Coffee v. William Marsh Rice University

• Decision Date: 04 February 1965
• Docket Number: No. 14472,14472
• Citation: 387 S.W.2d 132
• Parties: John B. COFFEE et al., Appellants, v. WILLIAM MARSH RICE UNIVERSITY et al., Appellees.
• Court: Texas Court of Appeals

Page 132

387 S.W.2d 132

John B. COFFEE et al., Appellants, v. WILLIAM MARSH RICE UNIVERSITY et al., Appellees.

No. 14472.

Court of Civil Appeals of Texas, Houston.

Feb. 4, 1965.

Rehearing Denied Feb. 25, 1965.

Bracewell, Reynolds & Patterson, Joe H. Reynolds, William Key Wilde, Wright Morrow, Houston, for appellants.

O. Don Chapoton, Alvin M. Owsley, Jr., Dillon Anderson, Tom M. Davis, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellees.

COLEMAN, Justice.

This suit was instituted by William Marsh Rice University and the duly appointed trustees thereof, for the purpose of determining whether, under a proper construction of the Indenture, pursuant to the terms of which the corporation was formed, the trustees, in the exercise of their discretion, are free to accept as students qualified applicants without regard to color and to charge tuition to those able to pay. The plaintiffs prayed, in the alternative, that the court authorize such action under the equitable doctrines of cypres and deviation, and for a declaratory judgment. The Attorney General of Texas was named defendant, and he answered and participated in the trial.

Appellants, John B. Coffee and Val T. Billups, filed a petition in intervention, in which they alleged that they were proper parties to the suit, 'having a direct interest in the subject matter of said suit, an adjudication of which cannot be made without affecting their interests as former students, alumni, donors, contributors and beneficiaries.' They also alleged that they intervened as representatives of a class, 'being many former students of and alumni of Rice Institute, as well as donors and contributors to Rice Institute, all being beneficiaries under the indenture under which William Marsh Rice established the Institute.' They alleged that they, and the class they represent, made donations and contributions to Rice University pursuant to the indenture and, therefore, have an interest in the subject matter of the suit and the right to have the indenture upheld in accordance with its terms.

Other individuals, ex-students and alumni of Rice University, also filed a petition in intervention for themselves and as representatives of a class, in support of the position of the trustees, and they have not appealed, nor were they named as parties in the appeal bond filed herein.

The trial court submitted the case to the jury on special issues, and, based on the verdict of the jury, entered his judgment that William Marsh Rice University may now and hereafter admit as students qualified applicants without regard to their color or race, and may now and hereafter charge tuition for attendance at said university.

The Attorney General did not file a motion for new trial, give notice of appeal, or in any manner attempt to perfect an appeal from this judgment, and has not filed a brief in this Court. The intervenors did give notice of appeal in the judgment, and, after their motion for new trial was overruled, complied with procedural steps required for appealing the judgment.

No motion to dismiss appellants' petition in intervention was presented to the trial court, and it appears that the Attorney General permitted appellants to take the lead at the trial. While appellees have not filed a motion to dismiss this appeal, or in any manner brought to the attention of this Court the right of appellants to appeal from this judgment, we have reached the conclusion that our jurisdiction over the subject matter of the appeal has not been properly invoked, and that we must decline to entertain the appeal for the reason that an examination of the petition and answer demonstrates that appellants have no justiciable interest in the controversy. City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638; Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223; Mueller v. Banks, Tex.Civ.App., 317 S.W.2d 256; Union Bus Lines, Inc. v. Southwestern Greyhound Lines, Inc., Tex.Civ.App., 250 S.W.2d 269, ref., n. r. e.; Gibson v. Richter, Tex.Civ.App., 97 S.W.2d 351; Green v. Green, Tex.Civ.App., 247 S.W.2d 583; State ex rel. Cavanaugh v. Nelson, Tex.Civ.App., 170 S.W. 814; McCarty v. Duncan, Tex.Civ.App., 330 S.W.2d 899.

The corporate charter of Rice University, in which the Trust Indenture is quoted, is attached to the plaintiffs' original petition. By its terms a public charitable trust was created. It provided for the creation of a corporation to which the trust funds were to be transferred. The income from such funds, and all future donations, were to be expended by it for specified purposes, all of which are purely charitable. Taysum v. El Paso National Bank, Tex.Civ.App., 256 S.W.2d 172, error ref.

The general rule applicable to the question with which we are concerned is well stated in Cannon v. Stephens (1932), 18 Del.Ch. 276, 159 A. 234, as follows:

'Where a suit is concerned with a public charity, the general rule undoubtedly is that the attorney general as representative of the public is a necessary party, and has the preclusive right to sue. The general rule is not an incident to the charitable nature of the trust. That which supplies the foundation for the rule that suit to establish, protect or enforce a public charity should be conducted by the attorney general as representative of the State, is its public nature. Where the charity is for the benefit of the public at large or a considerable portion of it and the language of its creation is such that no particular individuals can be pointed out as the objects to be benefited by it, the necessity of the case requires a holding that the representative of the public is the only party capable of vindicating the public's rights in connection with the charity, for in such case no individual can come forward and point to himself as the designated object of the charity's benevolence.'

This statement of the law is supported by decisions in the great majority of the states and a similar statement of the law is found in many texts and treatises concerned with public charitable trusts. Anno. 62 A.L.R. 881; 124 A.L.R. 1237; Burbank v. Burbank, 152 Mass. 254, 25 N.E. 427, 9 L.R.A. 748; Gibson v. Frye Institute, 137 Tenn. 452, 193 S.W. 1059, L.R.A.1917D, 1062; Stearns v. Newport Hospital, 27 R.I. 309, 62 A. 132; Clarke v. Oliver, 91 Va. 421, 22 S.E. 175; Dickey v. Volker, 321 Mo. 235, 11 S.W.2d 278, 62 A.L.R. 858; Amundson v. Kletzing-McLaughlin Memorial Foundation College, 247 Iowa 91, 73 N.W.2d 114; Kenney Presby. Home v. State, 174 Wash. 19, 24 P.2d 403; Brown v. Memorial National Home Foundation, 162 Cal.App.2d 513, 329 P.2d 118, 75 A.L.R.2d 427, cert. den. 358 U.S. 943, 79 S.Ct. 353, 3 L.Ed.2d 352; American Law Institute, Restatement of Law, Trusts 2d, Sec. 391; Bogert's Trusts and Trustees, 2nd Ed., Chapter 21; 15 Am.Jur.2d, Charities, Sec. 120.

A Texas case supports the rule that one having no duty relating to a public charitable trust, nor any peculiar or individual right, distinct from that of the public at large, in or to the trust property, has no justiciable interest in a suit to enforce the execution of the trust, or to require an accounting thereof by the trustees. Carroll v. City of Beaumont, Tex.Civ.App., 18 S.W.2d 813, error ref. In Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223, the court ordered a suit dismissed which had been brought by the Attorney General for the reason that the trust involved was a private trust and the Attorney General had no justiciable interest in its enforcement. The court said:

'Before a court of equity is authorized to interfere to enforce a charitable trust, its jurisdiction must be invoked by some party authorized to initiate the proceeding. * * *

'* * * the person or party initiating the proceeding must have some interest in the subject-matter of the suit, or he must have power to bring it by virtue of his office. The Attorney General only has power to bring such a suit when the trust or donation is to public charity only.'

In the City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754, the Supreme Court of Texas stated:

'* * * no action lies to restrain an interference with a mere public right, at the suit of an individual who has not suffered or is not threatened with some danger peculiar to himself. * * * It has been intimated that the reason this rule was established was in order to prevent a multiplicity of suits which might result if each individual were permitted to sue for damages resulting from a public nuisance which was common to all others, but we apprehend that the underlying principle is that individuals have a right to sue for a redress of their own private injuries, but for such as affect all the public alike an individual is not the representative of the public interest. The legislature of the state represents the public at large, and has full and paramount authority over all public ways and public places. * * * A suit in such case must be brought by such officer or officers as have been intrusted by the law-making power with this duty.'

The reasoning on which this case is based has been approved, and it has been cited frequently by the Supreme Court of Texas in subsequent cases. It was cited in Staples v. State, 112 Tex. 61, 245 S.W. 639, and the Court held: '[A]ppellees were not possessed of legal capacity or right to institute and maintain this suit, and therefore the district court and the judge of the district court of Navarro county were without jurisdiction to act upon or hear same.' See Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012; Yett v. Cook, 115 Tex. 205, 281 S.W. 837; Glover v. Cobb, Tex.Civ.App., 123 S.W.2d 794, error ref.; Adamson v. Connally, Tex.Civ.App., 112 S.W.2d 287; Wilson v. Pierce,...