State ex rel. Wyoming Agricultural College v. Irvine

• Decision Date: 31 January 1906
• Citation: 84 P. 90,14 Wyo. 318
• Parties: STATE EX REL. WYOMING AGRICULTURAL COLLEGE ET AL. v. IRVINE, STATE TREASURER
• Court: Wyoming Supreme Court

84 P. 90

14 Wyo. 318

STATE EX REL. WYOMING AGRICULTURAL COLLEGE ET AL. v. IRVINE, STATE TREASURER

Supreme Court of Wyoming

January 31, 1906

ORIGINAL proceeding in mandamus.

Heard on demurrer to petition and alternative writ. The facts are stated in the opinion.

C. W Burdick, for respondent, in support of the demurrer.

The relators are without capacity to sue in this proceeding First, as to the trustees, because (a) the said trustees are not the real party in interest, and (b) because by act of the Legislature the said trusteeships have been abolished; and second, as to the Agricultural College, because (a) the said Agricultural College is not the real party in interest, and (b) said college being a mere state agent has no power to bring this or any other action unless such power is conferred upon it by express statutory authority.

Under the language of the acts of Congress making the donations which are claimed for the alleged college here in question, the grants and donations in each case run directly to the several states and territories, and not to colleges, institutions or subordinate organizations located therein. Hence, the ownership of the grants and donations is in the states and not in such organizations as may have been created or established by charter or act of State Legislatures. The ownership being in the states, they alone are the parties who could properly pursue the funds if lost, stolen or diverted, and in this proceeding the state alone is the real party in interest who can complain of any diversion or misuse of the money, grants or donations, and neither the acts of Congress, nor any subsequent legislation by the State of Wyoming, show the trustees of the Agricultural College as trustees, or the Agricultural College itself to have such an interest in the said grants as to give them the interest and capacity to sue. Nor do they possess individually or collectively, or as an organization, such capacity.

With respect to the capacity of the trustees, we contend, (a) That they are disqualified under the code. Section 3467, Revised Statutes, 1899, with certain exceptions not found here, provides that "Actions must be prosecuted in the name of the real party in interest." Trustees of a corporation, either public or private, are mere agents and not the real parties in interest. Under some circumstances they hold the legal title to property of the corporation, and in such cases they possibly would be permitted to sue in their own names as trustees in a court of law, but even then the beneficiary could intervene. (Thomp. on Corp., Sec. 7593.) The trustees in this case, however, are mere agents of the state, appointed by the state, responsible to the state, without authority from the state to prosecute actions of any kind. They are not vested with any interest in the property sought to be recovered, and, as shown by the acts of Congress, the state is the party having the real title ownership and interest in that property. They have not even a beneficial interest, and in the absence of either a real or beneficial interest cannot, under the provisions of Section 3467, Revised Statutes, 1899, prosecute this suit. (Hunter v. Com'rs., &c., 10 Ohio St. 515.)

A further disqualification on the part of the trustees to sue arises from the fact that the trusteeships which they here allege they are occupying have been abolished by act of the Legislature. Whatever may be contended as to the power of the Legislature to repeal that portion of the act of 1891, creating and locating an agricultural college, and referring to the Agricultural College, there can be no question of the power of the Legislature to abolish the trusteeships created by that act; and this was done by the act of 1905.

The trustees authorized to be appointed by the act of 1891 are mere agents of the state within legislative control. The terms of office provided in said act, as well as the salaries, and including even the offices, could be modified, altered or even abolished by act of the Legislature. (Head v. Univ., 47 Mo. 226; State ex rel. Hamilton v. Grant, 81 P. 798.)

Concerning the power of the Agricultural College to appear as relator in this proceeding, there are two objections: (a) As in the case of the trustees, the college is not the real party in interest. We have noted the terms of the Federal statutes making it quite apparent that the donations therein made were grants to the several states, and not to any of their subordinate organizations or agencies. Hence, it follows that the states, as the owners of the subject matter of the action, would, in any proceeding based thereon, be the real party in interest, and under our code any such action should be prosecuted in the name of the state upon the relation of the Attorney General. The view herein expressed, that the property in the grants and donations made by the Government of the United States is in the states and not in the agencies or institutions to be ultimately benefited by the grants, is confirmed by the views of courts. (Trustees, &c., v. Winston, 5 S. & P., 24.)

The real party in interest in any action is the one possessing the ownership of the subject matter, and where the question of capacity is raised, one not possessing such ownership, and not coming within the exceptions named in Section 3467, cannot prosecute an action for the recovery of such subject matter. The action cited is exclusive in its scope and disqualifies any and all persons not coming within the classification of "the real party in interest" or not coming within any of the exceptions of the statute.

In Section 4197 it is provided that the writ of mandamus may issue on the information of the party beneficially interested. And on behalf of the Agricultural College as relator, it may be contended that that institution is shown to have such a beneficial interest in the funds sought to be recovered as to bring it within the purview of the section cited. To determine whether or not such an interest has been created would necessitate a discussion of the scope, effect and standing of certain legislative acts and the effect upon those acts of certain clauses of the constitution. That particular discussion belongs to another section of this argument. It will be made by co-counsel and its application will become apparent as the argument progresses.

But this proposition may well be interposed at this point as pertinent, i. e., that even though a relator in an application for a writ of mandamus be shown by the pleadings or otherwise, to be beneficially interested in the subject matter, still he may not prosecute the action unless he have capacity to sue. If, therefore, the Agricultural College be lacking in the capacity to sue, it is immaterial whether it have a beneficial or any other interest in the subject matter of the action.

(b) A second ground that disqualifies the Agricultural College as relator is the fact that it is a mere creature of the Legislature and a mere agent of the state, upon which no express power either to sue or to be sued has been conferred by its creator. Depending upon the circumstances of their creation and organization, colleges and universities have been held to be either public or private corporations, or even mere state agents, without any corporate powers whatever. When chartered by act of the Legislature, or incorporated under general law, but endowed from private sources, they are private corporations with the granted and incidental powers such as all corporations possess, including, if granted or necessarily incidental to their existence, the power to sue and be sued; but when created by legislative enactment providing for public control, with officers and trustees responsible to the state, or if created for the purpose of carrying out public objects or benefits, they become either public corporations or mere state agents, not possessing corporate powers other than those expressly conferred by the act of the creation.

Upon the assumption that the Agricultural College created by the act of 1891 was a corporate entity, it does not fall within any of the judicial definitions of a private corporation, but is a public institution or corporation, as determined by the act creating it, upon the definitions given of such an institution or corporation. (Trustees, &c., v. Winston, 5 S. & P., 17; Louisville v. Univ., 15 B. Mon., 650; Univ. v. Maultsby, 8 Ired. Eq., 257; Head v. Univ., 47 Mo. 226.)

In some states the courts have gone to the extent of holding that organizations such as state universities and colleges are not even corporations, but mere creatures of the Legislature incidents of the government, and mere agents for the purpose of carrying out its objects. (Weary v. Univ., 42 Iowa 335.) The elements necessary to classify the Agricultural College of Wyoming as either a public corporation or a mere state agent are present in the act of its creation, but if upon this question there was any doubt it would be sufficient to call attention to the language of Section 1 of the act wherein it is provided that the college shall be "a state public educational institution." This language seems beyond any cavil to fix the character of the institution as an arm or part of the state, a mere wheel of its machinery, and necessarily, therefore, within its absolute control. It is our contention that the Agricultural College, being a public corporation or mere agent of the state, cannot maintain an action in any of the courts of the state, unless it have that power conferred upon it by express authority, and it is an established rule that grants of powers to corporations are to be strictly construed. (Com'rs. v. Mighels, 7 Ohio St. 115; Hunter v. Com'rs., 10 Ohio St. 520; Sayre v. Road, 10 Leigh, 454; ...