Lewis v. Whittle

• Decision Date: 19 April 1883
• Citation: 77 Va. 415
• Parties: LEWIS AND ALS v. WHITTLE AND ALS.
• Court: Virginia Supreme Court

77 Va. 415

LEWIS AND ALS v. WHITTLE AND ALS.

Supreme Court of Appeals of Virginia.

April 19, 1883

Absent, Lewis, P. ^[a1]

On petition for a writ of mandamus by John F. Lewis and eighteen others, who, on 22d September, 1882, were appointed by his excellency, William E. Cameron, governor of Virginia as a board of visitors of the Medical College of Virginia from this court, to command the respondents therein, to-wit F. M. Whittle and eighteen others, who, before that day, constituted the board of visitors of that college, to deliver to the petitioners the possession thereof, which they have hitherto refused to do. The petition sets forth the appointment of the petitioners by the governor, and claims the right of the petitioners to have possession of the college by reason of said appointment.

The respondents answer that they are the rightful visitors of the college, holding their office under the charter of the college, and deny the authority of the governor to remove them from their office of visitors.

The remaining facts and the questions raised are stated in the opinion of the court.

Attorney-General F. S. Blair, for the petitioners.

Joseph Christian, W. W. Henry, John W. Johnston, and Guy & Gilliam, for the respondents.

OPINION

LACY, J.

The first question raised in this case is as to the nature of the proceedings. The respondents say that mandamus will not lie in this case; that they can be removed from office only by quo warranto, and that they cannot be so removed by mandamus. This question has been so often and so recently settled in this court that it cannot be now regarded as an open question.

Without entering at length into a discussion of the nature and origin of the writ of mandamus, it is sufficient to say it is an extraordinary remedy in cases where the usual and ordinary modes of proceeding are powerless to afford remedies to the party aggrieved, and when without its aid there would be a failure of justice.

Wherever there is a right to execute an office, perform a service, or exercise a franchise, more especially if it be a matter of public concern, and a person is dispossessed of such right and has no other specific adequate remedy, then the court ought to assist by mandamus upon reasons of justice, as expressed by the writ, and upon reasons of public policy, to preserve the peace, good order and good government. It ought to be used on all occasions when the law has established no specific remedy. Whatever may be the rule elsewhere, it may be safely laid down as the doctrine of this court that mandamus is the true specific remedy for a wrongful deprivation of an office. What other specific adequate remedy has these petitioners, if they are clearly entitled to this office? If, as suggested, quo warranto should be adopted, and the petitioners should succeed there, they would not thereby be put in possession of what they seek, but might still be put to the necessity of mandamus for relief. They might succeed by quo warranto in removing their adversaries from the office, and yet need the mandamus to put them in possession. No proceeding that will give them less than they ask can be said to afford them a specific and adequate remedy, if they are entitled to what they seek. Under the quo warranto information, judgment might remove the occupants, but would not install the claimants. They might still find it necessary to ask other process against some other person or officer who might deem it his or their duty to keep them out.

We think that although there may be other adequate remedies, there is no other so complete as mandamus. See opinion of Staples, judge, in Johnson v. Mann, Judge, & c., lately decided in this court, and not reported, and the opinion of Judge Richardson, in the same case, on a rehearing in this court, and authorities there cited. 77 Va. 265.

It is earnestly contended by respondents that this college is a private corporation and not under the control of the governor, or any other public authority, and this is the second question upon which we are to pass.

In 1854 the Medical College was incorporated, with a board of visitors-- nineteen in number, and the said visitors were named in the charter.

By the seventh section it was provided, that " whenever any vacancy shall occur in the said board by reason of death, resignation or otherwise, then the governor shall fill the same, selecting the visitors so appointed from each of the grand divisions of the state."

The board of visitors were required to make an annual report to the second auditor, such as is required by the twelfth section of the eighty-third chapter of the Code.

In the charter, the legislature reserved the right at its pleasure to modify, alter, or repeal the charter, provided for an acceptance by the then existing faculty, and disclaimed any intention by the legislature to reflect on the trustees of Hampden-Sidney College, or the faculty of the medical school in Richmond.

Before the passage of this act there was a medical school in Richmond, which was under the patronage of Hampden-Sidney College. Dissensions between the faculty of the medical school and the trustees of Hampden-Sidney College led to the act of incorporation seen above. In 1860 the legislature appropriated $30,000 to this college upon the condition that the college authorities should execute and record a deed conveying all the property of the college to the literary fund of the state; this deed to be drawn by the attorney-general and approved by the governor. This deed was executed, and by another act of February 26, 1866, the legislature of the state appropriated $1,500 to the said college, which has been annually appropriated by the legislature ever since. This brief history of this college shows that once in its history it was a private school; that upon its solicitation, and by the consent of its authorities it was incorporated, and the succession of its board of visitors placed under public control; that by subsequent solicitation and consent it parted with all its property to the state, and executed and delivered a deed to the state for the same, and received from the state $30,000. That subsequently it has solicited and received $1,500 annually from the state, and has undertaken to submit an annual report, on the part, both of its board of visitors and of its faculty, to a public officer of the state; so that it now appears, by its own consent, to have become a public corporation, holding its life and chartered existence, and the possession of all its property, at the pleasure of the legislature of the state.

Strictly speaking, public corporations are such only as are founded by the government for public purposes--where the whole interest belong also to the government.

The Trustees of Dartmouth College v. Woodward, 4 Wheaton 669. See opinion of Story, judge.

This medical college is in every sense a public corporation, made so in the manner already stated. The visitors of this college are then holding under an act of the legislature a public office or employment, subject to the control and direction of the state--to be appointed and to be removed by competent public authority. The visitorial power of this college is therefore in the state of Virginia, and to be exercised under the laws of the state. What is the competent public authority vested by law with the power to remove the visitors of the said college? This is the last and only question in this controversy about which there can be any real dispute.

To this question, in fact, has been mainly directed the efforts of the counsel who have argued this case here. Many authorities have been cited, and illustrations drawn from the common law and its ancient offices. But the tenure of ancient common law offices, and the rules and principles by...