« ForrigeFortsett »
that report as follows: "No state ipstitution | legislatures have hitherto convinced themselves in America has prospered as well as independ that it was their duty to legislate universities ant colleges, with equal, and often with less, to death is this: It is a state institution, and
Why they have not may be ascribed, we are the direct representatives of the people, in part, to the following causes: They have and therefore it is expected of us; it is our not been guided by that oneness of purpose and right. The people have an interest in this singleness of aim (essential to their prosperity, thing, and we must attend to it.' As if, bethat others bave whose trustees are a perman- cause a university belongs to the people, that ent body,-men chosen for their supposed fit were reason why it should be dosed to death ness for ibat very office, and who having be for fear it would be sick, if left to be pursed, come acquainted with tbeir duties, can and are like other institutions, by its immediate guarddisposed to pursue a steady course, wbich in iads. Tbus has state afier state, in this Amer. spires confidence and insures success, to the ican Union, endowed universities, and then, by extent of tbeir limited means. State institu- repeated contradictory and over legislation, tions, on the contrary, have fallen into the torp them to pieces with the same facility as hands of the several legislatures, fluctuating they do the statute book, and for the same bodies of men, chosen with refereuce to their reason because they have the rigbi.” All these supposed qualifications for other duties tban reports and discussions were undoubtedly cherishing literary institutions. When legis known to the members of the convention, and latures bave legislated directly for colleges, their action should be construed in the light of their measures bave been as fluctuating as ibe such knowledge. I am unable to find a single changing materials of which the legislatures utterance by any member of that convention were composed. When they bave acted from which it could be inferred that the memthrough a board of trustees, under the show of bers believed or supposed that ibey were leav. giving a representation to all, they have ap- ing the control of ibat institution to the legispointed men of such dissimilar and discordant laiure. The result bas proved their wisdom, character and views that they never could act for the university, which was before practically in concert; so that whilst supposed to act for a failure, under the guidance of tbis constituand represent everybody, ibey, in fact, bave tional body, known as the Board of Regents,” not and could pot act for any body. Again, bas grown to be one of the most successful, ibe legislatures, wishing to retain all the power of most complete, and the best koowo institutions the state in their own bands, as if they alone of learning in the world. That such was the were competent or disposed to act for the gen- understanding of the meaning of the Constitueral good, bave not been willing to appointtion of 1850 is shown by the report of the sutrustees for a sufficient length of time for them perintendent of public instruction, published in to become acquainted with their duties, to 1852, in which he refers 10 “the additional and become interested in the cause wbich they general interest created by a change of the were appointed to watch over, and feel the deep organic law in 1850, in placing the university responsibility of the trust committed to them. under the control of regents elected by the A new board of trustees, like a legislature of people." Report, Pub Inst, 1852, p. 26. new members, pot knowing well what to do, The provisions of the Constitution of 1850 in generally begin by undoing and disorganizing regard to the university are these (art. 13): ali that bas been done before. At first they “Sec. 2. The proceeds from the sales of all dig up the seed a few times, to see that it is lands that bave been or hereafter may be going to come up; and, after it appears above granted by the United States to this state, for the surface, they must pull it up, to see that educational purposes, and the proceeds of all the roots are sound; and they pull it up lands or other property given by individuals, again, to see if there is sufficient root to sup. or appropriated by the state for like purposes, port so vigorous branches; then lop off the shall be and remain a perpetual fund, the inbranches, for fear they will exhaust the root, | terest and income of which, together with the and then pull it upon again, to see why it looks rents of all such lands as may remain unsold, so sickly and pining, and finally to see if they shall be inviolably appropriated and annually can discover what made it die. And, as these applied to the specific objects of the original several operations are performed by successive gift, grant or appropriation.” bands, no one can be charged wiib ihe guilt of “Sec. 6. Tbere shall be elected in the year distroying the valuable tree. Whilst state in- | 1863, at the time of the election of a justice of stitutions have been, tbrough the jealousy of tbe supreme court, eight regents of the upi. state legislatures, thus sacrificed to the impaversity, two of whom shall hold their office for tience and petulance of a heterogenous and two years, two for four years, two for six years changeable board of trustees, whose term of and two for eight years. They shall enter office is so short that they have not uime to dis upon the duties of their office on the first of cover their mistakes, retrace their steps, and January next succeeding their election. At correct their errors, it is not surprising that every regular election of a justice of the sustate universities bave hitherto, almost without preme court thereafter, tbere shall be elected exception, failed to accomplish, in proportion iwo regents, wbose term of office shall be eight to their means, the amount of good that was years. When a vacancy shall occur in the office expected from them, much less than colleges of regeut, it sball be filled by app iniment of in their neighborhood, patronized by the re the governor. The regents thus elected shall ligious public, watched over by a board of constitute the board of regents of the Universtrustees of similar qualifications for duty, and ity of Michigan. holding the office permanently, that they may "Sec. 7. The regents of the university, and profit by experience. The argument by which their successors in office, shall continue to constitute the body corporate, known by the name that this court held in Weinberg v. Regents of and title of the 'Regents of the University of University, 97 Mich. 246, that they were a conMichigan.'
stitutional body, upon whom was conferred this “Sec. 8. The regents of the university shall, exclusive control; and in tbe face of this plain at their first annual meeting, or so soon there constitutional provision,—this court is now after as may be, elect a president of the uni. asked to hold that the regents are mere minisversity, wbo sball be ex officio a member of terial officers, eodowed with the sole power to their board, with the privilege of speaking but register the will of the legislature, and to supot of voting. Ble sball preside at the meet- pervise such branches and departments as any ings of the regents, and be the principal ex legislature may see fit to provide for. By the ecutive officer of the university. The board power claimed, the legislature may completely of regents shall have the general supervision of dismember the university, and remove every the university, and the direction and control of , vestage of it from the city of Ann Arbor. It all expenditures from the university interest is po argument 10 say that there is no danger fund.
of such a result. The question is one of The board of regents elected under the new power, and who shall say that such a result Constitution immediately took control of the may not follow? The legislature did once enact university, inierpreted the Constitution in ac- that there should be a branch of tbe univercordance with its plain provisions, denied the sity in every judicial circuit. If the regents power of the legislature to interfere with its comply with the present act, the next legisla. management or control, and for forty-six ture may repeal it, and restore tbat departyears have declined obedience to any and every ment to ibe university at Ann Arbor, or place act of the legislature wbich they, upon mature it elsewhere. Some legislatures have attached reflection and consideration, have deemed conditions, and they have the undoubted right against the best interests of the institution. to do so, to appropriations for the support of This court has sustained them in that position, the university, and a subsequent legislature and bas on every occasion when asked denied bas removed the conditions. Some legislatures its writ to interfere with their action. In Jan. have atiached to appropriations the condition uary, 1856, in the case of People, Drake, v. for the establishment of a homeopatbic proRegents of University, 4 Mich. 98, ibis court, fessorsbip in the old medical department. in denying the writ of mandamus to compel Other legislatures bave refused to aitach any the regents to establish a professorship au such condition. What permanency would there thorized by the legislature, said: “They (the be in an institution thus subject to the caprice regents) aver that they have acted in good faith, and will of every legislature? Under this bul at the same time under the influence of power, the legislature could remove the law much uncertainty as to the constitutionality of deparıment from the university at Ann Arbor the law, and we are compelled to recognize in to Detroit, aod provide that the law library, to this question what might well suggest doubts which one citizen of Michigan has donated of the bioding force of the law, and occasion $20,000, could also be removed. It might some hesitation in their action.”. Obviously, it scatter the great library (to the collection of was not the intention of the framers of the wbich private citizens have contributed nearly Constitution to take away from the people the or quite one half), and also its great museums, government of this institution. On the con laboratories, and mechanical appliances. Other trary, they designed to, and did, provide for results will readily suggest themselves. It apits management and control by a body of eight pears to us impossible that such a power was men elected by the people at large. They contemplated. Furtherinore, it renders nugarecognized the necessity that it should be in tory the express provision of the Constitution cbarge of men elected for long terms, and that the regents shall bave the direction and whose sole official duty it should be to look control of all expenditures from the university after its interests, and who should have the op. interest fund.” It is sigoiticant tbat, at the portunity to investigate its needs, and carefully time of the adoption of the Constitution, this deliberaie and determine wbat things would fund constituted the sole support of the unibest promote its usefulness for the benefit of versity, aside from fees which might be rethe people. Some of the members of the con- ceived from students. The state bad made no vention of 1850 referred in the debates to two appropriations for its support, and there is colleges (one in Virginia and the other in Mass- noibing to indicate that any such appropriaachusetts) wbich had been failures under the tions were contemplated. It is unnecessary to management by the state. It is obvious to argue that the above provision means what it every intelligent and reflecting mind that such says, and that it takes away from the legislaan institution would be safer and more certain 'ture all control over the income from that of permanent success in the control of such a fund. The power tberein conferred would be body than in that of the legislature, composed without force or effect if the legislature could of 132 members, elected every two years, many control these expenditures by dictating what of whom would, of necessity, kdow but little of departments of learning the regents sball esits veeds, and would have little or no time to tablish, and in wbat places they shall be intelligently investigate and determine the located. Neither does it need any argument policy essential for the success of a great uni- to show that the power contended for would versity.
take away from ihe regents the control and Now, in the face of the facts that the regents direction of the expenditures from the fund. bave for forty-six years exercised such con. The power to control these expenditures cantrol, and open] asserted its exclusive right to not be exercised directly or indirectly by the do so; that the courts have refused to compel legislature. It is vested in the board of regents them to comply with the acts of the legislature; in absolute and unqualified terms. This act, in express terms, prohibits the regents from ration shall have such powers and immunities using any of this fuod to support a hogico- as shall be prescribed by law. The same is pathic department at the university at Ann true of other officers, aside from the regents, Arbor, since it probibits them from maintaining provided for in the Constitution. Justices of such a department there. This power cannot the peace (art. 6, § 18), the sheriff, the county be sustained without overruling the case of clerk, the county treasurer, the register of Weinberg v. Regents of University. The basis deeds, and prosecuting attorney (art. 10, $ 3), of the majority opinion in that case is that the and township officers (art. 11, S 1), can exerboard of regenis is a constitutional body. cise such powers as shall be prescribed by law. charged by ibe Constitution with the entire (3) Let us apply another test. It is a rule of control of that institution. The result could construction that where a general power over could not have been reached upon any other one subject is conferred upon one body in one basis. It was held not to be a state institution clause of an instrument, without any restrictunder tbe control and maagement of the legis- ing or qualifying language, and the like power lature, as were the other corporations enume over another subject is conferred upon another Inted in the statute then under discussion. We body in another clause of the same instrument, there said: “Under the Constitution, the state with restricting or qualifying language, the cannot control the action of the regents. It restrictions or qualifications of the second cannot add to or take away from its property clause cannot be read into the first clause. On witbout the consent of tbe regents.' We the contrary, they must be excluded. By might with propriety rest our decision upon article 13, § 1, the superintendent of public in. that case, and should be disposed to do so struction is clothed with "the general superwere it pot for the urgent contention of the vision of public instruction"; but it is added, counsel on the part of the relator that that case "His duties shall be prescribed by law.” By does not apply. We are therefore constrained article 13, § 9, the board of educacion is given to state some further reasons to show that the the general supervision of the state normal legislature bas do control over the university scbool;” but it is added, “Their duties sball be or the board of regents.
prescribed by law.” Thus, in every case ex(1) The board of regen's and the legislature cept that of the regents the Constitution carederive their power from the same supreme fully and expressly reposes in the legislature authority, namely the Constitution. In so far the power to legislate and to control and define as the powers of each are defined by that instru- the duties of those corporations and officers. ment, limitations are imposed, and a direct can it be held that the framers of the Copsti. power conferred upon one necessarily excludes tution, and tbe people, in adopting it, bad no its existence in the other, in the absence of purpose in conferring this power, viz., the language showing the contrary intent. Neither general supervision,” upon the regents in the the university nor the board of regents is men- one instance, and in restricting it in the otbers? tioned in article 4, which defines the powers and No other conclusion, in my judgment, is posduties of the legislature; por in the article re. sible than tbat the intention was to place this lating to the university and the board of regents institution in the direct and exclusive control is there any language which can be construed of the people themselves, through a constituinto conferring upon or reserving any control tional body elected by them. As already over that institution in the legislature. They shown, tbe maintenance of this power in tbe are separate and distinct constitutional bodies, legislature would give to it the sole control with the powers of the regents defined. By no and general supervision of the institution, and rule of construction can it be beld that either make the regents merely ministerial officers, cap encroach upon or exercise the powers con- with no other power than to carry into effect ferred upon the otber.
the general supervision wbich the legislature (2) The board of regents is the only corpo- may see fit to exercise, or, in orber words, to ration provided for in the Constitution whose register its will. We do not think the Constipowers are defined therein. In every other tution can bear that construction. corporation provided for in the Constitution it The writ is denied. is expressly provided that its powers shall be such as the legislatnre shall give. In the case Long, Ch. J., and Montgomery and of townships (art. 11, $ 2), and in counties (art. Hooker, JJ., concurred with Grant, J. 10, § 1), and boards of supervisors (art. 10, Moore, J., concurred in the result. $ 11), it is expressly provided that each corpo. 34 L. R. A.
NEW YORK COURT OF APPEALS.
Johann August KUJEK, Respt., I low, Fr. 553, note 6; Robertson v. Cole, 12
Tex. 356; Baker v. Baker. 13 Cal. 93; Scolt v. Manassah L. GOLDMAN, Impleaded, etc., Shufeldt, 5 Paige, 43; Montgomery v. MontAppt.
gomery, 3 Barb. Ch. 132.
The plain uff did not rely on the alleged (150 N. Y. 176.)
misrepresentations of the appellant, and as a
reasonable map be bad no right to rely. 1. Aman who induces another to marry
A representation of chastity is to be taken a girl by false representations that she is virtuous when in fact she has been seduced by bim and is taken by the person to whom it is made self and bas become pregnant is liable for dam
as an expression of opinion. ages in an action by the husband for fraud.
No cause of action was proved, and the 2. Exemplary damages are recoverable motion to dismiss should have been granted. for fraud in inducing a man to marry a woman
Moral culpability is not always legal culpawho is pregnant by another.
bility, any more than legal culpability is neces3. A direct precedent for the action is not sarily moral culpability. necessary to give a right of action for a wrong.
Cooley, Torts, chap. 1, pp. 3, 4. 4. Loss of the comfort founded upon
The woman's alleged premarital incontiaffection and respect derived from conju. nence with the appellant, and the concealment gal society is sufficient, irrespective of any pecu- of the fact from ibe plaintiff, were certainly a niary damages, to sustain an action by a hus- moral wrong upon the husband, but it would band against one who has fraudulently induced pot, even if i he woman berself bad represented bim to marry a woman who is pregnant by berself as chaste, been ground even for a another.
divorce or an annulment of the marriage, or (October 6, 1896.)
of any contract made in anticipation or conA PRE Ale poradeffedant from a ciud gorect of sideration
Evans v. Carrington, 2 De G. F. & J. 481; mon Pleas for the City of New York in favor Reynolds v. Reynolds, supra. of plaintiff in an action brought to recover
Her concealment of premarital pregnancy is damages for the alleged seduction of plaintiff's a fraud wbich will avoid the marriage. wife. Affirmed.
Montgomery v. Montgomery, and Scott v. Statement by Vann, J. :
Shufeldt, supra; Crehore v. Crehore, 97 Mass. Prior to January 17, 1891, the defendant and Baker v. Baker, supra.
330, 93 Am. Dec. 98; Reynolds v. Reynolds, Katie Kujek, then wamed Katie Moritz, was
Mere concealment by the appellant of such an unmarried woman employed as a domestic facts affecting Katie Kujek’s chastity or pregin the family of the defendant Goldman, by nancy as were within his knowledge could not whom she had become pregnant. Upon dis- render him legally liable. He was under no covering the fact, the defendants, as it is al.
duty to disclose. leged in the complaint, conspired to conccal
There was no proof of damage. their disgrace and to induce the plaintiff to
Where a woman is inveigled into a void marry the said Katie, and to that end repre; marriage and then abandoned by a wealthy sented to him that she was a virtuous and man, her damage plainly appears in the loss respectable woman, and he, believing the of her services, her defilement under the mocksame, did marry her on the day last named. ery of empty legal forms, her loss of reputaThe plaintiff, as it was further alleged, tion and support. would not have contracted said marriage if he bad known the facts. Subsequently, and 75 N. Y. 244, 31 Am. Rep. 463.
Withee v. Brooks, 65 Me. 14; Price v. Price, on July 29, 1891, owing to such pregnancy, But what damage does the evidence show to she gave birth to a child of which said Gold
the plaintiff. man was the father. The answer of Goldman was, in substance, verdict for the plaintiff.
The testimony is insufficient to sustain a a general denial. No answer was served by the other defendant, and no judgment was in wedlock is the child of the father tbough
The presumptiou of law is that a cbild born taken against her. The evidence tended to sustain the allega facts show abundant opportunity to the father
begotten prior to the marriage, and where the tions of the complaint.
prior to the marriage this presumption is a Mr. Wheeler H. Peckham, with Mr. very strong one. Max Altmayer, for appellant:
Montgomery v. Montgomery, and Baker v. Assuming that the appellant perpetrated or Baker, supra. conspired to perpetrate a legal fraud upon the The plaintiff bad but one remedy, if any, plaintiff, the fraud was condoned and ratified the annulment of the marriage. by the conduct of the plaintiff subsequent to Montgomery v. Montgomery, supra; Cooley, his discovery of the facts.
Torts, 2d ed. 238, 279; Freethy v. Freethy, Muller v. Muller, 21 N. Y. Week. Dig. 42 Barb. 64): Longendyke v. Longendyke, 44 287; Reynolds v. Reynolds, 3 Allen,605; Bige- Barb. 366; Wellington v. Small, 3 Cush. 145, NOTE.-The above case is one of first impression. Gray, 124; Bowen v. Matheson, 14 Allen, 499.
50 Am. Dec. 719; Parker v. Huntington, 2 It is worthy of notice that the opinion plainly recognizes that there is no precedent for the
The highest considerations of morality and action, and holds that none is necessary to give a sound public policy forbid the upholding of rigbt of action for a wrong.
Mr. August P. Wagener, for respond | facts in every special action on the case.” ent:
Winsmore v. Greenback, Willes, Rep. 577, The law of marriage as administered by 580. As was recently said by this court in courts, so far as property interests are con- an action then without precedent: “If the cerned, is founded upon business principles, most that can be said is that the case is novel in which the utmost good faith is required and is not brought plainly within the limits from all parties, and the least fraud in regard of some adjudged case, we think such fact thereto is tbe subject of judicial cognizance. not enough to call for a reversal of this judg
Piper v. Hoar, 107 N. Y. 73; Necille v. ment" Piper v. Hoard, 107 N. Y. 73, 76. Wilkinson, 1 Bro. Ch. 543; Roberts v. Roberts, The question, therefore is not whether 3 P.Wms. 66.
there is any precedent for the action, but The persons who by acts of speech repre. whether the defendant inflicted such a wrong sept property as belonging to the proposed upon the plaintiff as resulted in lawful dam. busband when the possession thereof forms ages. The defendant, by deceit induced the an inducement to the marriage shall be bound plaintiff to enter into a marriage contract to make good the thing in the manner repre- whereby he assumed certain obligations and septed.
became entitled to certain rights. Among Montefiori v. Montefiori, 1 W. Bl. 363. the obligations assumed was the duty of sup.
porting his wife in sickness and in health, Vann, J., delivered the opinion of the and be discharged this obligation by expend.
ing money to fit up rooms for housekeeping, The verdict of the jury has established as in keeping house with his wife and caring the facts of this case, beyond our power to for her during continement, when she bore review, that the plaintiff married Katie a child, not to him, but to the defendant. Moritz in the belief that she was a virtuous Among the rights acquired was the right to girl, induced by the representations of the his wife's services, companionship, and sodefendant to that effect, when, in fact, she ciety. By the fraudulent conduct of the dewas at the time pregnant by the defendant fendant he was not only compelled to expend himself. The case was submitted to the jury money to support a woman whom he would upon the theory that if Goldman, knowing not otherwise have married, but was also that Katie was unchaste, by false representa deprived of her services while she was in tions that she was virtuous induced the plain. childbed. He thus sustained actual damtiff to marry her, he was entitled to recover ages to some extent, and as the wrong in. damages, and the jury found a verdict in volved not only malice but moral turpitude his favor for $2,000. While no precedent also, in accordance with the analogies of the is cited for such an action, it does not fol. | Jaw upon the subject, the jury had the right low that there is no remedy for the wrong, to make the damages exemplary. By thus because every form of action when brought applying well settled principles upon which for the first time must have been without a somewhat similar actions are founded, this precedent to support it. Courts sometimes action can be sustained, because there was a of necessity abandon their search for prece. wrongful act in the fraud, that was followed dents and yet sustain a recovery upon legal by lawful damages in the loss of money and principles clearly applicable to the new state services. The fact that the corruption of of facts, although there was no direct prece. the plaintiff's wife was before he married her dent for it, because there had never been an does not affect the right of action, as the occasion to make one. In remote times, when wrong done to him was not by her defile. actions were so carefully classified that a ment, but by the representation of the de. mistake in name was generally fatal to the fendant that she was pure when he knew that case, a form of remedy was devised by the she was impure, in order to bring about the courts to cover new wrongs as they might marriage. It is difficult to see why a fraud, occur so as to prevent a failure of justice. which, if practiced with reference to a conThis was called an “action on the case, tract relating to property merely, would supwhich was employed where the right to sue port an action, should not be given the same resulted from the peculiar circumstances of effect when it involves a contract affecting the case and for which the other forms of ac- not only property rights, but also the most tion gave no remedy (26 Am. & Eng. Enc. sacred relation of life. Fraudulent represen. Law, p. 694). For instance, the action for tations with reference to the amount of propenticing away a man's wife, now well es- erty belonging to either party to a proposed tablished, was at first earnestly resisted upon marriage, made by a third person for the the ground that no such action had ever been purpose of bringing about the marriage, are brought. In an early case the court answered held to constitute an actionable wrong and this position by saying: “The first general the usual remedy is to require the person objection is, that there is no precedent of guilty of the fraud to make his representaany such action as this, and that therefore tions good. Piper v. Hoard, supra; Monte. it will not lie; and the objection is founded fiori v. Montefiori, 1 W. Bl. 363; Atherly, on Litt. $ 108, and Co. Litt. 81 b, and sev. Marriage Settlements, 484. In such cases eral other books. But this general rule is the injury is more tangible and the measure not applicable to the present case; it would of damages more readily applied than in the be if there had been no special action on the case before us, but both rest upon the prin. case before. A special action on the case ciple that he who by falsehoorl and fraud was introduced for this reason, that the law induces a man to marry woman, is guilty will never suffer an injury and a damage of a wrong that may be remedied by an acwithout a remedy, but there must be new tion, the amount of damages to be recovered