Attorney General ex rel. Saunders v. Albion Academy & Normal Institute

Lyon, J. The controlling question to be determined on this appeal is, Gan the attorney general maintain the action? The rule by which it must be determined is tersely and accurately stated by the learned counsel for the relator, as follows: “ The question whether the attorney general cam, sue, or whether -the suit must be brought by some private party, depends upon whether the injury sought to be redressed is,public in its nature, affecting public interests, or whether it is merely [480] private, affecting private rights and interests only. In tbe latter case tbe attorney general cannot sue; in all others be can. In case' of a wrong wbicb is also a public as well as a private injury, tbe attorney general may sue in respect to .tbe public injury, although a private person may also sue in respect to his private injury.” This is tbe doctrine of Att'y Gen. v. The Railway Cos., 35 Wis., 425, and of nearly or quite all of tbe numerous authorities on the subject, both English and American, there cited. Pages 523-534. The defendant the Albion Academy and Normal Institute is a private corporation. The fourth section of its charter, copied in the findings of the court, is somewhat ambiguous; but it is sufficiently apparent that the legislature intended that its property and franchises should be owned and controlled by the subscribers to its funds, through a board of trustees to be elected by them. The most convenient and equitable way in which this could be done, was to capitalize the subscriptions and divide the stock into shares, each representing a specified sum, giving to the holder of each share one vote in all corporate meetings of the subscribers or stockholders, and in the election of trustees. Section 4 clearly recognizes the subscribers to the fund as the stockholders of the corporation, and that some of them may be entitled to a plurality of votes in corporate meetings of stockholders. Without referring to the charter of the Albion Academy and Teachers’ Seminary, ch. 195, P. & L. Laws of 1853 (which was the predecessor of the present corporation, and was, unmistakably, a stock corporation), to explain the ambiguity in section 4 of the charter of the defendant corporation, we have no difficulty in holding that the latter is a private stock corporation, and that the subscribers to its funds are the stockholders. But it is argued that, although such is the nature of the corporation, still its franchises are public, and an abuse of them a public wrong, to correct which the attorney general may intervene. We find in the charter two restrictions upon the corporation. These [481] are: (1) “ No religious tenets or opinions shall be requisite as a qualification for the office of a trustee, nor shall any religious tenet be required of students to entitle them to all the privileges of the institution, and no sectarianism shall be taught or tolerated in said institution, or any department thereof.” Section 5. (2) “ Persons of both sexes shall be admitted to all the advantages of the institution.” Section 6. Subject to these restrictions (no violation of either of which is alleged), the corporation may admit as students or reject whoever it chooses, and may fix any reasonable rate of charges for tuition. No one can claim the right to receive instruction in the institution on any terms, and no provision is made for gratuitous instruction. It is a private enterprise, and if it yields a profit, undoubtedly the stockholders may divide it equitably among themselves; or they may wind up its affairs and divide the corporate property or its proceeds between them, after paying the debts of the corporation. ■ Such a corporation is not a charity. It lacks many, if not all, the essential elements of a public eleemosynary corporation. True, it is a corporation for educational purposes, and the public has an interest in the dissemination of knowledge. The same may be said of a corporation which maintains a church, or gymnasium, or library, or lyceum, or which publishes books or newspapers; for the religious, intellectual, moral and physical education of the people are, in the same sense, of public interest. Yet the purposes for which such corporations are created are not public in that sense which necessarily authorizes the attorney general to intervene in behalf of the public or the state to correct abuses of their franchises. Unless a public wrong is being committed, or some fundamental principle of public policy violated, the only remedy is by private action instituted by the party or parties aggrieved. In this case we find no such wrong or violation complained of, and we think the circuit court properly dismissed the complaint. Ve have considered the case on principles of general [482] law, because it was mainly argued from that standpoint; but we have a statute which is, in some sense, a codification of the general law concerning visitorial powers over corporations. Under that statute the attorney general may maintain actions in a great variety of cases to correct abuses of corporate franchises and to annul charters (R. S., 833, secs. 3237, 3239); but it is expressly declared that these provisions “ shall not extend to any incorporated library or lyceum society, to any religious corporation, or any incorporated academy or select school, nor to the proprietors of any burying-ground incorporated under the laws of this state.” Section 3251. That the Albion Academy and Normal Institute is “ an incorporated academy or select school,” within the meaning of the statute, we cannot doubt. So, whether we consider the case in the light of general rules of law, or of the statute, we reach the same conclusion, which is that the attorney general cannot maintain the action. By the Gourt. — The judgment of the circuit court is affirmed.