Sterling v. Regents of the Univ. of Mich.,

• Court: Supreme Court of Michigan
• Writing for the Court: GRANT
• Citation: 68 N.W. 253,110 Mich. 369
• Decision Date: 28 July 1896
• Parties: STERLING v. REGENTS OF THE UNIVERSITY OF MICHIGAN.

110 Mich. 369
68 N.W. 253

STERLING
v.
REGENTS OF THE UNIVERSITY OF MICHIGAN.

Supreme Court of Michigan.

July 28, 1896.

Proceedings on the citation of Charles F. Sterling against the regents of the State University of Michigan for a writ of mandamus. Denied.

[68 N.W. 253]

Const. art. 13, § 2, provides that the proceeds of all lands granted to the state by the federal government, or lands or other property by individuals, for educational purposes, shall be inviolably appropriated to the specific objects of the original gift or grant.

In 1895 the legislature passed Act No. 257, Laws 1895, the material part of which reads as follows: “That the board of regents of the University of Michigan are hereby authorized and directed to establish a homeopathic medical college as a branch or department of said university, which shall be located in the city of Detroit, and the said board of regents are hereby authorized and directed to discontinue the existing homeopathic college now maintained in the city of Ann Arbor as a branch of said university and to transfer the same to the city of Detroit.” The title of the act is “An act to amend sec. one of an act entitled, ‘An act for the establishment of a homeopathic medical department of the University of Michigan,’ approved April 27, 1875, being sec. 4932 of How. Ann. St.” The regents of the university declined to comply with said act. The relator thereupon presented this petition for the writ of mandamus to compel the regents to comply with the act. The ground for such refusal is (1) that it was not, in their judgment, for the best interests of the university; (2) that the legislature has no constitutional right to interfere with or dictate the management of the university. Among other things in their answer, they say: “A large part of the course of instruction required to be given in the other medical department of the university, and in the homeopathic medical college, is common to the two schools. This fact has enabled the regents to provide for such common instruction at the expense, to that extent, of the support and maintenance of a single department; thus saving to the benefit of the university and to the people of the state a large sum of money annually, which otherwise would be required for the continuous support of two medical departments, which would be wholly separate throughout their several courses of instruction in case both departments of medicine were not located in the city of Ann Arbor. It appears to the regents that great advantage arises to the university as a whole, and to the students in the various departments of the university; that all the various branches of the university are located and maintained at the proper seat of the university, at Ann Arbor. It appears also to the regents that whatever suggestions may be made of the advantages to be derived by the homeopathic medical college, as a department of the university, by the removal of such department to a larger city, or to any other locality than the city of Ann Arbor, are suggestions which may, perhaps, be used for the removal of the other medical department of the university and other departments of the university to some other location than the city of Ann Arbor, by parties or interests desiring to secure such removal. It further appears to the regents that the removal of one of the established departments of the university suggests a movement for an entire change in that policy of concentration of the departments of the university at the proper seat of the university which has hitherto promoted the growth and advancement of the university to its present place among the great schools of the world. The claim which is made under the application of the relator, that the provisions of Act No. 257 command the discontinuance and removal of the homeopathic medical department of the university by the regents, without any reference to their power of supervision of the university, suggests to the regents the question whether such provisions do not curtail and impair the power of supervision and control of the university which has been vested in the regents by the constitution of the state. It is the purpose, as well as the plain duty, of the regents, to exercise, according to their best judgment, the supervision and control of the university, which has been vested in them by the state constitution, to promote both the interests of the university and the interests of the people of the state, which are involved in the welfare of the university. The regents have not undertaken to decide for themselves upon the wisdom or unwisdom of the purpose of the provisions of said Act No. 257, under which the relator's application is made. They have been advised that grave doubts exist in respect to the validity of said act. They have also been advised that to the extent that the provisions

[68 N.W. 254]

of the act are a foundation for the application for a writ to compel action on the part of the regents, denying their right to exercise judgment, supervision, or control in relation to the subject of the discontinuance of an existing department of the university, there are grave doubts in respect to the validity of the act.”

Geer & Williams, for relator.

Hanchett & Hanchett (B. F. Graves, of counsel), for respondent board.

GRANT, J. (after stating the facts).

1. The petitioner does not in his petition show any interest in the matter, or the right to question the action of the board of regents. The attorney general is the proper party to move in such a case, and a private citizen does not possess the right, without permission of the court, to apply for this writ to compel a public board to perform an omitted duty. People v. Regents of University of Michigan, 4 Mich. 98. The petition in this case does not set forth that the petitioner is a citizen of the state, or that he is in any manner injured by the action of the board. This point is not raised in the briefs of counsel, probably because it is desired to obtain a decision upon the merits. We think that such proceedings should be instituted by proper parties, and that relators should show themselves competent to bring them into court. Inasmuch, however, as the question has not been raised, we shall do as we have sometimes done before,-dispose of the case upon the main issue.

2. The University of Michigan was founded under an act of congress making an appropriation of lands for the support of a university in this state, approved May 20, 1826. In 1836 an act of congress was passed in which it was provided “that the 72 sections of land set apart and reserved for the use and support of a university by an act of congress approved May 20, 1826, are hereby granted and conveyed to the state, to be appropriated solely for the use and support of such university.” 5 U. S. Stat. 59. This grant of lands was accepted by the state by an act of legislature approved July 25, 1836. By the constitution of 1835 (article 10, § 5) it was provided: “The legislature shall take measures for the protection, improvement, or other disposition of such lands as have been or may hereafter be reserved or granted by the United States to this state for the support of a university, and the funds accruing from the rents or sale of such lands, or from any other source, for the purpose aforesaid, shall be and remain a permanent fund for the support of said university, with such branches as the public convenience may hereafter demand for the promotion of literature, the arts and sciences, and as may be authorized by the terms of such grant. And it shall be the duty of the legislature, as soon as may be, to provide effectual means for the improvement and permanent security of the funds of said university.” By subsequent acts of the legislature, the lands were sold, and the state received the proceeds, and they were made a permanent fund for the support of the university. In 1837 the university was located at Ann Arbor, upon a tract of land donated for that purpose. Laws, 1837, p. 142. The same legislature passed an act establishing the university, providing for a board of regents of 12 members, for 3 departments, and for the establishment of professorships. It also provided that the regents, together with the superintendent of public instruction, should establish such branches of the university in the different parts of the state as should from time to time be authorized by the legislature; also, for the establishment, in connection with each branch, of an institution for the education of females in the higher branches of knowledge, whenever suitable buildings should be prepared; and also for a department of agriculture.

Under the constitution of 1835, the legislature had the entire control and management of the university and the university fund. They could appoint regents and professors, and establish departments. The university was not a success under this supervision by the legislature, and, as some of the members of the constitutional convention of 1850 said in their debates, “some of the denominational colleges had more students than did the...