Head v. Curators of the Univ. of Missouri

• Decision Date: 31 January 1871
• Citation: 47 Mo. 220
• Parties: B. S. HEAD, Appellant, v. THE CURATORS OF THE UNIVERSITY OF THE STATE OF MISSOURI, Respondents.
• Court: Missouri Supreme Court

47 Mo. 220

B. S. HEAD, Appellant,

v.THE CURATORS OF THE UNIVERSITY OF THE STATE OF MISSOURI, Respondents.

Supreme Court of Missouri.

January Term, 1871.

Appeal from Fourth District Court.

B. S. Head, for appellant.

The acts pleaded in bar impair the obligations of a contract; are retrospective, and therefore violations of the constitutions of this State and of the United States. (Allen v. McKeen, 1 Sumn. C. C. 314; Dartmouth College v. Woodward, 4 Wheat. 518; Louisville v. Louisville University, 15 B. Monr. 674; 7 Gray, Mass., 33; St. Johns College v. The State, 15 Md. 373-4.)

Although the university may be a public corporation and its curators public officers, still the teachers employed by these curators, like the teachers in the public district schools, are mere servants and employees for hire. (15 B. Monr. 728.) They are not necessarily citizens of this State or of the United States, and not usually even required to be qualified by official oaths. From the nature of their employment they are favored, and contracts for their services are construed by the courts to be under the protection of the United States constitution, without regard to the nature of the schools in which they are engaged. (See Allen v. McKeen, supra; Dartmouth College v. Woodward, 4 Wheat 654, 583; 15 B. Monr. 728.) The word “contract” is used in connection with the tenure of professors in the original charter of the university (Sess. Acts 1839, p. 181), and in the amended charter (R. C. 1855, p. 1503, § 30). Even in the case of a public officer, he can claim protection under the constitution of the United States for his contract to hold his office and recover its emoluments for the period of his appointment, subject, however, to the legislative power to abolish the office, or to subject it to any modifications or changes. A distinction is to be drawn between that legislation which respects the office itself and that which aims alone at the incumbent. (Const. Mo. 1856, art. II; 1 Stark. Ev. 217; 7 Ohio, 82; Fletcher v. Peck, 6 Cranch, 87; State v. Fry, 4 Mo. 187; id. 194; 44 Mo. 570.)

The university is a private corporation. The funds for its foundation and support were originally contributed by Columbia College, itself a private corporation (2 Ter. Laws of Mo. 375), by divers private citizens and by the United States government. The funds given and the terms and objects of the gift by Columbia College are alone sufficient to constitute the university a private corporation. Its property was “vested in the State for the uses specified in the grant.” (Sess. Acts 1839, p. 186, § 15.) It became a college--the only college--of the university, under the original statutes of its foundation, with the condition expressed in the law that it should not thereby lose its corporate existence. It thus constituted the nucleus around which the university was built. (Sess. Laws 1839, p. 178, § 27; id. 184, §§ 9-11; ia. 186, §§ 13-15; 7 Gill. & Johns. 7; Edwards v. Jagers, 19 Ind. 407; Allen v. McKeen, 1 Sumn. 302; Dartmouth College v. Woodward, 4 Wheat. 518; Louisville v. Louisville University, 15 B. Monr. 674.)

The words “subject to law,” in the resolution fixing the appellant's tenure, had no reference to any subsequent law. He was subject to all laws that the Legislature might afterward constitutionally pass, and a resolution of the board could not make him more or less so. The reference was to the law laid down in the charter then in force, defining his duties, rights, and disabilities, and allowing him a trial, a hearing, and the privilege of testimony, without which he was not to be removed. (R. C. 1855, pp. 1502-3, §§ 24-30.) The law was part of the contract. (6 Cranch, 87; 4 Mo. 184.)

Guitar & Prewett, for respondents.

I. The State University of Missouri is a public corporation, subject alone to the government and control of the Legislature, upon whose will it depends solely for its existence and perpetuity; the curators being chosen by the Legislature, without any power to appoint their successors. (The University of North Carolina v. Maultsby, 8 Ired. Eq. 257; 5 Stew. & P. 17; 10 Leigh, 454; Dartmouth College v. Woodward, 4 Wheat. 518, 568.)

II. The Legislature has the power to alter or modify the law establishing and governing the State University, to create its offices and to abolish the same, to prescribe and change the tenure thereof, and to fix and allot their salaries; and these powers have been exercised time and again, without question or restraint, from the foundation of the institution. (Sess. Acts 1847, pp. 135-6; Sess. Acts 1849, p. 129; Sess. Acts 1851, pp. 294-5; Sess. Acts 1852, p. 171; Sess. Acts 1845, p. 7; Sess. Acts 1859-60, pp. 191-2; R. C. 1855, p. 1499, §§ 4, 24; Bush v. Shipman, 45 Scam. 190.)

III. The plaintiff held the office of “Professor of Mathematics” by election, and not by virtue of any contract with defendant; he could resign at will, and the State could remove him at pleasure. (Conner v. The City of New York, 2 Sandf., S. C., 355; R. C. 1855, p. 1502, § 24; State v. Davis, 44 Mo. 129; Prim v. City of Carondelet, 23 Mo. 22; Smith v. The Mayor of New York, 57 N. Y. 518.)

IV. Under the law by virtue of which plaintiff held the office of librarian, he could hold it only by the will of the board of curators. (R. C. 1855, p. 1500, §§ 10, 27.)

V. If defendant is entitled to the office he must get possession by a proper process, and earn the salary before he can recover it of the defendant. (Smith v. The Mayor, 37 Mo. 518; State v. Auditor, 34 Mo. 375; 36 Mo. 70; Winston v. Auditor, 35 Mo. 146.)

VI. The donations made by the citizens of Boone county and Columbia College to the “building fund” of the university constitutes no part of its endowment, and was a mere bonus to secure its location. Its income and support are derived solely from public bounty. (3 U. S. Stat. at Large, 547, 591; R. C. 1845, p. 1031, §§ 21, 23.)

CURRIER, Judge, delivered the opinion of the court.

In July, 1856, the curators of the University of the State of Missouri ““elected” the plaintiff to the professorship of mathematics in that institution. The election was for a term of six years, “subject to law.” The salary attached to the professorship was $1,350 per annum. The plaintiff was also appointed librarian for a like term of six years, with an annual salary of $100. The term of office in each case commenced on the 5th day of July, 1856. The plaintiff accepted the appointments and discharged the duties of the respective positions for four years, and was paid for his services.

On the 17th day of December, 1859, the Legislature passed an act vacating the offices of all the “professors, tutors, and teachers connected in any manner with the university;” that is, it was enacted that the term of office of the parties named respectively should expire on the 5th day of July, 1860. It was also enacted that the board of curators should go out of office upon the election of their successors, according to the provisions of the same act. (Sess. Acts 1859-60, p. 91; see also the explanatory act of January 14, 1860, id. 92.)

The plaintiff rendered no service after the 4th of July, 1860. He avers, however, that he held himself in readiness to do so to the conclusion of his original term of office; that is, to July 5, 1862. This suit is brought to recover the salaries attached to the respective offices for two years, namely: from July 5, 1860, to July 5, 1862. In bar of the suit the defendants pleaded the acts of December 17, 1859, and January 14, 1860. The only questions which it is necessary to consider relate to the constitutional validity of these acts. The plaintiff denies the right of the Legislature to control the university, and insists that the acts in question are in conflict with that provision of the constitution of the United States which prohibits the States from passing any law impairing the obligation of contracts.

Whether the university and its affairs are subject to the direction and control of the Legislature, depends upon its character as a corporation, whether public or private. If it is a private corporation, the Legislature has no control over its internal management. On the other hand, if it is a public corporation--a State institution--it is subject to the discretionary control of the lawmaking department of the State government.

The university is clearly a public institution, and not a private corporation. It was established by an act of the Legislature, which was passed February 11, 1839 (Sess. Acts 1838-9, p. 176). The act commits the government of the institution to a board of fifteen curators. The curators were not named in the act, but provision was made for their election by a joint vote of the senate and house of representatives. They were removable at the pleasure of the Legislature, and had no power to appoint their successors. (Sess. Acts 1838-9, p. 176, §§ 1-3.)

There are no named grantees in the act, and consequently no parties either to accept or reject the grant. In a word, the State entered into no compact with private parties. The State established an institution of its own, and provided for its control and government, through its own agents and appointees. The act creating the institution, in its first section, declares that a “university is hereby instituted in this State, the government whereof shall be vested in a board of curators.” The university is then (§ 2) declared a “corporation and body politic” and invested with certain powers. These powers are given into the hands of a board which was made subject to the pleasure of the Legislature. This is not the way in which a private corporation is brought into being and endowed with corporate franchises. A private corporation involves the idea of private parties and...