Gabriel v. Board of Regents of University of Colorado, 11951.

• Decision Date: 30 April 1928
• Docket Number: 11951.
• Citation: 83 Colo. 582,267 P. 407
• Parties: GABRIEL v. BOARD OF REGENTS OF UNIVERSITY OF COLORADO.
• Court: Colorado Supreme Court

267 P. 407

83 Colo. 582

GABRIEL v. BOARD OF REGENTS OF UNIVERSITY OF COLORADO.

No. 11951.

Supreme Court of Colorado, En Banc.

April 30, 1928

Error to District Court, Boulder County; Robert G. Smith, Judge.

Suit by Clifford W. Mills against the Board of Regents of the University of Colorado, under the Declaratory Judgments Act to determine the validity of a contract, wherein John H Gabriel was substituted as plaintiff. Demurrer to complaint was sustained, and judgment entered against plaintiff for costs, and plaintiff brings error.

Affirmed.

Gabriel, Mills & Mills, of Denver, for plaintiff in error.

William L. Boatright, Atty Gen., Charles Roach, Deputy Atty. Gen and John C. Vivian, and Jean S. Breitenstein, Asst. Attys. Gen., for defendant in error.

BURKE J.

There parties appear here in the same order as in the trial court and we hereinafter refer to them as plaintiff and defendant.

This suit was brought by Clifford W. Mills under our Declaratory Judgments Act, to determine the validity of a contract. Defendant demurred to the complaint on the grounds of insufficient facts and want of jurisdiction. The demurrer was sustained, and judgment entered against the plaintiff for costs. To review that judgment he prosecutes this writ.

The contract in question reads as follows:

'Memorandum of agreement by and between the regents of the University of Colorado, hereinafter designated a the 'regents' and Clifford W. Mills, hereinafter designated as 'trustee,' witnesseth:

'For and in consideration of the covenants and agreements hereinafter made by the parties hereto, the trustee agrees to raise funds for and to erect and furnish dormatories for women upon the campus of the University of Colorado, said dormitories to be erected according to plans which shall be approved by the regents.

'In consideration of the agreement on the part of the trustee to furnish funds and to erect dormitories, the regents agree that the trustee shall have the sole use of said dormitories thus built for rental purposes to women students in the University and none other, and the regents further agree that this use in the trustee shall continue until such time as he or his assigns shall be fully repaid out of the rentals to be collected for any sums advanced for the purpose of building said dormitories, and the regents further agree to heat and light the said dormitories at their own expense, and to collect the rents therefrom for the trustee, and to apply the funds derived from rentals, first, upon the payment of interest at a rate not to exceed 5 1/2 per cent. per annum from any funds provided by the trustee for the purpose of erecting said dormitories, second, to provide a sinking fund to replace furniture as it may be needed, and to pay the surplus derived from rentals over and above the interest thus paid and the sinking fund to the said trustee or his assigns to apply upon the principal indebtedness.

'It is mutually understood and agreed that the said dormitories shall be run under rules and regulations to be made by the regents, and that no one shall be employed in, around or about the dormitories except by and with the approval of the regents.

'It is further mutually understood and agreed that the said trustee shall raise for the purpose of erecting said dormitories, a sum of six hundred thousand and no/100 ($600,000.00) dollars net, at a cost not to exceed 7 per cnet. of the principal amount of six hundred thousand and no/100 ($600,000.00) dollars, said cost of procuring the said funds to include all charges for sale of securities, legal expenses and trustee's fees; and

'It is expressly understood and agreed that the trustee shall receive no remuneration for the conduct of the said dormitories or any part thereof, except as herein specifically provided.

'In witness whereof the parties of the first part have caused these presents to be signed by its president and attested by its secretary, and the party of the second part has hereunto set his hand and seal this 13th day of October, A. D. 1926.

'Regents of the University of Colorado,

'By George Norlin, President.

'Attest: Frank H. Wolcott, Secretary. [Corporate Seal.]

'Clifford W. Mills.'

The complaint alleges 'that there is a question of the validity of said contract, in that it may be contended that the University has no authority to lease its property' that the 'contract may be in violation of sections 1, 3, and 5, art. 11, of the Constitution of the state of Colorado'; that 'the board of regents of the University of Colorado may not have...