Stevens v. Thames , 204 Ala. 487 ( 1920 )

I am of the opinion that section 267 of the Constitution, prohibiting the removal of the University of Alabama and other institutions there named, except upon a vote of two-thirds of the Legislature, when considered in connection with section 264, applies to the removal of the University, as located at Tuscaloosa when the Constitution was adopted, and not to the Mobile Medical College, a mere subsidiary located in another congressional district.

I am not persuaded that the state is precluded by section 22 of the Constitution or the contract clause of the federal Constitution (article 1, § 10), under the influence of the Dartmouth College Case, from removing or abolishing the medical department of the University as now existing, located at Mobile, for the reason that it is now unquestionably a part of the University of Alabama, and under the management and control of its trustees, and to every intent and purpose is a state agency. White v. Alabama Insane Hospital, 138 Ala. 479,35 So. 454. It is true that this court held in the case of State ex rel. v. Sowell, 143 Ala. 494, 39 So. 246 that the Mobile College was not under the absolute control of the state, so as to bring it within the influence of section 73 of the Constitution as to appropriations to institutions "not under the absolute control of the state," and arguendo or by dicta stated in effect that, notwithstanding the charter act of 1860 (Acts 1859-60, p. 348) made it a part of the University of Alabama, it was a separate and distinct corporation, under the absolute control of its own governing board, and came within the influence of the Dartmouth College Case, and that the state had no control of its property, or the right to alter or change the location thereof, unless a request for such purpose or for a change of the charter was made by two-thirds of the board of trustees.

I do not care to commit myself to the soundness of these expressions, which were not decisive of the real point involved in said case, as the Mobile College was expressly made a part of the University by the charter act, whether it had absolute control of same or not; still these expressions have been in the books for 15 years, and interested parties seem to have acted thereunder in all succeeding acts of the Legislature and dealings with each other, and I am therefore willing to concede that the Mobile Medical College had a binding contract with the state under the charter act of 1860, and which could not be altered or abrogated by the state without the assent of two-thirds of its board of trustees; but, in my opinion, this consent has been given, and the charter heretofore granted by the state has been effectually and legally dissolved. This was done by Acts 1907, p. 357. True, it does not appear that the passage of this act was procured by two-thirds of the board of trustees of the Mobile Medical College, and if such was not the case it might not be binding; but this record discloses a conveyance made by the Medical College on May 20, 1907, not only conveying all its property to the University of Alabama, but setting forth by preamble the passage of the act of March 6, 1907, dissolving the corporation, and that its board of trustees took steps to procure the passage of same.

This not only discloses that the act was passed at the instance of the trustees of said Medical College, but would be a complete ratification of same, had they not procured its enactment, and the very moment that they consented to a dissolution of the corporation they thereby surrendered any contractual rights that they may have had under their original charter, and put the institution, so to speak, entirely at the mercy and control of the state of Alabama. It may be true that the act dissolving the charter and transferring the corporation "provided" that the said medical department shall remain in Mobile for all time, but this could be no contractual obligation on the part of the state as to the future maintenance and location of its own agency. As long as the Medical College retained its charter, any obligations on the part of the state with it may have been of a contractual nature; but the very moment that it consented to a dissolution of the charter and a resultant merger of the medical department into the University of Alabama, it thereby became a state agency, and was chargeable with notice of that legal principle that the state could make no legal binding contracts with reference to the future maintenance, management, and control of its governmental or other public agencies, and this proviso in the act may have been a high moral promise upon the part of the state to permit this college to remain at Mobile, but was in no sense a legal contract on its part to do so.

In other words, the contractual clause of the federal and state Constitutions has no application to obligations on the part of the state as to the location, conduct, or management of its own institutions. Newton v. Board of County Commissioners,100 U.S. 548, 25 L. Ed. 710. It is true this case involves what might be termed a governmental agency, strictly speaking; but the rule there declared can well be applied to the different departments of the state, such as the University, the Insane Hospital, and other institutions, educational, charitable, or otherwise, which it controls and selects as an agency for carrying on special kinds of work for its benefit or for the public interest. Moreover, the deed in question recites certain facts leading up to the execution of same, among which is some doubt upon the part of certain state officials as to the efficacy of the act in question, and said deed expressly pretermits the proviso clause as set out in the act. This, however, is of course not conclusive that the deed was not Influenced by the proviso in the act; but, be that as it may, the proviso had no binding legal effect upon the state as a contractual obligation with reference to the location and maintenance of its own institutions, though it should perhaps be treated by our lawmakers as a high moral obligation, when dealing with said medical department, that is, under ordinary or normal conditions, for even that proviso could hardly fasten the moral obligation upon the state to maintain the institution at Mobile under abnormal conditions, or when to do so would, perhaps, be impracticable or impossible. This, however, is a question which must address itself to the lawmaking body, and with which the court cannot deal.

It is also urged that Acts 1915, p. 133, violates section 264 of the Constitution, because it attempts to deprive the trustees of the University of Alabama of a discretion as to the management and control of the University. We do not think that the act in question invades the powers of management and control of the trustees, within the provision of section 264, but relates to a matter within the legislative power of the state, and which is not included in the powers of management and control of the trustees, as governed by said section 264 of the Constitution. Nor are we persuaded that the direction to the trustees to act upon a status to be ascertained by the American Medical Association is a delegation of legislative authority, as the Legislature provides the law, as well as the subject upon which it shall act, and merely authorizes an ascertainment of a status upon a highly expert authority. It results that the bill is without equity, and the decree of the circuit court in upholding same is hereby reversed, and one is rendered dismissing the bill.

Reversed and rendered.

SAYRE, SOMERVILLE, GARDNER, THOMAS, and BROWN, JJ., concur.

McCLELLAN, J., being a member of the board of trustees and party to the cause, is therefore disqualified, and did not sit or participate in the consideration of this cause.