People ex rel. Bd. of Trs. of Univ. of Illinois v. Barrett

• Decision Date: 11 March 1943
• Docket Number: No. 26947.,26947.
• Citation: People ex rel. Bd. of Trs. of Univ. of Illinois v. Barrett, 382 Ill. 321, 46 N.E.2d 951 (Ill. 1943)
• Parties: PEOPLE ex rel. BOARD OF TRUSTEES OF UNIVERSITY OF ILLINOIS et al. v. BARRETT, Attorney General, et al.
• Court: Illinois Supreme Court

382 Ill. 321

46 N.E.2d 951

PEOPLE ex rel. BOARD OF TRUSTEES OF UNIVERSITY OF ILLINOIS et al.

v.BARRETT, Attorney General, et al.

No. 26947.

Supreme Court of Illinois.

Jan. 21, 1943.

As Modified on Denial of Rehearing March 11, 1943.

Original petition for mandamus by the Board of Trustees of the University of Illinois and others against George F. Barrett, Attorney General, and others.

Writ awarded in accordance with opinion.Barnabas F. Sears, of Aurora, and Charles F. Short, Jr., of Chicago, for petitioners.

George F. Barrett, Atty. Gen. (William C. Wines, of Chicago, of counsel), for respondents.

SMITH, Justice.

This is an original petition for mandamus. The relators are the Board of Trustees of the University of Illinois and Norval D. Hodges and Sveinbjorn Johnson, individually. Hodges and Johnson are alleged to be employees of the university. The action is brought against the Attorney General and the Auditor of Public Accounts of the State of Illinois. Its purpose is to compel the payment of salaries alleged to be due to the individual relators; to prevent the Attorney General from interfering with Johnson and Hodges acting as counsel and assistant counsel, respectively, for the university and its Board of Trustees, and from interfering with them in the exercise of the asserted right to represent the Board of Trustees in a case now pending in the circuit court of Cook county.

Respondents appeared and filed an answer. With the consent of the parties, the answer was ordered to stand as a demurrer to the petition. The cause has been submitted on the petition and the answer thereto, treated as a demurrer, and upon briefs and oral arguments. On this state of the pleadings the facts well pleaded in the petition, as distinguished from conclusions of the pleader, must be taken as true.

The petition contains forty-five paragraphs. It is divided into seven divisions. For convenience these divisions will be followed in analyzing the averments of the petition.

The first division describes generally the organization and history of the university; its functions as an educational institution and its relationship, through membership in the North Central Association of Colleges and Secondary Schools, with other educational institutions. It is averred that the university was created by an act of the legislature in 1867, and has existed and operated under that act and supplemental and amending acts since that time; that it is a public tax-supported institution offering instruction in liberal arts and sciences, agriculture, mechanical arts and military science; that it operates various colleges and schools specializing in certain general and professional fields, such as Colleges of Law, Medicine and Dentistry, the Schools of Journalism, Physical Education and Graduate Studies; that the governing body of the university since its inception has been the Board of Trustees; that the trustees have power to adopt rules and bylaws, elect officers, prescribe the duties of its officers, and act generally as the policy-forming body of the university; that the board also is empowered to elect a President of the University, who acts as the executive agent of the board.

It is further alleged that the board has divided the university into various schools, colleges and departments, each administered by an officer designated as Director, Dean or Head of such department. For the purpose of providing instruction it is alleged that the board employs more than one thousand professors, associate professors, assistant professors, instructors and assistants; that full professors are hired on a permanent basis, and their employment can be terminated only by retirement, resignation, or discharge for cause after a full hearing before the board; that this plan is in conformity with the practice followed by similar educational institutions of higher learning, throughout the country.

The board has created an organization known as the University Senate, composed of full professors, the president, and certain other staff members. This group deals solely with problems of internal administration and educational policy, and recommends rules and regulations for adoption by the board. The rules and regulations, when adopted by the board, become the University Statutes and are binding upon the administrative agents, staff members and employees of the university; they deal with the organization of the schools, colleges and departments, terms of employment, policies regarding patents and research, student loans, gifts and trust funds, and any other matter which has to do with carrying out the general policies of the board.

It is averred that the board holds and administers trust funds for endowment and other purposes, including student loan funds of approximately $359,000; that pursuant to power granted by its charter, the board enters into contracts with its staff members, both teachers and administrative workers. The petition alleges the necessity for competing with other educational institutions in the securing of competent staff members. It also describes the accrediting system whereby the members of the North Central Association are constantly supervised and given accredited ratings only if they maintain certain standards of effectiveness as educational institutions; that in the interests of the citizens of the State it is imperative that the university retain its standing as an accredited institution; that in order to meet the requirements of the North Central Association for accredited status, it is necessary that the board alone shall have the responsibility for the employment or removal of the university staff members, and that no outside person or official shall have the right to order the dismissal of one of the staff members of the institution.

The second division of the petition relates to the position of relator Hodges. It is alleged that Hodges was hired in September, 1941, as Student Loan Assistant in the Bursar's Division of the Business Office, at a salary of $2100 per year; that Hodges, who is an attorney, was also given the title of Assistant University Counsel, with an additional salary of $900 per year; that $2100 of his annual salary is paid out of the student loan funds and $900 from the State appropriation for the University; that Hodges' duties are to assist in the administration of the student loan fund, and to supervise and assist in the collection and adjustment of loans; that the University Counsel, under the rules of the board, is ultimately responsible for the collection of the loans, but that Hodges performs most of the actual work in connection with the administration of the loan funds.

It is alleged that inasmuch as the student loan funds represent gifts from many individuals, and the board acts as trustee of these funds, it is imperative that the board alone control the hiring and firing of the staff members charged with the duty of administering the funds.

The third division describes the duties of relator Johnson. Johnson became a member of the university staff in 1926, as Professor of Law and Legal Counsel, succeeding the late Judge O. A. Harker in the latter position; that his title was changed in 1931, and in September, 1941, Johnson was designated in his written contract with the board as Professor of Law and University Counsel, at a salary of $9000 per year; that no apportionment of his compensation was made between his duties as professor and counsel; that the business office has since certified payroll vouchers to the Auditor of Public Accounts under the designation of ‘Sveinbjorn Johnson, Professor and Counsel.’ Johnson's duties as Professor of Law consist in teaching such courses in the College of Law as may be assigned to him, consulting with students, and supervising the preparation of law review notes. As University Counsel, his duties include preparing and checking legislative bills which affect the University, counseling with the president on administrative problems of mixed law and fact, collecting delinquent student loans and representing the board when requested. His primary status, however, is alleged to be professorial.

The fourth division is devoted to an exposition of the duties and activities, professorial and administrative, required by the board of many of the staff members of the university. For example, the Director of the Library is also the Director of the Library School and Professor of Library Science, the Provost of the University is also dean of one of the colleges and the Dean of the College of Medicine is head of the Department of Bacteriology, Pathology and Public Health and Professor of Pathology. Some staff members hold titles with other State and Federal departments; a Professor of Chemistry is, for example, Director of the State Water Survey and paid by the State Department of Registration and Education, whereas, the Dean of the College of Agriculture is also Director of the Extension Service. For his services in connection with the extension service he is paid with Federal funds.

Since 1906, the board has appointed one of the professors of law as Legal Counsel, or University Counsel. Johnson has held this position since 1926. His salary is paid by payroll vouchers certified to the Auditor of Public Accounts showing that he is employed as ‘Professor and Counsel.’ Other members of the College of Law faculty are also called upon for technical services, such as serving on the University Civil Service Committee, Committee on Accountancy, and University Retirement Committee. Johnson serves as secretary of the Committee on Patents, and in so utilizing his ability the board is merely following the procedure commonly adopted in university administration in other colleges.

In the fifth division the events leading up to the present action are set forth. It is alleged that during 1941 and 1942 the Attorney General suggested from time to time that he should select the counsel for...