Spence v. Utah State Agricultural College

• Decision Date: 08 December 1950
• Docket Number: No. 7573,7573
• Citation: 225 P.2d 18,119 Utah 104
• Parties: SPENCE, v. UTAH STATE AGR. COLLEGE et al.
• Court: Utah Supreme Court

Page 18

225 P.2d 18

119 Utah 104

SPENCE, v. UTAH STATE AGR. COLLEGE et al.

No. 7573.

Supreme Court of Utah.

Dec. 8, 1950.

Benjamin Spence, Salt Lake City, for plaintiff.

Clinton D. Vernon, Atty. Gen., for defendant.

Wm. H. Leary, Salt Lake City, amicus curiae.

LATIMER, Justice.

This is an original action commenced in this court by plaintiff to restrain the Utah State Agricultural College, a corporation, and its Board of Trustees, from proceeding further in the proposed issuance of bonds authorized to be issued and sold by Chapter 126, Laws of Utah, 1947.

In view of the importance of the questions originally suggested, and because the University of Utah believed it might be adversely affected by a decision in this case, permission was granted by this court to have counsel for that institution file a brief as amicus curiae.

In 1947, the legislature of this state enacted Chapter 126, Laws of Utah, 1947, which authorized and empowered the Board of Trustees of the Utah State Agricultural College to construct, equip and furnish buildings, or additions to existing buildings, on the campus of the Utah State Agricultural College; to issue revenue bonds to finance the cost of the construction; to fix rents, charges and fees to assure payment of principal and interest on such bonds; to enter into agreements to effect the purposes of the act; to make agreements with the United States of America or any agency or instrumentality thereof; and to lease or contract with certain non-profit corporations.

The Board of Trustees of the college, pursuant to this act, complied with the provisions necessary to issue bonds in the sum of $750,000 for the purpose of erecting a Student Union Building. Plaintiff seeks to restrain the sale and disposal of the bonds.

In the original petition filed by plaintiff it was sought to limit the court to a determination of one question only, namely, whether or not the proposed bonds constituted a debt within the meaning of the provisions of Section 2, Article XIII, and Section 1, Article XIV of the Constitution of the State of Utah, and therefore, invalidly authorized and issued because of violating the provisions of the two sections. Amicus curiae, however, sought to enlarge the issues and bring into focus all of the constitutional questions which have arisen in connection with numerous attempts by the legislature to control and supervise the fiscal policies, operations and functions of the two state institutions.

After giving consideration to the questions presented by the brief of amicus curiae, we have concluded that the principles therein discussed, with one exception--namely, is the Board of Trustees of the college legally constituted?--are severable from the issues presented by the Agricultural College and need not be discussed in this opinion. We dispose of this one question to set at rest any uncertainty as to the powers of the present Board to act within statutory or constitutional limits.

The legislation pertaining to the Utah State Agricultural College up to the time of statehood is substantially as follows: By Chapter II, Compiled Laws of Utah 1888, page 663, §§ 1852-1857, 1862, 1868, 1870, the Agricultural College of Utah was created. For convenience of the reader, sections of the chapter important to this decision are set out in full:

' § 1. There shall be established the Agricultural College of Utah, to be located at any place in Cache county that may be designated by the trustees.

' § 2. For the purpose of erecting suitable school buildings and purchasing land on which to conduct agricultural experiments, the sum of twenty-five thousand dollars, or so much thereof as is necessary, is hereby appropriated out of any money in the Territorial treasury not otherwise appropriated.

' § 3. The Governor and secretary of the Territory, and the assessors of the counties of Cache, Davis, Utah, Salt Lake and Sanpete counties and their successors in office shall be ex-officio trustees of the agricultural college.

' § 4. The trustees shall elect one of their number a president, and shall appoint a superintendent, a secretary, and treasurer. Said trustees shall take charge of the general interests of the institution, and shall have power to enact by-laws and rules for the regulation of all its concerns, not inconsistent with the laws of the Territory. They shall have the general control and supervision of the agricultural college, the farm pertaining thereto, and such lands as may be vested in the college by Territorial legislation, of all appropriations made by the Territory for the support of the same, and also of lands that may hereafter be donated by the Territory, or the United States, or by any person or corporation, in trust for the promotion of agricultural and industrial pursuits. They shall be required to immediately enter upon the duties of their office, and shall, with the exception of the Governor and secretary, qualify by giving bonds with security to the people of the Territory of Utah in the penal sum of one thousand dollars each, conditioned for the faithful performance of the duties of their office, to be approved by and filed with the auditor of public accounts.

' § 5. The trustees shall have supervision of the erection of the college buildings, and shall make all purchases and contracts for said buildings in accordance with such plans, drawings and specifications as the said trustees shall have adopted. They shall, in all contracts entered into, require bonds to be given for the faithful performance of the same, and shall keep an accurate record of their proceedings, which shall embrace copies of all contracts entered into, and a minute and accurate record of all expenditures showing the amount paid, to whom paid, and for what service rendered, and materials purchased, and whether paid on account or in performance of contract; and for all payments made vouchers shall be taken.

' § 6. The trustees shall make a report to the next general Assembly of the Legislature, showing the amount of work done, the condition of the buildings, a detailed account of the expenditures on the same, the amount of land bought, its cost and condition and the improvements thereon.

* * *

* * *

' § 11. When the said college shall be ready for organization the trustees shall establish the proper professorships, and appoint the professors and officers with their salaries and compensation. They can remove such officers at their pleasure.

* * *

* * *

' § 17. The trustees shall with the advice of the faculty prescribe the books to be used in the institution, and confer for similar or equal attainments, similar degrees and testimonials to those conferred by agricultural colleges elsewhere.

* * *

* * *

' § 19. The trustees of the agricultural college shall take charge of the agricultural experiment station, purchase suitable lands, erect needed buildings and appoint necessary officers and assistants to conduct the experiments mentioned in the preceding section. They shall cause bulletins and reports of progress to be published and mailed as required in the act of Congress aforementioned.'

In 1892 the Legislative Assembly for the Territory of Utah, Laws 1892, c. 37, amended the Act of 1888, the amendment of importance being that which affected Section 3, dealing with who were to be the trustees. After the amendment, the section read as follows: 'The governor shall appoint, subject to confirmation by the Council, seven trustees of the college.'

The foregoing acts are the only legislative pronouncements up to and including the year 1896. It was with this legislative history as a background that the Constitutional Convention considered Article X, Section 4, of the Constitution of the State of Utah, which, as enacted, provided as follows: 'The location and establishment by existing laws of the University of Utah, and the Agricultural College are hereby confirmed, and all the rights, immunities, franchises and endowments heretofore granted or conferred, are hereby perpetuated unto said University and Agricultural College respectively.' (Italics ours.)

For the purposes of this case we need not determine with refinement or nicety what the Constitutional Convention intended to grant to the Agricultural College when it used the phrase 'all rights, immunities, franchises and endowments heretofore granted or conferred.' We need only discuss whether, by the use of this terminology, the framers of the Constitution intended to freeze the size and composition of the Board of Trustees of the College so that its membership could not be increased by subsequent legislatures. In this connection we call attention to the fact that the trustees of the college are not contesting the acts of the legislature. Over the years they have accepted the legislative mandates, reorganized the board to comply with a number of legislative changes including those prescribed by Chapter 41, Laws of Utah, 1929, which vested control and supervision of the college in a board of trustees consisting of the Secretary of State and twelve resident citizens to be appointed by the Governor, and more recently reorganized to comply with the provisions of Chapter 90, Section I, Laws of Utah 1945, which provides for a board of fourteen members. Furthermore, they are presently acting in accordance with the legislative provisions which authorized the issuance of bonds.

In order to determine whether the legislative acts changing the number of trustees are constitutional, so that the board of trustees can exceed seven members, it becomes necessary to determine whether or not the amending sections in any way contravene the provisions of Article X, Section 4, previously quoted. If the legislative acts are not in conflict with the constitutional provision, it becomes our duty to give the latest one force and effect.

Prior to the adoption of the constitutional provision, the territorial legislative assembly had made changes in...