University of Utah v. Board of Examiners of State of Utah

• Decision Date: 22 March 1956
• Docket Number: No. 8253,8253
• Citation: 4 Utah 2d 408,295 P.2d 348
• Parties: d 408 UNIVERSITY OF UTAH, a body politic and corporate, Plaintiff and Respondent, v. BOARD OF EXAMINERS OF STATE OF UTAH and J. Bracken Lee, Heber Bennion, Jr., and Clinton D. Vernon, Members of said Board; Commission of Finance of the State of Utah and P. H. Mulcahy, Truman C. Curtis and Milton B. Taylor, Members of said Commission; Clinton D. Vernon, as Attorney General of the State of Utah; Reese M. Reese, as Auditor of the State of Utah and Ferrell H. Adams, as Treasurer of the State of Utah, Defendants and Appellants.
• Court: Utah Supreme Court

Page 348

295 P.2d 348

4 Utah 2d 408

UNIVERSITY OF UTAH, a body politic and corporate, Plaintiff and Respondent, v. BOARD OF EXAMINERS OF STATE OF UTAH and J. Bracken Lee Heber Bennion, Jr., and Clinton D. Vernon, Members of said Board; Commission of Finance of the State of Utah and P. H Mulcahy, Truman C. Curtis and Milton B. Taylor, Members of said Commission; Clinton D. Vernon, as Attorney General of the State of Utah; Reese M. Reese, as Auditor of the State of Utah and Ferrell H. Adams, as Treasurer of the State of Utah, Defendants and Appellants.

No. 8253.

Supreme Court of Utah.

March 22, 1956.

E. R. Callister, Jr., Atty. Gen., and H. R. Waldo, Jr., Asst. Atty. Gen., Salt Lake City, for appellants.

Wm. H. Leary, W. W. Ray, Athol Rawlins, Salt Lake City, for respondent.

WORTHEN, Justice.

This is an appeal from a declaratory judgment holding that Article X, Section 4 of the Utah Constitution establishes the University as a constitutional corporation free from the control of the Legislature, administrative bodies, commissions and agencies and officers of the State.

The action was instituted by the University of Utah, acting through its Board of Regents, against the named defendants alleging that said defendants, pursuant to claimed legislative and constitutional mandate, asserted the legal right to exercise control over and management of the University in derogation of the claimed rights of the University and its Board of Regents granted by Article X, Section 4 of the Constitution of Utah.

The defendants admit that they claim the right, and allege that it is their duty under legislative enactments authorized by the Constitution of Utah and by constitutional mandate, to exercise control over, and management of, the University. The defendants further deny that the University was, by Article X, Section 4 of the Constitution of Utah, granted a status which frees it from the control of the legislative bodies, commissions, agencies and officers of the State. Defendants assert that the University is subject to and bound by the laws of Utah from time to time enacted and to the jurisdiction and authority of defendants exercised pursuant to the laws of Utah conferring such control and management of said University. The questions raised as to control and supervision of certain funds and as to the claimed curtailment of powers of the University will be resolved by our construction of Article X, Section 4 of the Constitution of Utah which provides:

'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.'

The University of Utah prayed that a declaratory judgment be made and entered defining the rights, immunities, franchises and endowments which are granted, conferred and perpetuated unto it by Section 4, Article X of the Constitution of Utah; that a decree be made and entered declaring that the Legislature of the State of Utah has no power to authorize any or all of said defendants to interfere with or to assume, exercise or administer any of the rights, immunities, franchises or endowments granted and conferred unto the plaintiff in the management and control of the University, and that the defendants be restrained forever from assuming, exercising and administering any powers and acts which interfere with the management and control of the property and affairs of the University of Utah by its Board of Regents.

The defendants admitted the substantial allegations of plaintiff's complaint as to the legislative enactments complained of, but asserted the legality of the enactments, denied that plaintiff is a constitutional corporation, and alleged that plaintiff is a public corporation and subject to the laws of Utah from time to time enacted. The defendants pray that a declaratory judgment be entered declaring that the University is a state institution subject to and bound by the laws of Utah from time to time enacted.

The issues were submitted to the court upon stipulations of fact, and the trial court decreed that the University is a constitutionally confirmed body corporate, perpetually vested with all the rights, immunities, franchises and endowments of the territorial institution, beyond the power of the Legislature, all administrative bodies, commissions, agencies, and officers of the State of Utah to infringe upon, curtail, abrogate, interfere with or obstruct the enjoyment of the same, or otherwise, or at all, assume, or exercise any jurisdiction over the affairs of the University of Utah, and the powers of its Board of Regents, except for the general control and supervision conceded by the University to the State Board of Education.

The trial court declared unconstitutional certain statutes which treated the University as other state institutions, requiring preaudit of bills, submission of work programs and deposit of funds into the State Treasury, including University funds from appropriations and dedicated credits.

What is the effect of the quoted section on the power of the Legislature to act respecting the University?

We must determine what rights, immunities, franchises and endowments are perpetuated unto the University by Article X, Section 4 of the Constitution. In order to answer this question, resort must be made to territorial laws fixing the rights and status of the University at the time the Constitution was adopted.

That the issues and questions presented may be understood, it is deemed advisable to set out the history of the plaintiff University in full detail.

1. The University of the State of Deseret was instituted and incorporated by an ordinance of the State of Deseret approved February 28, 1850, reading as follows:

'Sec. 1. Be it ordained by the General Assembly of the State of Deseret: That a University is hereby instituted and incorporated, located at Great Salt Lake City, by the name and title of the University of the State of Deseret.

'Sec. 2. The powers of the University shall be vested in a Chancellor and twelve Regents; the number of which Regents may be increased when necessary, who shall be chosen by the joint vote of both Houses of the General Assembly, and shall hold their office for the term of four years; and until their successors are qualified.

'Sec. 3. The Chancellor shall be the chief executive officer of the University, and chairman of the Board of Regents.

'Sec. 4. The Chancellor and Board of Regents are a body corporate, to sue and be sued; to act as Trustees of the University, to transact, or cause to be transacted, all business needful to the prosperity of the University in advancing all useful and fine arts and sciences; to select and procure lands; erect and purchase buildings; solicit donations; send agents abroad; receive subscriptions; purchase books, maps, charts, and all apparatus necessary for the most liberal endowment of any library, and scientific institution; employ professors and teachers; make by-laws, establish branches of the University throughout the State; and do all other things that fathers and guardians of the Institution ought to do.

'Sec. 5. The Chancellor and Regents may appoint a Secretary, and define his duties.

'Sec. 6. The Chancellor, Regents, and Secretary, before entering upon the duties of their respective offices, shall each take an oath of office, and file a bond in the office of the Secretary of State, with approved securities, in a sum not less than ten thousand dollars, conditioned for the faithful performance of their several duties; which sum may be increased at the discretion of the Executive of the State.

'Sec. 7. There shall be a Treasurer of the University elected in the same manner, and for the same time as the Chancellors and Regents; whose duty it shall be to receive and safely keep the funds of the University, or dispose of the same, as he shall be directed by the Board of Regents; and keep accurate records of all funds that may come into his possession; and keep his books open at all times for the inspection of the Chancellor and Regents, or any of them, and of the Executive and Secretary of State.

'Sec. 8. The Treasurer, before entering upon the duties of his office, shall take an oath of office, and file a bond with approved security, in the office of the Secretary of State, in the sum of one hundred thousand dollars; conditioned for the faithful performance of his duties, which sum may be increased at the discretion of the Executive of the State.

'Sec. 9. Should a vacancy occur in the Board of Regents, or any office in the Institution, during the recess of the General Assembly the Executive of the State may fill such vacancy.

'Sec. 10. It shall be the duty of the officers of the University, to prepare and open books; and be ready to receive subscriptions, donations and appropriations, on or before the sixth day of April next; and shall legibly enter upon their books, all subscriptions and donations to the University, with the names of the donors, time and place, and preserve the same.

'Sec. 11. The Board of Regents shall have a seal, known as the seal of the University; which may accompany all their official correspondence, and all other legal documents given under the hands of the Regency of the University.

'Sec. 12. It shall be the duty of the Chancellor and Board of Regents, as soon as the funds arising from donations or otherwise may justify, to establish a free school institution for the benefit of orphans, and other indigent worthy persons.

'Sec. 13. The Secretary and Treasurer shall each present a full and explicit report in writing of the situation, funds, and doings of the University in their several departments, by the fifteenth of October in each year, to the Auditor of Public Accounts.

'Approved Feb. 28th, 1850.' (Emphasis added.)

2. The...