Dunn v. University of Oregon

By the Court, Watson, J.: That the state university itself was incorporated under the [360] provisions of the act of October 19, 1872, entitled “An act to create, organize and locate the University of the State of Oregon,” is not claimed; but that the “ board of directors ” created by that act was an incorporated body, can hardly be denied. Section 2,declares: “The general government and superintendence of the university shall vest in a board of directors, to be denominated the board of directors of the University of Oregon,” to consist of nine members, all of whom shall be citizens and permanent residents of the state of Oregon.” Section 4 provides: “ The board of directors shall have the custody of the books, records, buildings, and all other property of the university. All lands, moneys, bonds, securities and other property which shall be donated, transferred or conveyed to the said board of directors by gift, devise, or otherwise, for the use and benefit of the university, shall be taken, received, held and managed, invested and reinvested, sold, transferred, and in all respects managed, and the proceeds thereof used, bestowed and invested in the manner, for the purpose and under the terms and conditions respectively prescribed by the act of gift,' devise, or other act, in the respective cases. They shall have power, and it shall be their duty, to enact by-laws for the government of the university; to elect a president of the university, and the requisite number of professors, instructors and employes, and to fix their salaries and the term of office of each, and to do all other acts necessary and proper to carry out the design of this act,” Sections 11 and 12 provide, that on or before January 1, 1874, “The Union University Association of Eugene City, Qregon, shall secure a site for said university at or in the vicinity of Eugene City, and erect thereon and furnish a building for the use of the state university, on a plan to be approved, and after the erection of the.same, to be accepted by the board of commissioners for the sale and management of the school and university lands, and for the investment of the funds arising therefrom; said building and furniture to be [361] of not less value than fifty thousand dollars; and to convey the said site and building, in fee simple, free from all incumbrances, to said board of directors, on or before said January 1, 1874.” By an amendatory act, passed October 16, 1874, the time was extended to January 1, 1877, for securing such site and building and conveying them to the board of directors. While it cannot be denied that some of these powers might be exercised by a board of directors in their collective capacity, without being incorporated, it is equally undeniable that some of them could not. The capacity and power to take conveyances of lands and hold and dispose of them for the use and benefit of the university, according to the various and diverse trusts imposed upon them by their donors, and to transmit title to lands to their successors in office in perpetual succession, without intermediate conveyances, could not belong to this board of directors unless incorporated. It is true the legislature has not declared it to fie a corporation in express terms, but this was not essential. (Angell and Ames on Corporations, section 76; Thomas v. Dakin, 22 Wend., 70, 103, 106.) “ It is, indeed, a principle of law which has been often acted on, that where rights, privileges and powers are granted by law to an association of persons by a collective name, and there is no mode by which such rights can be enjoyed, or such powers exercised, without acting in a corporate capacity, such associations are, by implication, a corporation, so far as to enable them to exercise the rights and powers granted.” (Angelí and Ames on Corporations, sec. 78.) But it is contended by appellants that whether incorporated or not, the board of directors are mere agents or officers of the state, and hold the property in controversy in trust for the state, the real party in interest. Hence they infer that the board of directors are shielded by the immunity from suit which belongs to the state. But this is an error. The im [362] munity of the principal in such a case does not extend to the agent. It matters not if the state is the real party in interest, provided the legal title and possession are in the agent, so that it is not necessary to make the state a party on the record. Osborn v. The Bank of the United States, 9 Wheat., 738; Michigan State Bank v. Hastings, 1 Douglas, [Mich. R.,] 225; Garr v. Bright, 1 Paige Ch., 157.) An agent of the state, whether incorporated or not, by virtue of his character simply, possesses no such immunity from being sued. He must show in his defense to an action or suit for interfering with private rights, that he proceeded within the authority conferred by a valid law, or his defense must fail. We think these propositions are clearly established by the authorities cited, and in our view of the questions presented by the transcript, they are decisive in the case before us. It is not necessary to decide whether the board of directors, under the act of October 19, 1872, is a public or private corporation. The decision in either case must be the same. The plaintiffs allege the facts showing that they were prior bona fide creditors, and have reduced their claims to judgments against the Union University Association, a private corporation, docketed them' and issued executions, which have been returned wholly unsatisfied, and that the conveyance to the board of directors was not only voluntary, but made with intent to defraud them out of their just demands, and that the board of directors had full knowledge of such purpose. Upon the demurrer the facts stand confessed. They had a plain right to the remedy they resorted to, and the decree was entirely proper. The decree of the court below is affirmed with costs. Decree affirmed.