Smyth v. Visitors, Etc., of Phillips Academy
| Decision Date | 28 October 1891 |
| Parties | SMYTH v. VISITORS, ETC., OF PHILLIPS ACADEMY, (two cases.) |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Appeal under a statute of Egbert C. Smyth from the decree of the Board of Visitors of Phillips Academy removing him from the office of professor of ecclesiastical history and a bill in equity by the trustees of the academy against the attorney general and others asking for instructions as to the validity of the decree. Hearing before the full bench. Decree set aside, and bill dismissed, without prejudice.
Theo. W. Dwight, S.E. Baldwin, C.T. Russell, W. Gaston, and C.E Barrows, for appellant.
E.R Hoar, Asa French, and A.H. Wellman, for visitors. G.O. Shattuck and J.C. Gray, for trustees.
The Theological Institution in Phillips Academy in Andover has a peculiar organization. In 1778 the academy was founded by Samuel Phillips and John Phillips, "for the purpose of instructing youth, not only in English and Latin grammar, writing, arithmetic, and those sciences wherein they are commonly taught, but more especially to learn the great and real business of living," and was placed under the control of a board of trustees. In 1780 this board was incorporated by an act of the state of Massachusetts Bay as "The Trustees of Phillips Academy," with a view to accomplish more successfully the purpose of the original founders. The act provides that these trustees "and their successors shall be the true and sole visitors, trustees, and governors of the said Phillips Academy in perpetual succession forever;" and gives them power to make such laws, orders, and rules as to them seem best. They are authorized to receive gifts, and to hold them, "on such terms, and under such provisions and limitations, as may be expressed in any deed or instrument of conveyance to them made;" provided that the condition of the grant or donation does not require them "to act in any respect counter to the design of the first grantors or of any prior donation." 5 Prov.Laws (State Ed.) c. 15, p. 1418. By the last will of John Phillips, proved and allowed on April 18, 1795, one-third of the residue of his property was given to the trustees of Phillips Academy, "for the benefit more especially of charitable scholars," and it was provided that those who expected to become clergymen might be assisted in the study of divinity by "some eminent Calvinistic minister of the gospel." By the statute of 1807, c. 22, the corporation is authorized to hold "for the purpose of a theological institution, and in furtherance of the designs of the pious founders and benefactors of said academy," real and personal estate the income of which is "to be always applied to said objects, agreeably to the will of the donors, if consistent with the original design of the founders of the said academy." Afterwards, in the same year, Phoebe Phillips and others established and endowed "a public theological institution in Phillips Academy," on the condition that it "be accepted by the trustees aforesaid, and that it be forever conducted and governed by them and their successors in conformity to" certain "general principles and regulations" which they unitedly adopted as the constitution of the institution. Under this constitution, and the preceding legislative act of the same year, the theological institution became a department of Phillips Academy, the management and control of which were in the corporation, under regulations or statutes which were set out at length in the instrument creating it. The trustees were charged with the duty of conducting the institution in conformity with the wishes of the donors as expressed in these regulations, and elaborate provisions were made prescribing methods of management. At the same time certain visitorial powers were reserved to the founders in article 32 of the instrument, which is as follows: "Notwithstanding this seminary is placed by this constitution under the immediate care and government of the trustees of Phillips Academy, it is always to be understood, and it is hereby expressly declared, that every founder of a professorship, scholarship, or any other living whatever within this institution, will have the exclusive right of prescribing the regulations and statutes to be observed by the said trustees in conducting the concerns of the same; said regulations and statutes being always consistent with the principles and objects of this institution; and also the right, for the term of his life, of appointing in the original deed or grant such local visitor or visitors as he may think proper, and to endow him or them with all visitorial powers and authorities necessary to secure and enforce due observance and execution of his said regulations and statutes." This was the original foundation of the theological institution in Phillips Academy.
In 1808 Moses Brown and others gave a fund of $40,000 to the corporation, the income of which is to be applied to the maintenance of two professors in the theological institution, and by certain elaborately drawn instruments they prescribed the terms on which the gifts were made and the manner in which they were to be used. These gifts were accepted by the trustees, and the regulations for the management of them are entitled "The Statutes of the Associate Foundation in the Theological Institution in Andover," or the "Associate Statutes." In May, 1808, in pursuance of a power reserved by them in the original constitution, the original founders, Phoebe Phillips and others, by additional regulations, brought the original statutes into conformity with the associate statutes in all important particulars. In general character, the statutes of the associate foundations differ but little from the original statutes. They leave the whole management and control of the theological institution in the board of trustees, who constitute the corporation, and who hold the property subject only to a visitatorial power in the board of visitors, whose general duty is to visit the corporation, and see that the trustees manage the institution in conformity with the statutes, and if errors or abuses are discovered to correct them, and subject, also, to a right and duty on the part of the visitors to take original supervisory action in two or three matters in the management; as in the examination of professors prior to their inauguration, and in the approving or negativing the election of a professor by the trustees, and in appointing a standing committee to ascertain the qualifications of applicants for admission to the seminary.
The first part of article 12 of the associate statute is as follows: "That the trust aforesaid may be always executed agreeably to the true intent of this our foundation, and that we may effectually guard the same in all future time against all perversion or the smallest avoidance of our true design as herein expressed, we, the aforesaid founders, do hereby constitute a board of visitors, to be, as in our place and stead, the guardians, overseers, and protectors of this our foundation, in manner as is expressed in the following provisions." By article 20 it is provided that "the power and duties of the board of visitors thus constituted and organized shall be as follows, namely, to visit the foundation once in every year, and at other times when regularly called thereto; to inquire into the state of this our fund, and the management of this foundation, with respect both to professors and students; to determine, interpret, and explain the statutes of this foundation in all cases brought before them in their judicial capacity; to redress grievances, both with respect to professors and students; to hear appeals from decisions of the board of trustees, and to remedy upon complaint duly exhibited in behalf of the said professors or students; to review and reverse any censure passed by said trustees upon any professor or student on this foundation; to declare void all rules and regulations made by the said trustees relative to this foundation, which may be inconsistent with the original statutes thereof; to take care that the duties of every professor on this foundation be intelligibly and faithfully discharged, and to admonish or remove him either for misbehavior, heterodoxy, incapacity, or neglect of the duties of his office; to examine into the proficiency of the students, and to admonish, suspend, or deprive any student for negligence, contumacy, or any heinous crime committed against the laws of God or the statutes of this foundation; and, in general, to see that our true intentions expressed in these our statutes be faithfully executed,--always administering justice impartially, and exercising the functions of their office in the fear of God, according to the said statutes, the constitution of this seminary, and the laws of the land." The powers and duties of the trustees in regard to the affairs of the corporation remain as prescribed by the original act of incorporation and the amendatory act, and by the original constitution of the theological institution, except so far as they are abridged or modified by the associate statutes.
We have before us two cases,--one the appeal of Egbert C. Smyth from the decree of the visitors of the Theological Institution in Andover removing him from this office as Brown professor of ecclesiastical history; the other a bill in equity brought by the trustees of Phillips Academy against the attorney general and others, asking for the determination and instruction of the court in regard to the validity of the above-mentioned decree of the visitors. It is contended by the appellant in the former case, and by the plaintiff in the latter case, that the provision for a board of visitors in the...
To continue reading
Request your trial