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 My opinion has been asked upon the present state of the char- 
 ter of the " Mount Vernon Ladies' Association of the Union," 
 what constitutes it, and the rights of the State of Virginia in 
 regard to the said Association, and its visitatorial {tfrntamai^ 
 power over it ? 
 
 I find some difficulty in answering thesa enquiries, from not 
 knowing exactly all the facts connected with them. 
 
 The funds contributed for the corporate purposes being 
 private, the corporation came originally under the head of a 
 private eleemosynary corporation, and its charter could not be 
 repealed or altered in any material respect without its consent. 
 Dartmouth College Case, 4 Wheaton, 518. 
 
 But the franchises and rights of all corporations are to be 
 strictly construed, in favor of the rights of the public, and 
 against the claims of the corporation. 
 
 Charles Eiver Bridge Co. vs. Warren Eiver Bridge 
 Co., 11 Peters, 420. 
 
 The original act of incorporation was passed March 17, 1856. 
 That act recited that the contributions should be applied to 
 the purchase of the mansion and tomb of George Washington 
 with 200 acres, to be held by the State of Virginia, &c. ; that 
 the fund was to be held by the Treasury of the State until S200,- 
 000.00 was raised to be paid for the same, and a deed to be 
 made to the State. The right of visitation was reserved to the 
 State, and in case the Association did not make proper improve- 
 ments, &c., and such default being found by a Board of Visitors, 
 then the right was reserved to Virginia to do so, and take pos- 
 session. The power was reserved to the Governor to appoint 
 
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 five visitors annually, to report upon the conduct of the prop- 
 erty, &c. The Association was incorporated, with a corporate 
 name and power to possess and manage the property, subject to 
 1st and 2d sections of^Chapter 56, of the Code of Virginia. But 
 with a condition that before taking the benefit of the act of in- 
 corporation, it should prepare a Constitution and By-Laws, to 
 be approved by the Governor, and file a copy thereof in the 
 office of the Secretary of State, &c. 
 
 I am not informed whether this act was complied with as to 
 Constitution and By-Laws. I take this for granted, and proceed 
 upon the concession that it was regularly done. 
 
 This act of March 17, 1856, constituted the charter of the 
 .'».ssociation. Under it, the power of visitation, the right to 
 improve the property and the title thereto were reserved to the 
 Stat^. 
 
 Under this act, I assume (though T have no precise informa- 
 tion about it,) that the Constitution and By-Laws, which I find 
 in the pamphlets herewith enclosed, were adopted and approved 
 by the Governor of Virginia. That provided the governmental 
 machinery for the corporation. 
 
 I come now to the act of March 19, 1858. This act essentially 
 changed the charter of 1856. If, as I have said, this corpora- 
 tion was an eleemosynary one, private in its foundation, this 
 change of charter, unless with the consent of the corporation, 
 was of no effect. Whether that consent has been given I am 
 not informed — but I shall assume that it has been. As the 
 deed for the property has been made, not to the State, but to 
 the Association, and that could be done only under the act of 
 1858, this would imply a consent, if none had been expressed. 
 
 The important question now arises, has the act of 1858 
 superseded entirely the provisions of the act of 1856 ? Has it 
 repealed the charter of 1856, so that it is no longer in force ? 
 or has it merely modified it ? 
 
 This is a question of real difficulty. The Constitution of 
 
Virginia, Article 4, § 16 (then in force — that is in 1856 and 
 1858), provided that " no act shall be revived or amended by 
 reference to its title, but the act revived or section amended 
 shall be re-enacted and published at length." 
 
 The act of March 19, 1858, enacted that the act of " March 
 17, 1856, be amended and re-enacted so as to read as follows:'"' 
 It does not select any section of the act of 1856 to be amended 
 and re-enacted. It declares the act itself shall be amended and 
 re-enacted — that is, " re-enacted and published at length," so as 
 to read as follows. 
 
 It seems to me, therefore, that the act of 1856 was intended 
 to be w;holly superseded by the act of 1858 — and that the 
 charter* of the corporation, thereafter was contained in the act 
 of 1858, if the Association consented to it. ^ 
 
 The effects of this change in its charter will now be consid- 
 ered. 
 
 Under the laws of Virginia, applicable to corporations, the 
 government of its affairs would be very different from that of 
 the Board of Regents. Indeed, as no governmental machinery 
 is prescribed by the act of 1858, the corporation would exist 
 without any agencies to conduct its affairs, except for the 
 potential words in the first section of the act. It incorporates 
 the Association " as heretofore organized." The organism ex- 
 isting and constituted before and at the date of the act of 
 March 19, 1858, is the permanent, fixed and unchangeable ma- 
 chinery for the regulation of the affairs of the Association. I 
 will not say that a change may not be made under 4th by-law 
 in the Constitution of the Association, which might change the 
 governmental machinery. On this I express no opinion, as it 
 is unnecessary. 
 
 But it is very doubtful whether any change can be made, as 
 the charter itself has incorporated the existing machinery, as 
 that which the Legislature meant to create and fix as the or- 
 ganic power to regulate its affairs. No other corporation with 
 
power to amend by-laws can make any radical change in its 
 chartered government; and as this corporation is subject to all 
 laws then existing, the general linjitation imposed in the power 
 of others would equally apply to this. And especially would 
 this power to change be denied when the Legislature had the 
 Constitution of the Association filed in the office of its secretary, 
 and the inference of power is never made against the right of 
 the public, in favor of any corporate claim. 
 
 Charles Eiver Bridge case — already cited. 
 
 This new charter has in it clear and stringent limitations on 
 the power of the Association. The State, in whom the legal 
 title was to vest under the original charter, has by this new 
 charter given that title to the Association. In the 2d section 
 of the act of 1858, the Association was forbidden to aliene, 
 charge or lease the same without the consent of the General 
 Assembly of Virginia. The 3d section placed important limits 
 On its power over the tomb, and the right of burial there. 
 
 The 4th section enjoined the holding by the Association " to 
 be sacred to the father of his country"; and in case the Asso- 
 ciation " from any cause " ceased to exist, " the property owned 
 by the said Association shall revert to the Commonwealth of 
 Virginia, sacred to the purposes for which it was originally pur- 
 chased." 
 
 This language is very pregnant with meaning. It means : 
 
 1st. That the Association in its corporate character holds the 
 property under a trust, to keep it sacred to the father of his 
 country. It holds not in absolute right, but in trust under this 
 injunction of its charter imposed upon it by the General As- 
 sembly of Virginia. 
 
 2d. The Association ceasing to be, the property reverts, 
 turns back to the Commonwealth of Virginia. That Common- 
 wealth gave up its title to the Association. When it ceases to 
 be, the giver takes back the gift from the dead donee. 
 
 3d. But how can it cease to exist ? It may forfeit its char- 
 
ter by abuse of its power, or by non-uses of its power. A vio- 
 lation of its charter may authorize the Commonwealth by Quo 
 Warranto to dissolve the corporation. When from any cause, 
 by voluntary abandonment or by abuse of its functions, it 
 ceases to be, the Commonwealth will own Mount Vernon and 
 fulfill the sacred trust which the Association has forfeited. 
 
 4th. This new charter seems to do more. The original foun- 
 dation of the Association, as I have conceded, seemed to have 
 been private, and the corporation constituted by the first char- 
 ter was eleemosynary, on a private foundation. The last charter 
 changes this. The Commonwealth, in whom the title was to 
 vest, now gives that title to the Association. This makes the 
 corporation of a puUic foundation. The founder of it is the 
 State. It gives the property for corporate use ; and like every 
 founder of an eleemosynary corporation, Virginia has the un- 
 doubted right to visit it, and see that the corporate property is 
 legally and properly used. This is the doctrine recognized in 
 the Dartmouth College case, on the basis of the celebrated judg- 
 ment of Lord Holt, in Philips vs. Berry, 1 Lord Raymond, 5 S. 
 a, 2 T. R, 346. 
 
 This being so, it is the undoubted right of the Legislature of 
 Virginia to appoint a Board of Visitors, as it has done by the 
 act approved April 4, 1877, Acts of Assembly, 1876-7, page 
 355. Also for the police of the property, making the Superin- 
 tendent a Conservator of the Peace, by act approved Januarj 
 26, 1874, Acts of Assembly, 1874, page 16. 
 
 I am therefore of opinion that the Board of Visitors have 
 the right to visit, examine and report to the Grovernor of Vir- 
 ginia upon the proceedings of the Association, and upon their 
 compliance with their trust. 
 
 And I am further of opinion, that under the new charter, if 
 the Association fail in duty, Virginia will have the right by 
 Quo Warranto to forfeit the charter — and if, upon legal judg- 
 ment on such proceeding, or in any other way, the corporate 
 
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 existence is terminated, the property will by the charter revert 
 to the Commonwealth of Virginia. 
 
 Very respectfully, 
 
 J. K. TUCKER. 
 
 May 19, 1885. 
 
 For the Board of Eegents of the Mount Vernon Association. 
 
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LIBRARY OF CONGRESS 
 
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LIBRARY OF CONGRESS 
 
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