charter, unchangeable but by mutual consent.
    Having stated these premises, the appellants’ counsel very logically proceed to the conclusion, that the act of 1805, which .separated the town from the country, is repugnant to the law or charter of 1794, under which all the subscribers wherever situated, in town or country, entered into a contract of mutual assurance.
    They further contend, that the act of 1805, under which the requisition was made is void, because it changes the contracts made under the law of 1794, and because by the constitution of the United States, no state can pass any law impairing the obligation of contracts.
    This is the substance of the arguments for the appellants fairly stated. To both of these arguments one remark is applicable. The act of 1794 is called a charter; but the act *of 1805 is called a law. This difference in the denomination of the two legislative acts, which seems to be made without any design, is a stroke of great policy. If words are properly called things, names, especially in legal science, may with still greater propriety be called so. This truth is exemplified in this case. By calling the first act a charter, and the second a law, the counsel for the appellants thought that they secured to themselves the power of declaiming against a violation by law of chartered rights. But it is too clear to be disputed, that if the act of 1794 be a charter, and I conclude that it is, the act of 1805 is a charter also, by which the first is amended; and what is more, amended at the praj'er and application of the incorporated body. How much is the force of these arguments already diminished by thus calling the acts of the legislature by the names which really belong to them?
    But we will examine separately the two arguments just stated. The first assumes a point, which cannot be conceded. A charter is not a compact between the state and the grantee of the charter. On the part of the state there is no contract express or implied. The state is not bound either to give to, or to receive, to do, or to abstain from doing, any thing. On the part of the society, there is no obligation to the state. On what ground, then, can it be said that there is a contract, when neither of the parties enter into any sort of obligation. The idea is absurd. The real character of the act of 1749, is this; it is in truth a charter of incorporation; a grant of certain rights for the benefit of the grantees only; a law authorizing certain persons to become insurers for each other, and to adopt measures adequate to the accomplishment of their plan.
    The propriety of this definition, or rather description of the act of 1794, cannot be controverted. It is collected from the law itself. How far this charter, or any other, lies at the direction of the legislature, I will not stop.to inquire. But it is manifest that the question is essentially different from that which relates to the control of a legislature over its contracts.
    *Here there was no contract; but a grant only. Over grants the legislature have exercised a control. The Court will remember the case of the lower James River Company. They were regularly incorporated; but the legislature had been deceived or were mistaken in a very important point; and, according to the charter, as it stood, the company, who were to be indemnified by a toll for deepening the river, would have received toll for vessels to which Rocketts was accessible without the aid of the company. On proof of this fact, the legislature, without ceremony, repealed the law as far as the mischief extended, by exempting from toll many whom the charter bound to pay it. - The propriety of this interference was never questioned, at least in Court, although the company had incurred considerable expense, and large quotas had been paid by the subscribers. The money paid was sunk, and in fact the scheme abandoned, by general consent. The question was decided in favour of the last law, by the deliberate judgment of impartial men. The subject was very generally, though calmly discussed; and the company were, I believe, at length convinced, that their chartered rights were not quite so good, as the natural rights on which their charter had encroached. Nothing but this conviction could have prevented a legal investigation and decision. The society was composed of men who had wealth and influence, and many of them, at least, had no sort of objection to a prosecution, which afforded a reasonable hope of procuring a judicial condemnation of a legislative act. I mention this case to shew not only the opinion of the legislature, but the general opinion of the people.
    But it is not necessary for me to contend that the legislature possess the power and control which they exercised in- this instance. The case covers more ground than my present argument requires. The proposition for which I contend is simply this; “that where the legislature grant a charter to an incorporated body, that charter may be altered by the legislature at the prayer of the corporation itself.’’ Admit, for a moment, that the charter was a corn-pact, the ^proposition remains equally true. The parties that is, ' the state and the corporation, had a right to alter it bjr mutual consent. That consent was given. The society in their memorial suggested the identical alterations established by the law of 1805.
    But it is objected that the corporation did not unanimously propose these alterations, and that every member of the society, like the members of a Polish diet, had a veto on the proceedings.
    In the first place, it mav be answered, that in the memorial no notice is taken of any exception or dissent'; nor does the fact of dissent on the part of any member appear in any part of this record. The Court cannot presume such in fact.
    Secondly; It is not probable that any objection was made. It would have been scandalous to have made it. The losses in the town were so much heavier than the losses in the country, in proportion to the sums insured in each, that it was palpably unjust to continue the union longer. The proposition was as clear as arithmetic could make it.
    But, in the third place, admitting the fact alleged to be true, it is unimportant. A majority proposed the change, and a majority had a right to bind the rest. This proposition is very fully supported by 3 Bac. Abr. 16, and Kyd on Corp. 401.
    It may be said, however, that a majority may bind the minority only in cases arising under the charter as it stands, and not in a measure which affects the charter itself. This certainly would be a very rigorous and unreasonable doctrine. A change approved by ninety-nine, is not to be adopted because it is opposed by the caprice of one I
    It is not only unreasonable in itself, but unfounded in law. The argument is obvious. A corporation may be dissolved by a surrender of its charter. For instance, the mayor, aldermen and corporation of a city may surrender their charter to the government, and the people will be bound by its acceptance. Now if a corporate body can *make a surrender for all the inhabitants of a city, surely a majority of the corporation may consent to an amendment.
    From this doctrine, what inconvenience can result? There is no room for declamation here. By this doctrine chartered rights are not laid at the feet of legislative despotism. If no alteration is made, but at the instance of a majority of grantees, chartered rights are safe. It is idle and visionary to suppose that the grantees will conspire against themselves.
    The answer to the second argument is equally obvious and conclusive.
    The objection is, that the act of 1805 is void according to the Constitution of the United States, because it impairs the mutuality of the contract between the various persons insured.
    If it can be proved that the change which was made, I mean the separation of the town from the country, might have been effected if this law had never been made, the objection founded on the constitution, must be considered as unavailing.
    At common law the power of making bylaws is an essential ingredient in every incorporated association. 1 Bl. Com. .476; 2 Kyd, 100. This corporation, therefore, if there be nothing in the original charter which prohibits it, had a right to alter the rate of insurance, if it bore unequally on the members of the society, or to adopt any other measure calculated to produce the same effect. The society, instead of altering the rate of insurance, struck at the root of the evil, and without making calculations, which however correct then, might not afterwards apply to a different state of things, separated the interests of the two great classes of the insured.
    The act of 1794 contains no such prohibition. On the contrary, they are clearly authorized to act according to their own discretion. By the 2d and 4th section of the act of 1794, the subscribers are empowered to examine the system delineated in the law, to establish such rules and regulations *as they might deem expedient, and to alter them at pleasure. By a fair construction of these sections, the society were authorized to do that which has been since done, and the doing of which gives rise to the present controversy: and there can be no doubt, that if the society, seeing the probability of the events which have since actually occurred, had then divided the town and country interests instead of attempting an apportionment of the rate of insurance, the legality of their act would never have been questioned.
    I deem this observation to be conclusive. The words of this law are different from those generally used. Here the members are authorized not only to establish and alter regulations, but they are required to “examine the system,” and then to establish regulations. Why were they to examine the system, unless after that examination they were at liberty, by their regulations, so to modify it as to make it most conducive to the attainment of the great object of the institution?
    But what is the contract which is impaired by the law of 1805, and which law is therefore unconstitutional and void?
    The idea of a contract between the state and the society has already been exploded.
    The contract is only between the individual subscribers. It has two parts; the first, to pay the quotas required, is implied; the second, giving a lien on the property insured for the quotas, is expressed. This is the whole contract. How is this contract effected by the act of 1805? The members are still liable to pay the quotas required; the property insured is still bound for those quotas; and the money raised, is devoted to the object indicated by the law — reparation of losses by fire. The only difference is, that the town quotas are applied to the indemnification for the losses in town, and e converso the country quotas for losses in the country. Each individual is as certain of indemnification now as he was before. The substance of the contract is untouched ; and though all the subscribers are not now bound to each, yet the most perfect reciprocity is maintained, ^because now each subscriber is not bound to all. In other words, if the country subscribers are now released from all responsibility for town ‘losses, on the other hand, they are deprived of all claim for contribution upon the towns. I repeat, therefore, that the substance of the contract is untouched; the benefit contemplated by the contractors, is as much within their reach as ever, and that it is absurd and irrational to contend that the obligation of a contract is impaired, where every man is bound as fully and effectually as he was before ; especially when it is recollected that by an express provision, every individual dissatisfied with the institution may retire whenever he thinks proper.
    This measure originated in a suspicion, that the country members paid more than their fair proportion of the losses. Inquiry-converted this suspicion into belief. Calculation proved, that though their losses were only two-sevenths of the whole, i. e. 20 dollars in 70, they yet paid two-fifths, i. e. 28 dollars in 70. This disproportion operating on millions instead of tens, struck the most common observer, and justified the clamour which was raised against the institution. All agreed that the evil ought to be redressed. The only question was as to the mode. Redress might have been obtained by lowering the premiums in the country, or raising those in the towns. But precision, exact equality was not attainable. If either of these measures had been adopted, time would probably have shewn that the calculation had not been correct. It was wise, therefore, to strike at the root of evil, and to prevent the possibility of controversy by the division which has been made.
    A town subscriber is the last person who should murmur at this arrangement. Every day losses in the towns become more improbable. No wooden houses are built; and those which are built of brick are rendered daily more secure against fire.
    The act of 180S, therefore, does not impair the obligation of the contracts made under the act of 1794; on the contrary, maintaining the contracts in full force, in every' *point of any consequence, it places the parties on the footing of exact equality and justice.
    Even if the contracts in question were in some degree changed by the act of 1805, the 10th section of the • — — article of the Constitution of the United States, could not be brought to bear upon the subject; because in the first place the obligation of the contract is not impaired, and in the next, the clause under consideration could never have been intended for a case of this description. The object was to prevent the states from passing laws, as they had done, affecting contracts between individuals; such, for instance, as making lands a tender in payment of debts, or suspending executions; but not to prevent a legislature from changing a charter at the request of the persons chartered. Suppose, when this section was submitted to the convention, a proviso had been proposed, excepting from its operation cases like the present; would not this proposition have been rejected, on the ground that it was unnecessary, the point excepted not being within the purview of the section?
    The Court will see, that on several occasions the Mutual Assurance Society have acted under the construction here given to the act of 1794 ; and the propriety and validity of their acts never have been yet questioned. At one time they exempted from sale all property but that which might be thereafter subscribed for, and at another released all those who chose to give up the premiums paid, and abandon the society.
    Mr. Hay then stated several other cases calculated to shew that the society had uniformly, and without opposition or question, acted under the construction of the act of 1794, which he had before endeavoured to establish.
    Mr. Hay remarked, that the objection, which states that the risk had been increased by the act of 1805, was manifestly the result of misapprehension. The law had no effect either on the elements, on the habits of the people, or on the situation of the buildings. On these things, and *these only, the risk depended. The act of 1805, therefore, left the risk where it was before. Nor did it even affect the indemnification. The loser is as secure of redress now as he could have been if the law had never passed.
    He then concluded by saying that he had hitherto argued on a supposition that there was a contract between each member of the society, and all the others. This seemed to be the idea which the legislature entertained; but in truth it is not correct. The contract is contained in the policy, and to every rational or substantial purpose is a contract between each individual, and the society in its corporate capacity.
    [Mr. Randolph, on the same side,
    argued the cause at great length, and with great ability; but the opening argument of Mr. Hay, and the concluding one of Mr. Wick-ham, presenting the subject in every possible view, we have been compelled, in order to prevent repetition, to insert those arguments only.]
    Mr. Wickham, in conclusion.
    The counsel for the appellants have insisted that the judgment of the District Court is erroneous on two grounds.
    1st. That the Legislature had no right to increase or alter the risk of the appellant without his assent.
    2d. That admitting this power to exist, the call for a quota has not been made, in conformity to the act of Assembly, by' a president and directors duly qualified.
    The terms of the first proposition, as laid down by them, are in some degree vague and indeterminate. The word “risk” is applicable to the appellant either as an individual, or as a part of the corporate body. His risk, as an insured individual, is not changed by the act in question; as a member of the body insuring, it may, and must vary according to circumstances, by the increase or diminution of the fund, the accession of new members, or dropping off of old ones, the raising or lowering the premium for new ‘‘'members, and in various other ways. The words ‘ ‘without his consent,” may apply to him as an individual or a member. If in the former character, he is bound by the acts of the leg-. islature ; if in the latter, by the regulations of the corporate body. No doubt, however, they meant his individual assent, and that the fundamental laws of a corporate body cannot be changed without the assent of each member actually given.
    In the present instance, they are changed by the authority of the government, and with the assent of the corporate body in its corporate character, but not that of each individual member.
    It is admitted, on the part of the appellees, ■that, as a corporate body, they owe their existence to their fundamental laws and cannot change them.
    I will examine the power of the legislature on three grounds; 1st. On general principles; 2d. The Constitution of Virginia; and, 3d. That of the United States.
    1st. On general principles.
    The supreme power of a free government, cannot change its own organization. If, for instance, the legislature consists of two branches, one cannot vote the other useless and act without it, nor can the legislature annul the powers of the executive body. By such a change the government would no longer be the same, and a revolution would be effected.
    But in every country, whether free or not, the government must have the power of calling forth the resources of the state, of commanding the persons and property of its citizens as the public exigencies may require, and occasionally their regulations must embrace only a portion of the community. Laws may be either general or particular; may apply to all the citizens, to particular classes or to individuals. In time of war, for example, they may order out all the militia, or that of particular districts, and may impress the property of individuals. Laws establishing roads, *ferries, and mills, frequently affect the property of few, and sometimes single persons, and acts divorcing husband and wife, (as in the case of Turn-bull and wife,) and the sale of lands of infants, (as in that of Minor and Taliaferro, 1 Call,) are frequently passed, and no one doubts their being within the scope of legislative authority.
    Such laws, however well intended, are frequently unjust, or occasionally produced in justice; but they are not the less valid. One at least of my opponents will agree that the act which enforces militia fines on the citizens of Richmond more than twice as great as on the citizens of the state at large, is highly unjust, yet he has never contended that it was void.
    So too they may create corporate bodies, such as banks, trading companies, and corporations for the government of towns, give them a perpetual existence, and confer on them rights and duties different from those of other citizens. The ostensible ■object of these laws is the public good, yet in particular instances it may be grossly mistaken, and the law will still be obligatory.
    Generally speaking, the power of making laws carries with it the power of revoking them, otherwise, one legislature will possess a greater power than succeeding ones.
    If by means of deception on the government, a law is obtained vesting rights in individuals destructive of the public good, and against common right, a power must exist somewhere of annulling such laws; and if there is no particular regulation to the contrary, this power must reside in the legislature, or that body which exercises supreme authority.
    But it is objected that laws, such as the one in question, are in their essence contracts, and that the government, being but one of the contracting parties, cannot cancel them without the consent of the other. Admitting them to be contracts, it does not follow that a government is always bound to carry them into effect. Treaties are national contracts, and yet there are cases in which states are warranted *in refusing to execute them. Independent nations acknowledging no superior, have no common judge, and each, taking the consequences of doing wrong, must judge for itself. By contracts with individuals, the state cannot be more firmly bound than by treaties; and individuals who have no means of controlling their decisions, except in extreme cases must acquiesce.
    This doctrine it may be objected goes to establish in government “the right divine to govern wrong,” but what are the consequences of the opposite opinion? If every individual can judge for himself whether a law is according to moral right, and whether the state is authorized in any particular instance to depart from its contract, or has in fact violated it, how is obedience to the laws to be sustained? And if a public body is invested with the right of deciding, that body, quoad hoc, becomes the supreme power of the state.
    Governments, like individuals, are under a moral obligation to do right, and every breach of faith in either, is immoral. Free agency implies the power of doing well or ill, and cannot exist without this power. Error is incident to human nature, and in a doubtful case between a government and an individual, what unerring standard of right can be resorted to?
    In ordinary cases, a chang-e of rulers by the accustomed mode of election, is a sufficient security against unjust or unequal laws, and the proper remedy for such as have been enacted.
    No doubt laws may be so flagrantly unjust and oppression so great, as to authorize every individual to refuse obedience, and to stand up in support of the outraged rights of humanity; but when things are brought to this point, the government, no longer answering the purpose for which it was established, ceases to exist, and a revolution is effected. In such a conjecture the decision is made, not by the ordinary tribunals, but by the people at large. So far on general principles.
    *2d. On the Constitution of Virginia.
    I do not deny that among the infinite variety of modes in which different governments may be organized, the supreme power may be so distributed as that a public body, not having the right of originating or enacting laws in the first instance, may be so constituted as to possess the power of pronouncing on the validity of those that are enacted by the ordinary legislature; and I have no doubt that under the constitution of Virginia, there might be laws enacted which this Court would be bound in the ordinary exercise of its jurisdiction to declare null and void. If, for instance, the legislature should take on itself to decide on a controverted judicial -question between two individuals, the law would be void as violating- that part of the constitution which relates to the organization of the government, and provides that the legislative, executive, and judiciary power shall be képt separate and distinct from each other.
    The act in question cannot be said to be an invasion of the power of the Judiciary. In every judicial question there must be a controversy and three parties, the actor, reus, and judex; here the controversy was not decided by the law, but arises out of it.
    The argument drawn from the power of the King of England to grant charters but not to annul them, does not apply to a government constituted like ours. This power is a relic of the prerogatives anciently exercised by the English monarchs. The supreme or legislative power does not reside exclusively in the king, and he can only exercise his prerogative in the manner sanctioned by the custom of the realm. Being a limited monarch, and entrusted only with the executive powers of government, he is neither warranted by usage nor general principles in revoking or altering charters. He cannot, for instance, alter the charter of London, but those of Williams-burg and Norfolk have been altered again and again by the legislature of Virginia, whose power in this respect has never been doubted.
    *It may be objected, that the general spirit of our constitution forbids any act of injustice, or the violation of a contract on the part of the government. No doubt every' government ought to keep in view the great principles of justice and moral right, but no authority is expressly given to the judicial by the Constitution of Virginia, to declare a law void as being morally wrong or in violation of a contract.
    If such a power were given, a case might occur, in which the legislature would be right and the Court wrong in its opinion; who then would correct the error of the Court? According to the system of the ancient philosophers of India, we are told that the world is upheld by an elephant, and the elephant again by a tortoise, but they still want a support.
    Unless, then, the Constitution of the United States renders the act in 'question void, it is obligatory.
    That the constitution prohibits the legislature from passing such an act without the consent of the body corporate; I am not disposed to controvert, although it may well be questioned whether it was intended to apply to such a case. The provision in the constitution that “no state shall pass a law impairing the obligation of contracts,” cannot be understood in the most extensive sense of the words, so as to embrace, for instance, laws for suppressing usurious or gaming contracts, but must have a reasonable construction.
    It may perhaps be questioned, especially since the amendment to the constitution which prohibits suits against states, whether this provision applies to contracts with states, and whether in this respect persons contracting with a state stand in a better situation than those contracting with the government of any independent nation.
    By the general law of nations, if a subject of one independent state contracts with the government of another, which violates the contract, he is without remedy and has no right to call on his own government to support his rig'ht, as he trusted only to the good faith of those with whom he contracted, yet if, without reference to any contract, he has sustained an injury from the government of a foreign state, *he has a right to call on his own for protection, and a refusal to make reparation is a cause of war.
    But admitting this provision in the constitution to apply to contracts with states, any construction that would lead to an absurdity must be rejected. It may not be unreasonable to require the assent of the corporate body in its corporate character; but to require that of every individual member of a numerous body, some of whom must always be disabled by infancy, coverture, absence, disease or other causes that may render their assent impossible, is in effect to declare that no fundamental law of a corporate body thus constituted, shall ever be changed, however just or expedient such change might be.
    If, for example, the bank of Virginia, instead of the present seat of its establishment, had been fixed at James Town, with its branches at Varina, Warwick, and other towns that are now no more, would it not have been in the power of the legislature, with the assent of the bank in its corporate character, to remove it? or must the-business of the bank be transacted in the deserted fields where those towns stood, instead of the seats of commerce where it is now transacted?
    The counsel for the appellants, aware of the absurdities to which this general position would lead, have endeavoured to evade them by a distinction which a moment’s reflection must satisfy them creates no real difference, and leads exactly to the same conclusion.
    They admit the law to be binding on such members of the corporate body as have individually assented to it, but not the others, who were either incapable of yielding their assent, or actually refused it.
    One of two consequences must flow from such a state of things; either that the old corporate body continues to exist in its original form and a new one is created out of it, consisting in part of the same members, comprehending the same property, and for the same general objects, which is as absurd as the position in physics, that two bodies can occupy the same space; or else that the individuals of the minority *who have withheld their assent to the change from choice, or inabil-it3r to yield it, cease to become members of the corporate body, and are no longer under-any obligation to conform to its rules. This last conclusion, I presume, is the one the counsel for the appellants would draw from their position. But when it is recollected that the obligations and rights of the members of the corporate body are correlative, and that the individuals who-are discharged from the former must lose the latter, they will see that this admission gives up the argument. Many cases might occur in which members of a corporate body would be much more deeply injured by being disfranchised and losing their corporate rights without their consent, than by continuing members and being bound by the acts of the majority; and they are certainly deprived of their rights under the original contract without their consent as effectually in one way as the other.
    It must therefore be admitted that the Constitution of the United States does not prohibit the legislature of a state from changing the fundamental laws of a corporation, with its assent, given in its corporate character, or that the framers of the constitution meant what was utterly inconsistent both with reason and right.
    2d. The call has been made by a president and directors duly qualified tc make it. It is admitted that they were chosen at a regular general meeting by a majority of the members present; but it is objected that because instead of choosing four directors in the first instance, and then a president out of these four, the meeting first.chose a president, and then three directors, the act was not pursued, and the election void. This exposition of the act would be very correct if the electoral body did not continue the same. If, for instance, four directors were to be chosen by the members of the corporate body at large, and these directors were then themselves to choose a president out of their own body, it would no doubt be contrary to law, for the members at large to choose a president. But as the president is himself *one of the directors, (as it appears from the various passages in the act,) it is merely a question as to the order of election, and there can be no real difference which choice is first made; now the act does not expressly prescribe any order in the choice, and the phrase “out of whom a president shall be chosen,” may be fairly understood as equivalent to “one of whom shall be chosen president.”
    Eor an error merely in point of form, a quo warranto will not be granted. 1 Durn-ford and East, 3, Eex v. Stacy; 4 Burrow, 2120, Eex v. Dawes, and v. Martin.
    But on either construction of the act, the call was made by a president and directors de facto.
    The distinction between an officer de facto, but not de jure, and a usurper, as laid down by all the authorities is, that the former gets possession by a colourable election, the latter without any election whatever. The acts of the latter are void, of the former, good when necessary. This is not to be understood as relating to a necessity in the particular case, but a general necessity for such acts. Now the objects for which the society was instituted cannot be attained without occasional calls for quotas. The distinction between legislative, executive, and judicial acts, as laid down by the counsel for the appellants is not to be met with in any of the books, and if it were a sound one, is not applicable. Acts of each of these descriptions may, or may not be necessary, and a call under the laws of the corporate body certainly is not a legislative act.
    That between acts which depend on the will and those that do not, is equally unfounded ; the word necessary must be understood in its legal sense as equivalent bp requisite or the good of the society, and not as relating to a physical necessity. On the whole, therefore, the call was made under an act of Assembly binding on the society at large, and each of the members, and by officers possessing competent authority for this purpose.
    [JUDGE TUCKEE declined sitting in this cause.]
    
      
      Mutual Assurance Society. — The principal case is cited with approval in Statton v. Mutual Assurance Society, 6 Rand. 27; The Mutual Assurance Society V. Stone, 3 Leigh 232; Goddin v. Crump, 8 Leigh 151.
    
    
      
       See 2 Rev. Code, Appendix, No. 7, p. (75.) (76.)
    
    
      
       Ibid. p. (84) § 24,
    
    
      
       1 Uomat’s Civil Law, 153; 2Polhier on Obligations, 565.
    
    
      
      Cb) Marshall on Insurance, 193.
    
    
      
       Bro. Leases, 68: 3 Bac. Abr. 367.
    
    
      
       Co. Lit. 264: 1 Bl. Com. 478; 6 Vin. 270.
    
    
      
       Cro. Jac. 554. Obrian v. Knivan, Andr 173; The King v. Lisle, 2 Bac. Abr. 20.
    
   *JUDGE EOANE.

In the year 1794, the legislature passed an act, at the suggestion of an individual, “for establishing a Mutual Assurance Society against fire, upon buildings in this state.” It provided for a subscription to the scheme, by individuals, and declared that the principle of the assurance should be, “that the citizens of this state may insure their buildings against losses and damages occasioned accidentally by fire, and that the insured pay the losses and expenses, each his share, according to the sum insured.” The act contains a 'few other provisions, which may, also, be considered as forming a part of the principles of the institution; but none of them are perhaps of so fundamental a cast as this, nor apply so immediately to the case before us. The act further provided, that as soon as three millions of dollars should be subscribed, the subscribers should meet together, examine the system submitted to the legislature, and conclude on such rules and regulations, as to a majority of the subscribers might seem best; and that the said society should be at liberty, from time to time, to alter and amend the said rules and regulations, as they may judge necessary; and in particular, that they should agree upon the premiums to be paid. The act also provided, that as soon as the society should have acted in the premises, and elected their agents and officers, it should be considered as incorporated by virtue of the act.

It is evident, that every thing touching the question before us, is left to the pleasure of the society itself by this act, or at least, every thing that does not invade the principle before mentioned, or some other principle admitted to be fundamental; and that some of the powers expressly recog-nised by the act, as appertaining to the society itself, (that of fixing and altering the premiums for example,) are equally as important and as liable to be abused as the principle in question ; which, it is urged, has been infringed by the act of 1805, effecting a separation between the interests of the towns and those of the country. The power to do *right, unavoidably involves that of doing wrong; an adequate security to individuals, however, is, that the general will of the society finds no motive for injustice or oppression. The true question, therefore, before us is, whether any fundamental principle exists in the case at bar, interdicting the separation of the interests in question- — • and if there be, whether the subsequent legislature had power to invade it?

'These questions, and especially the last, involve great and momentous considerations. The near approach of the close of the term, does not allow me time to digest and arrange my ideas upon it, to my satisfaction ; but as the interests of the society, and the public, demand a speedy decision, I shall not hesitate to give one.

In order to shew that the act in question is no law, and therefore, it is further urged, is a compact, and as such is beyond the power of a succeeding legislature, Blackstone’s definition of municipal law has been relied on. Municipal law is defined by him to be “a rule of civil conduct prescribed by the supreme power of the state, commanding what is right, and prohibiting what is wrong;” and it is argued, that the act in question is no law, under this definition, for want of the generality implied by the term “rule,” and because it is said to be not so much in the nature of a command by the legislature, as of a promise or contract proceeding from it. When we consider, that mere private statutes and acts of parliament, are (even by this writer himself) universally classed among the municipal laws of England; nay, even that the particular customs of that kingdom, are admitted to form a part of the municipal code, it is evident, that this definition of municipal law, is by far too limited and narrow. I would rather adopt the definition of Justinian, that civil (or municipal) law, is, “ quoad quisque sibi populus constituí t’ bounded only in this country in relation to legislative acts, by the constitutions of the general and state governments; and limited also by considerations of justice. It was argued by *a respectable member of the bar, that the legislature had a right to pass any law, however just, or unjust, reasonable, or unreasonable. This is a position which even the courtly Judge Blackstone was scarcely hardy enough to contend for, under the doctrine of the boasted omnipotence of parliament. What is this, but to lay prostrate, at the footstool of the legislature, all our rights of person and of property, and abandon those great objects, for the protection of ■which, alone, all free governments have been instituted?

Eor my part, I will not outrage the character of any civilized people, by supposing them to have met in legislature, upon any other ground, than that of morality and justice. In this country', in particular, I will never forget, “that no free government, or the blessing of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.” I must add, however, that when any legislative act is to be questioned, on the ground of conflicting with the superior acts of the people, or of invading the vested rights of individuals, the case ought to be palpable and clear: in an equivocal or equiponderant case, it ought not easily to be admitted, that the immediate representatives of the people, representing as well the justice as the wisdom of the nation, have forgotten the great injunctions under which they are called to act. In such case, it ought rather to be believed, that the judging power is mistaken.

With respect to acts of incorporation, they ought never to be passed, but in consideration of services to be rendered to the public. This is the principle on which such charters are granted even in England; (1 Bl. Com. 467,) and it holds a fortiori in this country, as our bill of rights interdicts all “exclusive and separate emoluments or privileges from the community, but in consideration of public services.” (Art. 4.) It may be often convenient for a set of associated individuals, to have the privileges of a corporation bestowed upon them; but if their object is merely private or selfish ; *if it is detrimental to, or not promotive of, the public good, they have no adequate claim upon the legislature for the privilege. But as it is possible that the legislature may be imposed upon in the first instance; and as the public good and the interests of the associated body, may, in the progress of time, by the gradual and natural working of events, be thrown entirely asunder, the question presents itself, whether, under such and similar circumstances, the hands of a succeeding legislature are tied up from revoking the privilege. My answer is, that they are not. In the first case, no consideration of public service ever existed, and in the last, none continues to justify the privilege. It is the character of a legislative act to be re-pealable by a succeeding legislature; nor can a preceding legislature limit the power of its successor, on the mere ground of volition only. That effect can only arise from a state of things involving public utility, which includes the observance of justice and good faith towards all men.

These ideas are not new; they are entirely sanctioned by the sublime act of our legislature, “for establishing religious freedom.” That act, after having declared and asserted certain self-evident principles, touching the rights of religious freedom, concludes in this manner: “And though we well know that this assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to our own, and that, therefore, to declare this act irrevocable, would be of no effect in law, yet we are free to declare, that the rights hereby asserted, are of the natural rights of mankind, and that if any act shall be hereafter passed, to repeal the present, or to narrow its operation, such act will be an infringement of natural right.” Conforming to the principles declared in this lumious exposition, I infer, irresistibly, that the power of a succeeding legislature is bounded only, (and that in cases of no equivocal complexion,) by the principles and provisions of the constitution and bill of rights, and *by those great rights and principles, for the preservation of which all just governments are founded. It is not my intention to go into detail on the present subject; but the power of the succeeding legislature is neither to be limited by a state of things, which (as aforesaid) leaves no beneficial result whatsoever, to the community, nor by those petty inequalities and injuries, which arise to some individuals or classes of men, under every general regulation whatsoever. I will not say that the reason of the law ceasing, the law itself ought to continue; nor that we are to expect entire and exact justice, under any system whatsoever.

Under the actual case before us, I might, perhaps, have spared myself the necessity of this discussion. The principle stated in the act of 1794, which is supposed to have interdicted the separation in question, is couched in terms extremely abstract and general. While other principles declared by this act, have clearly and expressly confined the benefits of the institution to citizens of this state, and limited insurances to losses occasioned accidentally by 'fire; while it is clearly provided that retribution is to be made by the insured, and that according to the sum insured, the principle now immediately in question does not seem to prohibit a division or distribution of the members, or their interests into classes, or districts. There was no motive for a restriction upon the society in this particular, especially in an institution of the first impression; and there is no reasonable fear of abuse by the society, of a power equally useful to all, and liable to produce injustice in one quarter as well as another. It was deemed proper to allow to the society the benefit of experience; and as other powers of a character as important as the one before us, were confessedly granted to the society at large, wherefore should this be withheld? Referring to the contemporaneous and successive construction of the act of 1794, by the society itself, always acquiesced in by every member, it will be seen that the society itself, inter alia, extended assurances to losses occasioned by 'ightning also; (whereas the original act *seems to have contemplated ordinary fires only;) that they excluded from the benefits of the institution certain combustible houses and buildings; and of their own mere authority, and prior to the existence of any legislative provision to that effect, permitted individuals to withdraw from the obligations they had incurred under the original institution. While it is far from my intention to arraign these wholesome and salutary exercises of power, on the part of the society, in general meeting, I contend that these and some other powers are of a character as important, perhaps, as that of effecting a separation.

Erom these considerations, it would, perhaps, result, that the regulation in question did not require legislative aid to carry it into operation, but might have been effected by the society itself. That, however, is taking a broader ground than is necessary to be maintained on the present occasion. That aid having been afforded by the legislature, it is enough for our purpose that the act of 1805, if it has produced any injustice at all to any class of subscribers, has fallen short of that crying grade of injustice, which alone can disarm the act of its operation. The society itself, at least, considered this, on the contrary, as a measure essential to the equalization of the risks; and, in this respect, I see no-cause to differ from them in opinion.

By referring to the principle of our law respecting corporations, the foregoing results will be fully justified. Those artificial persons are rendered necessary in the law from the inconvenience, if not impracticability of keeping alive the rights of associated bodies, by devolving them on one series of individuals after another. The-effect of them is, to consolidate the will of the whole, which is collected from the sense of the majority of those who constitute them. This decision by a majority is a fundamental law of corporations in this country and in England; in which respect our law differs from the civil law; it requiring the concurrence of two thirds of the whole members. It is also a fundamental principle of corporations, that this majority *'may establish rules and regulations for the corporation, (which are considered as a sort of municipal law for the body corporate,) subject only to a superior and fundamental law which may have been prescribed by the founder thereof, or by the legislature which grants the privilege — perhaps, also, these petty legislatures ought further to be limited by all those considerations, (including the due observance of justice,) which I have endeavoured to shew, ought to bound the proceedings of all legislatures whatsoever. If, however, there be no such paramount law, or overruling principle, the mere will of the majority is competent to any regulation. I have endeavoured to shew, that no principle exists in the case before us to answer the foregoing character; that the one suggested is entirely abstract and indefinite as to the point in question; and that it does not appear that any injustice has arisen, or can be reasonably expected to arise, from carrying the measure in question into operation. But further, a corporation may be extinguished by the surrender of its rights and franchises; as.' to which the unanimous assent of every individual is not requisite. The will of the majority must prevail in this, as in other cases. It is not to be expected that this kind of suicide will he committed for light causes; and where cases of greater exigency require it, the corporation should not hesitate to make the surrender.

I will put a case, which will exemplify my meaning. By the charter establishing-the College of William and Mary, it was a fundamental law of the institution that a Divinity School should be kept up, for promoting a Seminary of Church of England Ministers, and another for the instruction of' the neighbouring Indians in the arts and sciences. Both of these have, by common consent, which amounts, quoad hoc, to a surrender, been discontinued in the seminary, although they were required by the fundamental law thereof. A state of things, has arisen, which has put down the then established church, and given to other sects of religion their equal claims to the benefits resulting from that institution- — - *an institution, to the endowment of which, considerable portions of the public property were contributed; and as for an Indian school, that has been rendered unnecessary, among other considerations, by the change of our relations in respect of those aborigines, and from their remoteness at the present day from the seat of that institution.

As it is not expected, that corporations shall exist for ever, when the reasons for granting them shall have passed away, and no public utility can ensue from their continuance, this right of surrender must incontrovertibly exist, even in derogation of the fundamental laws and principles. In the case before us, the resolution of the society, on which the act of 1805 was bottomed, may be considered as such surrender, and that act as the acceptance thereof. The interests of the institution commenced thereafter, as it were, de novo; and provision was made for a revision, and revaluation of the houses in the towns and in the country, as thus separated. Whether, therefore, the measure adopted by the society in 1805, and sanctioned by the legislature, be considered as a legitimate change, by the society itself, of an ordinary regulation, or as a surrender which destroyed a fundamental one, the effect as to the question before us, is precisely the same.

I have thus despatched, as well as time will permit, the great question on which this case depends. It remains to say, that no act can be done by the society, but in general meeting, as to the time and place of which the law has provided, there shall be full and adequate notice; and this is a sufficient security against surprise. I will also add, that if any class or set of individuals are so peculiarly circumstanced, as that their interests should conflict with those of the majority of the society, while they have undoubtedly contracted to be bound by the suffrages of that majority, they are also protected from oppression, by the liberty guaranteed them, of withdrawing from the institution altogether. It is bet-. ter that an inconvenient member of the’^society should be lopped off, than the whole body corporate should perish.

One objection of a minor character yet remains to be disposed of. It is that the requisition, under which the quota in question was demanded, is illegal; it having been adopted by a president not duly elected, it is said, he not having been previously elected a director.

By the original act of 1794, the power of choosing a president and directors, without any restriction whatever, is admitted to belong to the society at large, in general meeting. By the act of 1805, the legislature has provided that the president shall be chosen out of three directors, the whole to be chosen by the meeting; whence it is inferred there must be two separate and distinct elections. The objection in question does not come well from those who contend, that the act 1794 contains fundamental provisions, which even the legislature is not competent to alter. I will not stop to inquire, whether the society at large acquired an exclusive and indefeasible right in the premises, under the original act of 1794, which will bear out the present proceeding; I will consider the case as standing under the act of 1805 only. I will here remark, that I understand the case agreed, as only- admitting that Mr. M’Rae was not previously appointed a director, by a separate and distinct appointment: I do not understand it to admit, that the society did not appoint him a director eodem flatu, that they appointed him president. By the terms of the act of 1805, a previous election as director is not necessary ; and, certainly, there can be no substantial reason for giving to it such a construction. There can be no real utility in requiring an unnecessary circuity of proceeding; and as a previous election as director, was not required by the act, there was no objection to the society husbanding their time by appointing a president and director (both of which characters are to combine in the same person) at one ballot.

*In every view of this case, therefore, I am of opinion, that the judgment of the District Court is correct, and ought to be affirmed.

JUDGE' EBBMING.

The appellant, in the Court below, rested his defence on two points. 1st. That Alexander M’Rae, who acted as president of the said society, when the said resolution was passed, was not duly and lawfully elected; he not having been, previous to his appointment as president, appointed a director, as by law directed ; and, 2dly. That the motion could not be maintained under the act of 1794, for establishing the society; the requisition on which it was founded not having been made in conformity therewith; nor under the act of January, 1805, lately adopted at a general meeting; the said act having attempted to increase his sisk, without his consent.

With respect to the first objection, there seems to me to be no weight in it. By a regulation of the society made in the year 1795, its business was managed by a president and fourteen directors. That regulation having been found inconvenient, it is by the 9th section of the act of 1805, declared, that “there shall be in future only three directors, out of whom a president shall be chosen.” I construe this clause in the act, in the same manner as if the words had been, “there shall be in future only three directors, one of whom shall be president.” And as to the mode of his election, it appears to me immaterial whether he was first elected president, and afterwards the same day chosen one of the three directors, or had been first chosen a director, and afterwards elected president; as he was on the same day (and long before the resolution making the requisition in question) both president and one of the three directors; and so it was admitted by the appellants’ counsel in the argument, which was perfectly consistent with the true meaning and spirit of the law.

2. As to the second objection, that, at first view, seemed to have been of more consequence ; but, on due consideration, *that also seems to be unavailing. The first institution of this society, which, as was generallj' supposed, would be of great convenience and utility to the community at large, was a mere matter of experiment, and which must probably un■dergo such changes and modifications as experience should point out, in order to make it more equal and extensively useful to the community. In contemplation," then, of these circumstances, the legislature, in the act that established and incorporated the society, provided by a special clause for the purpose, that “the society, or a majority of them, shall be at liberty, from time to time, to alter and amend the rules and regulations as they may judge necessary.” So with respect to the Constitution of the United States, which was composed by the collected wisdom of the whole union, after long deliberation it was found on experience to be defective, and to require sundry amendments, which have been already made; and it is not yet, perhaps, quite perfect, which is the inevitable fate of all human institutions.

Of these circumstances Doctor Currie was fully apprized when he subscribed, and became a member of the society; and therefore had no just ground of complaint.

A few years’ experience taught the society that, under the original constitution, the risk was very unequal between the town and country subscribers, in favour of the former; and therefore it became necessary, in order to do justice to both classes, to separate their interests, as there was much more danger to the town than to the country houses, and therefore, on the principle of equality and reciprocity, a majority of the society, on a representation to the legislature, procured an act of Assembly, passed the 29th January, 180S, in which it is declared, that “all premiums and quotas, in future, for the assurance of houses in towns, shall be applied to the payment of losses sustained by the burning of houses in towns, and none other. And0 vice versa respecting losses, by the burning of houses in the country.”

But it is objected that this regulation is not binding, because every individual member of the society was not consulted *nor assenting to the regulation. It would be misspending time to refute this argument, as in all institutions of this kind, the acts of a majority are binding on the whole: by the civil law that majority must consist of two-thirds of the members. And the appellants’ principal had the less reason to complain, as he was, by the 13th section of the same act, at full liberty to withdraw from the society, on giving six weeks previous notice, and paying all arrearages due at the time of withdrawing.

As to the right of the assembly to alter the charter, I will just observe that it was, in effect, done by the society itself; who in order to give it more validity, did it under the sanction of a legislative act, the same authority, by which the institution was established; and I shall only subjoin a verjr correct note in Tucker’s Blackstone, on the subject. That “no corporation has been created in Virginia, since the revolution, but by an act of the legislature; their powers and privileges must therefore, depend wholly on the act of Assembly by which they are first established, or such have been afterwards made, for the special purpose of limiting or enlarging their privileges respectively.”

I, upon the whole, concur in the opinion, that the judgment be affirmed. 
      
       Virginia Bill of Rights, art. 15.
     