Repository: UIHistories Project: Board of Trustees Minutes - 1916 [PAGE 875]

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1916]

PROCEEDINGS OF THE BOARD OF TRUSTEES.

JUDGE HARKER'S OPINION.

875

Judge Harker read the following opinion concerning the powers of the boards of trustees of Rush Medical College and of the University of Illinois in this matter.

[STATEMENT.] On March 2, 1837, the Rush Medical College was organized with seventeen individual names constituting, as a body politic and corporate, the "Trustees of the Rush Medical College." The charter stated that the object of the corporation was to promote the general interests of medical education and to qualify young men to engage in the profession of medicine and surgery. The location of the college was fixed in Cook County. It was provided that in that corporate name the trustees mentioned and their successors should have perpetual succession. It was provided that vacancies occurring from resignation, death or dismissal should be filled by the remaining trustees. The corporation was given power, "to make contracts; to sue and be sued; to plead and be impleaded; to grant and receive by its corporate name; to accept and acquire, purchase and sell, property, real, personal, or mixed, and in all lawful ways to use, employ, manage, dispose of such property, and all moneys belonging to the corporation, in such manner as should seem to the Trustees best adapted to promote the objects for which the corporation was formed." It was provided in case of donation, devise, or bequest, that the Trustees should accept the same and apply them in conformity with the conditions of the donor. Various amendments of the charter were made prior to the adoption of the present State Constitution, but they do not materially affect the question concerning which the President and the Board of Trustees of the University are interested. The college has been in operation since its establishment under the special act mentioned. ' I am asked whether if the Trustees of Rush Medical College desire to transfer all of its property, real and personal, to the Board of Trustees of the University of Illinois, in consideration that the property be devoted to the interests of medical education, and that the works be carried on in Cook County as contemplated by the articles of incorporation, they can legally do so; the Board of Trustees of the University of Illinois being willing to accept the property and devote it to the purposes involved in the consideration. The questions submitted for consideration are— 1. May the Trustees of Rush Medical College legally make such transfer? 2. May the Board of Trustees of the University of Illinois legally accept the property and perform the trust involved? OPINION. The power of the Trustees of Rush Medical College to do this thing contemplated is not entirely free from doubt. The corporation is eleemosynary in character and exists by virtue of a special charter that could not be granted under our present State Constitution, In obedience to the constitutional requirement that the General Assembly should provide by general law for the organization of corporations thereafter to be created, an act was passed in 1872 providing for corporate organizations and charters thru the office of the Secretary of State. They were divided into two general classes—corporations for pecuniary profit and corporations not for pecuniary profit. Many corporations then existing under special laws, passed before the adoption of the Constitution, continued to operate under the terms of their special charters. The Rush Medical College was so continued, although the Legislature in 1874 passed an act enabling colleges, academies and other institutions of learning which had been incorporated under special laws, to incorporate under % the provisions of the/general law of 1872. Under its special charter, it has received large donations, made, so I am advised, for the purpose of enabling It to carry on the educational work undertaken. It now owns an equipment and property which its Trustees may desire to transfer to the Board of Trustees of the University, under the belief that the purpose and mission of the college will thereby be more completely fulfilled. Have they the legal right to do so? The question is a new one in Illinois. I am not advised that it, or one closely resembling it, has ever been presented to any of our courts. In one form or another, it has been considered in Massachusetts, South Carolina, Tennessee and California. The President and Fellows of Harvard College desired to transfer to an organization, designated as the Society for Promoting Theological Education, certain funds which they held in trust for the benefit of a divinity school attached to Harvard College. They filed a bill in equity, praying for leave to make the transfer. As grounds for the prayer, it was alleged that it had become apparent to the complainants that the college and theological school could not be conveniently managed by one and the same corporation; that the exercise of the trusts of the public charity for a divinity school is in high degree inconsistent with and injurious to the due execution of another and prior trust vested in them as Trustees of the college; that the united management of the two institutions was also injurious to the divinity school, and that the Trustees of the college could not so acceptably fulfil the intents and purposes of the donors of that charity as the same might be fulfilled by other Trustees, and by a separate institution, wholly disconnected from the college. But the Massachusetts Supreme Court held that a chancery court could not permit the withdrawal of funds given by individuals to the Corporation of Harvard College in trust for the promotion of theological education at the college and for the benefit of a divinity school attached to the college, and intrust them to an independent board of trustees,- to be, applied to the support of a divinity school not connected with the college. 3 Gray's Reports, 280. Opinion delivered in 1855.