Opinion of the Court, per PECKHAM, J. property by gift or devise not exceeding the value therein · stated. Section five of the charter reads as follows: "SEC. 5. The corporation hereby created may hold real and personal property not exceeding three millions of dollars in "the aggregate." These provisions in the charter, together with the statutes above alluded to, must be examined for the purpose of discovering, if possible, what was the legislative intent towards this, corporation regarding property. The learned counsel for the appellant claims at the threshold, that the provisions of the Revised Statutes as to the incorporation of colleges (supra), with a single exception, were merely intended to apply to institutions of learning incorporated by the regents of the university of the state under the general laws of the state. He argues that the regents had power to incorporate a college by virtue of the provisions of the act (Chap. 82) of 1787, the provisions of which were re-enacted in 1813 and incorporated subsequently into the Revised Statutes, and at that time, and for many years thereafter, there was no other way of incorporating a college unless by a special act of the legislature. Hence, he says these provisions of law, general in their nature applied to corporations which were incorporated by the regents, and were never supposed to apply to corporations incorporated by special act, unless expressly made applicable in the special act. The counsel is right in his statement as to the fact when the act was passed. At that time there was no general law for the incorporation of colleges or other institutions of learning, other than by the regents, and when they granted a charter there can be no doubt that its provisions were affected by the act as contained in the Revised Statutes. But the language therein used (sec. 31), that the trustees of every college to which a charter shall be granted by the state shall be a corporation, is general in its nature, and it would seem to include all cases embraced within its language. That it is superfluous to apply it to the case of a corporation which becomes such by virtue Opinion of the Court, per PECKHAM, J. of the very act which incorporates it, is not a conclusive answer. It is an argument from the point of view that it was unnecessary, but because it was unnecessary is not always, perhaps even generally, an argument against the applicability of a statute to a certain condition of things. It is alike unnecessary with regard to colleges or academies which were incorporated by the regents under the power granted them in the acts of 1787 and 1813, both of which acts expressly granted them power to incorporate colleges and academies by giving them a charter. When they did so the college or academy became a corporation by virtue of those acts which empowered the regents to incorporate it. The section (31) was, therefore, unnecessary in both cases, and yet it was adopted, and in its language it embraces all colleges to which a charter is granted by the state. The thirty-sixth section provides that the trustees of every such college shall have power, among other things (subd. 4), "To take and hold any real and personal property, the yearly income," etc. * * * * I think it plain, therefore, that the provisions contained in that title would be applicable to the Cornell University, although specially chartered by the state, unless inconsistent provisions were to be found therein. The charter, however, in so many words, makes this title applicable to the university. (See section 1 of the charter, part of the language of which is quoted supra.) It is true that it states the corporation, in the performance of its duties, shall be subject to the provisions and may exercise the powers enumerated in the title mentioned, among which is the right to take and hold real and personal property. But the title itself is headed, "Of the powers and duties of the trustees of colleges," and among those powers and duties is the right above mentioned. I do not think that the use of the words "in the performance of its duties," would in any wise exclude the application of this fourth subdivision of section 36, and we must look elsewhere for such exclusion if it is to be excluded. That it is to be excluded all admit, but the Opinion of the Court, per PECKHAM, J. exclusion is founded upon a special provision in the charter itself which is wholly inconsistent with its continued applicability. The subdivision confines the taking and holding, by gift, etc., of real or personal property to a yearly income not exceeding in value $25,000, while the charter permits it to hold real and personal property to an amount not exceeding $3,000,000 in the aggregate. Both sides admit that this subdivision in question is not applicable — the respondents, because an inconsistent provision in the charter expunges it, while the appellant claims that even if there were no inconsistent provision in the charter, it would still be inapplicable because the statute only applies to corporations incorporated by the regents. The provisions of the charter are inconsistent, and still we must look at all the other statutes above cited for the purpose of discovering what the legislative intent is. Looking at the general statutes we find corporations have power to purchase and hold property necessary for the purposes of their incorporation, not exceeding the amount limited in their charter, but they cannot take by devise unless expressly authorized by their charter or by statute so to take. Then the Revised Statutes prohibit corporations from possessing or exercising any corporate powers, except such as are enumerated or are expressly given to them by their charters, or such as shall be necessary to the exercise of the powers so enumerated and given. The statutes also allow the trustees of a college to take property by gift or devise not exceeding a certain annual income, and then come the acts of 1840-1841, and then the charter of this university. The argument of the learned counsel for the appellant is, as I have said, based upon the theory of the utter inapplicability of the act of the Revised Statutes as to colleges; and then he claims that the acts of 1840 and 1841 bestow a capacity to take property by will not exceeding the amount limited in the charter of the corporation; and he claims also that in this case there is no limitation of the power in the charter of the university to take real or personal property to any amount, SICKELS-VOL. LXVI. 12 Opinion of the Court, per PECKHAM, J. and the only limitation there is consists of a limitation upon the power of holding more than $3,000,000, in the aggregate. He thus obtains the power to take an unlimited amount of property by virtue of one act, and a limitation is only placed upon its power to hold by another act, and that is the organic act of incorporation itself. I do not think such an interpretation of the statutes can be sustained. I think the fifth section of the charter gives the measure of the power of the university to take as well as to hold property. The language is an authority as well as a limitation. It is an authority to hold more than the Revised Statutes permitted, but it shall not be permitted to hold more than a certain specified amount. And if there were nothing said on the subject of property in the charter, I think the Revised Statutes as to the limitation for colleges would apply. Reading the language in the charter, it is difficult to imagine a holding without a previous taking of property, and the counsel for the appellant admits that if there were no other statute providing for a taking of property, the language of the fifth section of the charter would necessarily imply a right to take in order to hold. I do not think that his claim to derive an unlimited capacity to take by virtue of the Laws of 1840 and 1841, when construed with the other statutes and with the provisions in the charter, can be upheld as a fair exposition of the legislative intent upon the subject. The statutes of 1840 and 1841 were passed for the purpose of authorizing the creation of certain special trusts in connection with these educational institutions, which could not have been legally created prior to their passage, and their object did not in the least infringe upon the general laws of the state or its policy. As has been said, their passage did not repeal those general laws limiting the amount or value of property which corporations might take and hold. Because a special statute contained provisions upon the subject of the property of the corporation thereby incorporated, which were inconsistent with the general provisions contained in the Revised Statutes relating to the same subject, I do not think the effect was not Opinion of the Court, per PECKHAM, J. only to render the general law inapplicable, but also to twist the provisions of the law of 1841 in relation to the special trusts spoken of into a permission outside of and beyond the language of the charter to take property without any limitation as to amount or value. That might have been the effect if the charter had repealed those general provisions as to this corporation, and had made no other provision regarding it. Under such circumstances, the act of 1841 could have been referred to as permitting the corporation to take property by devise and in trust to an extent unlimited, but when the same language which renders the general law inapplicable also gives a power to hold property to a certain limited extent, it seems to me that such a power includes the power to take up to that sum, and limits it accordingly. It is said that if the power to take an unlimited amount of property and to hold but a certain sum were contained in the same law, there could be no doubt upon the question of the power to take. That may be so, for in that case the legislative will would have been announced in terms which could not be misunderstood. But there is a great difference between the two cases. The question is always one of legislative intent, and the inquiry is whether the statute of 1841, providing for the creation of trusts, really applies in this instance to this university so far as an unlimited capacity to take property is concerned. For the reasons already stated, I think it does not. Looking for a moment outside of and beyond the statute laws of the state, and in order to strengthen his position regarding the true construction to be given that law as to the material distinction in the case at least of a corporation, between the power to take and the power to hold property, the counsel for the appellant has made a most able and learned argument. Its outlines are, in substance, as follows: A corporation at common law could take and hold property by devise. At an early stage in the history of the law of England, relating to the power of corporations to hold real property, and while the feudal system still prevailed, it was |