, 1906-02-01
HAS POWER TO REPEAL
ITS OWN ENACTMENT
Continued from page -

Suit ana lilb ldol DlONAoANAf 49,
court is inclined to think, might pre-
vent the college, If a private corpora
ton. ever If in existence, from receiy-
ing and expanding these public moneys
in controversy. A large number OF
cases are cited and quoted from by the
court in its opinion sustaining the prop
osition that the college, If anything,
was a public institution, and a large
number of cases are referred to show
ing the difference between public and
private corporations.
With respect to the contention that
the repeating act overthrow the will OF
the people in locating the institution
the opinion goes on to show that the
location of the institution by the peo-
pie was not its creation and establish
ment; that the people by their consti-
tuition reserved to themselves, in re
Ispect 10 public institutions, the right
only to locate them, but expressly CON
Terred upon the legislature the rights
to establish such institutions. The
court a y on this subject:
THE institution was not, however,
created or established by the people,
as distinct from the legislature, either
Through their votes in locating it or
otherwise. Nor have the people by the
fundamental instrument of their state
government reserved to themselves the
fright to establish or create public in
st~itutions. The people have reserved
the power to vote upon the location of
such institutions established OF propos-
ed to be established. They did SO in
respect to the college here in question;
and hence we suppose the Legislature
would be powerless to continue the col
lege in existence and change its loca-
ton, without submitting the question Of
ehange of location to a vote of the peo-
pie.
THE Legislature is vested with all
Legislative powers of the state; it may
do anything within the domain of leg
islation which is not repugnant to the
state or federal constitutions; and con-
stitutional restrictions upon the legis-
~lature are not to be enlarged by con-
%struction beyond their terms. More
over, the power of establishing public
institutions is by the constitution ex-
pressly vested in the legislature. Sec
ton l of the article in which the
clause above quoted is found imposes
ing for the establishment n main
~tenance of free public schools, and
'such other institutions as may be nec-
essary.' Section Is of the same article
provides: Such charitable, reformatory
and penal institutions as the claims of
humanity and the public good may re-
qure, shall be established and support
ed by the state, in such as the
Legislature may prescribe. With the
one exception of the location of public
institutions, the power Of the legisla-
ture over them is unrestrained, and its
authority supreme. Unless, therefore,
to locate is to establish an institution
of the character of the college in ques,
tinn, il is to say that the peo-
PIE established it. We think that oun
sci are mistaken in the suppositlon
that, without a location, an institution
cannot exist. Examples are numerous
in the books of public institutions
which were established and in exist
ence in advance Of their location, or
the selection OF a site; they may not
be in a position to conduct operations
until located; but that they may con-
stitute al existing institution, if so de
clared by the legislature and provided
with a governing board, is, we think,
selfeyident. A building site is as es-
sential to the operation of a college as
the selection of the town for its loca-
ton. Yet is appears that there had
been no building site secured for this
college until January 80, 1905, notwith-
standing that it had a governing board
long prior thereto, who had been in
trusted with property for it's benefit.
The location of an institution differs
essentially from its creation. In many
cases cited in this opinion the institu.
ton involved had been located by a
board or commission appointed for that
purpose by the act establishing it; and
usually after receiving bids or dona-
lions, such board or commission select
ed a town or place for its location. 1t
seems never to have been supposed,
and We a%pprehend that none would be
so rash as to contend, that the board
or commission, in locating the institu-
ton, had established or created it. Up
on principle, however, there would
seem TO be no difference between such
cases and the one at bar in this re-
spect. In these cases the location oc-
Cured through the agency of a board,
in the case at bar through the agency
OF the people. True, in the case before
us, the agency of the people in such
matters is provided for in the consti-
tuition; but that, We think, does not al
ter the situation in regard to the thing
attended to, and required to be deter
mined, by the people themselves
After referring to some authorities
the OniniOn Drppaadc. oNr,u, "a ,a,1.