35 S.W. 1021 (Tenn.Ct.App. 1895), State v. Ausmus

Citation:35 S.W. 1021
Opinion Judge:NEIL, J.
Party Name:STATE v. AUSMUS et al.
Attorney:Jesse L. Rogers, for appellants. John P. Rogers and Taylor & Roberts, for appellee.
Judge Panel:BARTON and WILSON, JJ., concur.
Case Date:September 14, 1895
Court:Court of Appeals of Tennessee
 
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Page 1021

35 S.W. 1021 (Tenn.Ct.App. 1895)

STATE

v.

AUSMUS et al.

Court of Chancery Appeals of Tennessee.

September 14, 1895

Appeal from chancery court, Claiborne county; Hugh G. Kyle. Chancellor.

Action by the state, on relation of sundry citizens of Claiborne county, against John Ausmus and others, composing the president and trustees of Powell's Valley Male Academy. Decree for complainant, and defendants appeal. Affirmed.

Jesse L. Rogers, for appellants.

John P. Rogers and Taylor & Roberts, for appellee.

NEIL, J.

Bill filed, under Code, § 4147, by the district attorney general, on the relation of sundry citizens of Claiborne county, to remove trustees of an institution, charged to have been created for a public or charitable purpose, on account of misconduct of said trustees. The defenses are: First, that the institution was not created for a public or charitable purpose, but that it was and is a private enterprise, begun and conducted for the pecuniary profit of the individuals composing it, and hence not amenable to the action of a court of chancery, under the form of relief set forth in the bill; and, secondly, that the defendants are not guilty of the misconduct charged against them in the bill, but that, on the contrary, they have fully performed their duties as trustees of the institution which they represent. The chancellor decreed against the defendants upon both points, and removed them, and appointed new trustees in their stead. Error is assigned upon this action of the chancellor.

In order to properly determine the first contention, with due consideration to the evidence furnished by the respective parties, it will be necessary to give a short history of the origin of the institution, as disclosed by the record. On the 17th day of March, 1836, 52 citizens of Powell's Valley, in Claiborne county, Tenn., associated themselves together by an agreement in writing which appears in the record. After a preamble reciting the appreciation by the subscribers of the "arts and sciences," the instrument proceeds with a mutual covenant "to erect an academy on the plantation near one George Shelter, near Speedwell, to be known and called by the name of the Powell's Valley Academy"; also, "that we will pay the several sums annexed to our names in labor, material, etc., to be agreed upon and accepted by the trustees of the institution, which trustees shall be appointed as hereinafter directed in this agreement; that we will meet at the house of said George on the 26th day of March, 1836, and then and there appoint the trustees of this institution, who, when elected, shall have full power and authority to make all necessary contracts in relation to said building, and so soon as the said George Shelter shall make a title to the site upon which this academy is to be built, which title shall be made to said trustees and their successors in office, and so soon as a sufficient sum shall be subscribed to erect said building, of a proper size and dimension, and of substantial material, and of not less value than three hundred dollars." The instrument then proceeds: "That it is hereby agreed that subscribers shall be stockholders in this institution, in proportion to the amount that each shall subscribe, and in case of removal, or a disposition to discontinue an interest in said institution, he may sell and assign his interest in said stock, which shall vest said assignee with all the powers and privileges of his assignor; that no person shall have any vote or voice in the election of trustees, or anything else in relation...

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