Toledo v. Seiders

WILDMAN, J. This is an action instituted in the court of common pleas and appealed to this court to restrain the board of education of the school district which includes the city from interfering with the possession of certain property, known as the Manual Training School, on. land owned by the board of education and heretofore leased by it to the Toledo University. There are certain other minor issues involved which I will not stop to recite. The case involves a more extended and elaborate discussion than almost any other case recently presented to us, and it would be interesting perhaps to review again to some extent the history of the trust originally given by Jessup W. Scott and others, for the endowment of what in its inception was called a University of Arts .and Trades. The attempted acts of the board of education are based mainly now upon Gen. Code 7921, which provides as follows: , — 614 — “The custody, management and administration of any and all estates or funds, given or transferred in trust to any municipality for the promotion of education, and accepted by the council thereof, and any institution for the promotion of education heretofore or hereafter so founded, other than a university as defined in this chapter, shall be committed to, and exercised by, the board of education of the school district including such municipality. Such board of education shall be held the representative and trustee of such municipality in the management and control of such estates and funds so held in trust and in the administration of such institutions, excepting always funds and estates held by any municipality which are used to maintain a university as heretofore defined.” In Gen. Code 7905 we find: “A university supported in whole or in part by municipal taxation, is defined as an assemblage of colleges united, under one organization or management, affording instruction in the arts, sciences and the learned professions, and conferring degrees.” The contention of counsel for the board of education is substantially that the1 institution now known as the Toledo University, the trustees of which, heretofore appointed by the mayor of the city, are asserting a right to the control of the property Involved in the trust, is excluded from this definition; that it is not an assemblage of colleges, such as Gen. Code 7905 describes, and consequently that the administration of the trust is committed by Gen. Code 7921 to the board of education. The principal contention upon the other side is. that the legislature had no power to take away from the municipality or the trustees appointed by the mayor of the municipality the control of this trust; in other words, that if Gen. Code 7921 is to be construed as claimed by counsel for the board of education, it is unconstitutional and invalid. Questions involving the trust to which reference has been made, have been in litigation for many years, and have several times been brought to the attention of our court. There is one ease, that of the State v. Toledo, 26 O. C. C. 628 (5 N. S. 277), in which the question of the power of the legislature to take — 615 — the control and management of these funds and this property from the trustees of the Toledo University and pass them over to the board of education, was considered and passed upon. But it is earnestly urged upon us by counsel for the board of education that the conclusions arrived at by the court in that case ought not to stand; that they were based upon some confusion in the minds of the members of the court as then constituted as to the relations of the original incorporated Toledo “University of Arts and Trades” to the “Toledo University,” so named;— some confusion perhaps as to any line of demarkation between the two. The syllabus of the case perhaps sufficiently expresses the judgment of the court as then held. The case, which presented the question of the constitutionality of Gen. Code 7921, was decided October 10, 1904. The syllabus is as follows: “The legislature is without authority to take the entire control and management of the Toledo University, and its property, from the trustees appointed by the mayor, and pass it over to the city board of education.” This ease is conclusive of the main question in contention »now before us, unless we depart from the view then arrived at. To my mind there is some confusion in a part of the phraseology used by Judge Haynes in the opinion as we find it reported, but when we read all the cases in which these various matters pertaining to this trust have been litigated in this court, it is hardly conceivable that its members have not been at all timas fully apprised of the history of this benefaction. They have had knowledge of the terms of the original grant, of the communications made to the city council by the persons interested in the corporation known as the Toledo University of Arts and Trades; of the resolutions of council; of the appointment of the ttustees by a mayor of the city of Toledo to take over the property; of the conveyance to the city and transfer of the powers and functions to the trustees of the Toledo University as agents of the municipality to carry out the purposes of the original donors; and finally they were apprised of this statute, the construction and validity of which are now under consideration. In the conclusion at which we have arrived, perhaps we — 616 — are not disposed to place precisely the same reliance as an authoritative adjudication of the whole matter upon the case of State v. Neff, 52 Ohio St. 375 [40 N. E. Rep. 720; 28 L. R. A. 409], as was placed upon it in the opinion of Judge Haynes; hut the circuit court in the Waldron case was not oblivious of the general current of authority in the United States touching benefactions of this kind, involving trusts for the endowment of institutions of learning of one character or another, the Girard Will case, the Dartmouth College case, and numerous other adjudications involving principles analogous to those considered and announced in these two great leading cases by the Supreme Court of the United States. This case is one of much importance, and for that reason has drawn out from counsel the unusual research and ability of argument which invite a wider range of discussion on my part than perhaps it is wise to give to it. It is hardly worth while to review the history of the transactions. Reference may be made to that history so far as it is recounted in the earlier cases brought into this court an.d found reported, and I will merely cite them so that they may be read if necessary: State v. Toledo, 13-23 O. C. C. 327 (3 N. S. 468), (to which I may make a little further reference later); Waddick v. Merrill, 26 O. C. C. 437 (5 N. S. 103), and the case already cited, State v. Toledo, 26 O. C. C. 628 (5 N. S. 277). We are not inclined to think that in the consideration of these issues, too much reliance should be placed upon the character and scope, either of the present Manual Training School as it has been constituted and conducted, or on the other hand upon the scope and character of what is known as the Toledo University as now organized, managed and conducted in the city of Toledo. To some extent these matters are interesting for such light as they may throw upon the intention of the original donors; but the ultimate execution of that intent is not to be prevented or interfered with by legislative enactment or judicial decree, simply because it has not yet been fully carried out. It is contended, however, by counsel for the board of education, that when the original donation was made by Jessup W. Scott and others, they had in contemplation only an — 617 — institution such as that now known as the Manual Training School, such a one as has been conducted by the board of education in the'city of Toledo. We feel quite clear from an examination of the original instruments expressive of the purposes of the donors, from the term used and from the various circumstances in the case, that Jessup W. Scott and the others uniting with him had in contemplation something of a different character and wider scope than now comprised within the Manual Training School, as we call it. I will not take time to read all the original instrument, the first instrument, drawn in 1872, in which these donors expressed their will — in which they carefully stated what it was that they were trying to found. In its general title it was to be a university of “arts and trades,” but there were certain provisions in it indicative of the intent to found an institution for the education of men in various employments and arts. As I have it before me, I will read a part of it, emphasizing certain phraseology especially pertinent to our inquiry: “The object of this trust is to establish an institution for the promotion of knowledge in the arts and trades and their related sciences by means of lectures and schools, by extensive collections of models and representative works of art; by geological and mineralogical or other cabinets and museums that relate to the mechanic arts, and whatever else will serve to furnish artists and artisans with the best facilities for a high culture in their profession; also to furnish instruction in the use of phonographic characters and to aid their introduction into more general use. Other branches of learning not included in the above specifications may become a part of the institution when endowed so as to be sustained without the use of the trust funds hereinafter provided. AÍ1 the advantages offered by this institution are to be free of cost to all pupils who have not the means to pay for the same, and all others are to pay such tuition and other fees as the trustees may require. The institution shall be open to pupils of both sexes alike.” It would seem that a wide scope in the advancement of learning by instruction in this institution was contemplated, and that its purpose was to afford free instruction to all persons — 618 — of whatever age who were without means to pay for their tuition, is expressed in terms. In the manual training schools conducted by boards of education in the state of Ohio under the law, no adults can, under our statutes, obtain free tuition. In a somewhat elaborate and long communication addressed to the city council .by some of the original incorporators of the University of Arts and Trades, including among them one or more of the original donors, the idea is expressed that such a university would be of inestimable' value to the city of Toledo in the same way in which various universities mentioned in the communication have been of advantage to cities of Europe and the United States where they have been conducted; universities which give instruction to adults, and indeed the word “ adults” is used in more than one place in this communication. It is possible that the scope of the manual training school also may not be bounded by the growth which it has already attained. It may, indeed, while sustained in part by this trust fund, not be bound by the limitations of the statutes as to the pupils who may obtain its benefits, because it is possible that under Gen. Code 7921 attempting to transfer the control -to the board of education, it is not contemplated by the legislature that there shall be any limitation upon the power of the board of education to carry out all the purposes of the original trust; in other words, a very liberal construction of Gen. Code 7921 would empower the board of education to establish such a University of Arts and Trades as was contemplated by the original donors, even to the extent of giving instruction in the arts of painting and sculpture and all other branches of learning, and affording it without cost to indigent pupils of whatever age. It is possible that the legislature intended'that the board of education should be made the trustees of the original benefaction and be empowered to carry out all the purposes of the original trust without any impairment thereof, even to the establishing of a university outside of the bounds of the school district represented by them. But there is nothing in the statute clearly indicating an intention of the legislature that any board of education may carry on such a university. That it was the intention of the original donors that — 619 — a university might some day be established upon the tract of 160 acres of laud adjacent to the city of Toledo, and which seems to have been platted with some such purpose in view, as shown by the record before us, we think is indicated. It may be fairly drawn from the facts disclosed in the' record that the donors were not limiting the establishment of their university to the corporate bounds of the city of Toledo. Indeed, there is no statement in the original grant that the university shall be anywhere within Lucas county, and unless that idea is to be inferred from the name of the university and from the arguments held out to the municipality by the persons who signed the communication to which I have referred, we have no authority for assuming that the university was to be limited in its establishment to the city of Toledo. Now, in consideration of Gen. Code 7921, and without further touching upon the question of the legislative power to change the control of the trust, it may be suggested that unless the board of education is given power by this section to establish such a university of arts and trades as was in the minds of the original donors, the effect of the legislation if carried out, woidd be to prohibit forever the consummation of the purposes of the original donors except insofar as they can be carried out within the limits of our statutes as to common schools. In other words, it never could be made a university as defined by the other section of the statute, Gen. Code 7905. It never could become an assemblage of colleges for the purposes stated in that definition, because that class of universities is expressly exeepted from the- operation of the section which confers the control upon the board of education. They are not to have any control of a university as defined by the act, and if the University of Arts and Trades is one which when it reaches its perfect development as contemplated by the. donors, would fairly come within that definition, then the statute either does not transfer the control of it to the board of education, or defeats the purpose of the trust. No force is to be attached to the fact that in the summer following the passage of this act as amended to its present form the Toledo University began to enlarge its apparent scope — 620 — by taking in a school of dentistry and other institutions, because the trustees could not after the enactment had been effected change the character of fheir university so as to bring it within the terms of the act. But the question may well be considered whether the legislature, in excepting universities, should not be held to consider those which are inchoate, those which have been partly formed and which are already carrying out some of their purposes with the intention of carrying out all, as well as to except those which had become perfected universities within the definition of the law. Otherwise, as L have said, we must construe this section as preventing the perfecting of an organization and establishment and conduct of a university which has already been started for the purpose of giving instructions in many other and higher branches of learning than those ordinarily considered in the Manual Training School. The authorities both of text-writers and judicial adjudication are not uncommon touching questions of this character. I will not lengthen this opinion by reading from them. "We have had many cited, and we have found a number which were not mentioned in the briefs or oral arguments of counsel. I will cite certain authorities without further comment than the mere reference. Cooley, Const. Lim. (6 ed.) pages 289, 290, 291; Yarmouth v. North Yarmouth, 34 Me. 411 [56 Am. Dec. 667]; Gloucester School Fund (Tr.) v. Bradbury, 11 Me. 118 [26 Am. Dec. 515]; Dartmouth College (Tr.) v. Woodward, 17 U. S. (4 Wheat.) 518 [4 L. Ed. 629]; State v. Neff, 52 Ohio St. 375 [40 N. E. Rep. 720; 28 L. R. A. 409]; South Kenton Union Sunday Sch. v. Espy, 9 Circ. Dec. 695 (17 R. 524); Koblitz v. University, 11 Circ. Dec. 515 (21 R. 144); Society, Etc., v. New Haven, 21 U. S. (8 Wheat.) 464 [5 L. Ed. 662]; Allen v. McKeen, 1 Sumner 276 [1 Fed. Cas. 489]; Montpelier Academy v. George, 14 La. 395 [33 Am. Dec. 585]; University of Maryland v. Williams, 9 Gill & J. (Md.) 365 [31 Am. Dec. 72]. I will not take further time in discussion of the conclusion at which we have arrived, that we ought not to depart from the principle which was enunciated by our court in the Waldron case. Some doubt has remained with a part of this court as to the power of the original recipients of the grant, the trustees — 621 — of the University of Arts and Trades, to delegate that trust to the municipality; but the attorneys upon both sides of the present controversy have conceded the legal title to be in the city and the control in the trustees of the Toledo University as agents of the city unless it is taken from them by this legislative enactment, Gen. Code 7921, so that we have not seen fit to consider particularly that phase of the question. There has-been such a recognition in these previous adjudications in our court of the title as having passed to the municipality and as to the validity of the appointment of the trustees of the Toledo University by the mayor, that it is perhaps no longer an open question. Our judgment is that the contentions made by the plaintiff should be sustained and the relief asked in the petition will be granted.