On December 20, 1859, the legislature of Washington enacted a private law creating Whitman Seminary in Walla Walla county. By the act eight persons were incorporated under the name of the 'President and Trustees of Whitman Seminary.' The corporation was given perpetual existence and the incorporators authority to govern its affairs and to name their successors. The right to acquire and hold real estate was conferred, with the duty of devoting all the revenue to the support of an institution of learning, for the education of both sexes, which it was the purpose of the act to have established. The capital stock of the corporation was limited by the 6th section to $150,000. The act was accepted by the incorporators, and the institution for which it provided, the Whitman Seminary, was established in Walla Walla county. After a lapse of twenty-three years, the Seminary, in November, 1883, owned considerable personal and real property, devoted to the purposes of the corporation. In that year and month a special act was passed by the territorial legislature, entitled, 'An Act to Amend . . .' the act previously referred to. By this act, in the form of an amendment, the original incorporators were incorporated under the name of 'The Board of Trustees of Whitman College.' The act, section by section, amended the prior act. It gave the trustees power to perpetuate themselves and govern the new corporation, which was endowed with perpetual existence. The act, in many respects, enlarged the powers of the old corporation, struck out the 6th section, which contained the limitation of $150,000 of capital stock, and substituted for it the following: 'That the property of said Board of Trustees of Whitman College, including all income and proceeds, shall be used exclusively for the purpose of education, and in consideration of said use the said property, income, and proceeds shall not be subject to taxation.' The organic law of the territory, the act of Congress of March, 1867 (14 Stat. at L. 426, chap. 150), when this last act was passed, contained the following, now embodied in Rev. Stat. § 1889:
'That the legislative assemblies of the several territories of the United States shall not, after the passage of this act, grant private charters or especial privileges, but they may, by general incorporation acts, permit persons to associate themselves together as bodies corporate, for mining, manufacturing, and other industrial pursuits, or the construction or operation of railroads, wagon roads, irrigating ditches, and the colonization and improvement of lands in connection therewith, or for colleges, seminaries, churches, libraries, or any benevolent, charitable, or scientific association.'
Whitman College took over the property and effects of the Seminary. It increased its holdings of real and personal property, the avails of which were all devoted to the purposes of the institution. It was in existence when the territorial government passed out of being and the state of Washington was incorporated into the Union, and it is conceded by both sides in argument that no question which requires to be decided on this record calls for a consideration of any of the events or legislation which were a part of the transition from the territorial form of government to statehood. Up to 1905 it is inferable that no attempt was made to tax the property of Whitman College. In 1905, however, the assessing officers of the county of Walla Walla, who are the appellants upon this record, acting under the authority of the state taxing law, and upon the assumption that the property of the corporation was taxable, assessed its real property in the county of Walla Walla not actually and physically used for the purposes of the institution, and taxes were levied on such assessment, amounting to $946.32. The corporation thereupon filed in the circuit court of the United States the bill which is now before us. The bill contained no averment of diversity of citizenship, and exclusively invoked the authority of the court below upon the ground of the existence of a perpetual contract right of exemption from taxation created by the 6th section of the act of 1883, and the impairment of such contract by the assessment and levy of the taxes in question.