People ex rel. Tinkoff v. Northwestern Univ.

• Decision Date: 19 February 1948
• Docket Number: Gen. No. 44077.
• Citation: People ex rel. Tinkoff v. Northwestern Univ., 333 Ill.App. 224, 77 N.E.2d 345 (Ill. App. 1948)
• Parties: PEOPLE ex rel. TINKOFF et al. v. NORTHWESTERN UNIVERSITY et al.
• Court: Appellate Court of Illinois

333 Ill.App. 224

77 N.E.2d 345

PEOPLE ex rel. TINKOFF et al.

v.NORTHWESTERN UNIVERSITY et al.

Gen. No. 44077.

Appellate Court of Illinois, First District, Third Division.

Dec. 10, 1947.

Rehearing Denied Feb. 19, 1948.

Appeal from Circuit Court, Cook County; John Prystalski, Judge.

Mandamus by the People, on the relation of Paysoff Tinkoff, Sr., and his son, Paysoff Tinkoff, Jr., against Northwestern University and others to compel defendant university to admit Paysoff Tinkoff, Jr., as a freshman in the College of Liberal Arts of the University. From a judgment of dismissal, plaintiffs appealed to the Supreme Court, which transferred the cause, 396 Ill. 233, 71 N.E.2d 156, because a constitutional question was not involved.

Affirmed.

Paysoff Tinkoff, pro se.

Sidley, Austin, Burgess & Harper, of Chicago (James F. Oates, Jr., Ralph K. Ball, Howard P. Robinson and Mary V. Neff, all of Chicago, of counsel), for appellees.

KILEY, Justice.

This is a mandamus action seeking to compel defendants ‘to allow and to admit’ the registration of Paysoff Tinkoff, Jr., as a freshman in the College of Liberal Arts of Northwestern University. Defendants' motion to dismiss was sustained and the suit dismissed. Plaintiffs appealed from the judgment of dismissal to the Supreme Court. The cause was transferred to this court because a constitutional question was not involved. 396 Ill. 233, 71 N.E.2d 156.

After judgment and within thirty days plaintiffs made a motion for leave to amend their petition by adding an additional count. The court denied leave on the ground that the amendment was not for the purpose of conforming the petition to the evidence. The Civil Practice Act provides, in section 46(1), Ill.Rev.Stat. 1947, c. 110, § 170(1), for amendment before final judgment; and in section 46(3) for amendment ‘at any time, before or after judgment, to conform the pleadings to the proofs.’ The court ruled properly on the proposed amendment. McGlaughlin v. Pickerel, 381 Ill. 574, 46 N.E.2d 368.

The motion to dismiss admitted the facts well pleaded in the petition. The question is whether on those facts the trial court properly decided, as a matter of law, that the petition was substantially insufficient in that it failed to show a clear legal right to a writ of mandamus against the defendants.

Tinkoff, Jr. was born in November 1929; he was graduated, and received a diploma, from Senn High School, Chicago, in February 1945. The previous September he applied formally for admission to Northwestern University's College of Liberal Arts, and took and passed the requisite entrance examination. He was denied admission on the ground that, being fourteen years of age, he was too young for enrollment. At the time the certificate of his thirty-six high school credits and a letter from his father had not reached the University. Thirty-six credits met the entrance requirement of the University.

Following denial by the University, Tinkoff, Jr. filed a mandamus action in the Superior Court, seeking to compel his admission. The proceeding was dismissed ‘with the understanding’ that he would be permitted to register at the September term of 1945. Meanwhile, during the school year of 1944-45, he was enrolled in the University evening Commerce course, where he completed fourteen hours of work. In June of 1945 he was denied admission to the Commerce School summer course at the Evanston Campus. In September of 1945 he was again denied admission to the College of Liberal Arts. He was denied admission in these instances because he had filed the previous mandamus action in the Superior Court.

The grounds of the motion to dismiss were that no showing was made of a right in Tinkoff, Jr. to admission and no duty on the part of the University to admit him, and that the petition sought to join a mandamus action with an equitable action.

Plaintiff contends that the University is a private corporation affected with a public interest; that its charter was granted for the great public purpose of education of youth, and because of that purpose its property is exempted from taxation; that there was an implied condition and understanding in the grant that the University would perform its functions for the ‘common good of the public at large, and not for the benefit of a favored few’; and that Tinkoff, Jr. had the right of admission since he met the entrance requirements.

The charter of the University was granted January 2, 1851. It was amended in 1855, 1861 and 1867. The amendments are not important to this case. The charter provides that the trustees shall have power ‘to make and alter from time to time such by-laws as they may deem necessary for the government of said institution, its officers and servants; provided such by-laws are not inconsistent with the constitution and laws of this State and of the United States.’ It further provides that they shall have power to confer ‘on such persons as may be considered worthy’ degrees such as are usually conferred by similar institutions. It provides that the University's property should be held for educational purposes and not for the private benefit of trustees or contributors to the endowment. Power of visitation was lodged by the grant in appointees of the Methodist Episcopal Church.

There is no provision in the charter with respect to admissions. Section 8 authorizes appointment of a board to examine applicants for diplomas. Section by the for legal proceedings to forfeit the charter for any act contrary to the grant. Finally there is a provision that the charter should be construed liberally ‘in all courts' to aid the attainment of the purposes of the University.

The University is a private charitable corporation (Parks v. Northwestern University, 218 Ill. 381, 75 N.E. 991, 2 L.R.A.,N.S., 556, 4 Ann.Cas. 103), and its charter is a contract. Dartmouth College v. Woodward, 4 Wheat. 518, 17 U.S. 518, 4 L.Ed. 629. The Dartmouth College case is authority for the following principles: That education is an object of national concern and a proper subject of legislation; that the grant of a charter by a State to a private educational institution is given in consideration of the benefits the public shall receive through the education of the youth; that the charter is a contract whose obligations cannot be impaired by law; and that the legislature has only such power over the chartered institution as was reserved in the contract. There was no power reserved by the legislature of Illinois with respect to the admission of students at Northwestern University.

To say that the University though a private corporation is affected with a public interest is to beg the question. Those corporations are affected with a public interest which are amenable to State supervision. Triner Corp. v. McNeil, 363 Ill. 559, 572, 2 N.E.2d 929, 104 A.L.R. 1435. We cannot say that a private educational institution is in a business essentially public in its nature rendering the corporation so engaged subject to public control, as a telegraph and telephone company (Inter-Ocean Pub. Co. v. Associated Press, 184 Ill. 438, 56 N.E. 822,48 L.R.A. 568, 75 Am.St.Rep. 184), or a virtually monopolistic warehouse. Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77.

In Parks v. Northwestern University it was said that the charter secures to all persons of good moral character who have made sufficient preliminary advancement, the benefits of the University. In that case the court was considering the question of the University's liability in tort. Obviously the charter cannot secure to all who have made sufficient preliminary advancement the benefit of the University. A line must be drawn somewhere if there are more qualified applicants than can be accommodated. The educational facilities of this country have been strained to the utmost by the great number of...