the visitors. They thereby were clothed with both general and special visitatorial authority and duties. These were accepted by the trustees of Phillips Academy and were confirmed by St. 1823, c. 50, whereby the visitors were made a corporation. They thus were incorporated into the "Constitution" of the theological institution. The visitors when created were visitors of the theological institution and not of particular donations. Endowed Schools Act. L. R. 10 A. C. 304, 308. This general principle is recognized in Cary Library v. Bliss, 151 Mass. 364, 377, 25 N. E. 92, 94, 7 L. R. A. 765, where it was held that subsequent donors presumably "knew on what trusts the library was established and was to be managed, and that they made their gifts to be held under the same trusts. This general principle is not cut down in the light of all the other circumstances by the words of section 1 of St. 1823, c. 50, to the effect that the visitors as a corporation are to be the guardians, overseers and protectors of "such donations as have been, or hereafter may be made subject to their inspection, with the assent of the trustees of said academy. The unqualified acceptance by the trustees of unrestricted gifts for the theological seminary imports the same visitatorial powers as obtain with respect to that department of the institution under the express words of the original and associate founders. Of course, the visitors have no power with respect to gifts made to the trustees and accepted by them unqualifiedly with the express provision that they are not to be subject to the visitatorial functions. It follows that the visitors have jurisdiction touching the seminary as an entity and not alone touching definite funds with which it has been endowed with special invocation of visitatorial powers, but omitting those given with express provisions that they are to be free from the powers of the visitors. The meaning of the ample grants of power conferred upon the Andover visitors has been before this court in two cases. Much in small space has there been said pertinent to the issues here to be decided. In Murdock, Appellant, 7 Pick. 303, at page 322, occur these words: It is specified that the visitors are to visit the "Foundation." In that context the word manifestly means the institution itself with all that appertains thereto. The Constitution of the original founders (to which their Additional Statutes were supplementary and not substitutional) definitely refers in article XXXIV to future gifts to the same ends. The name under which the visitors were incorporated was "The Visitors of the Theological Institution in Phillips Academy." The clear implication of this name is that they are visitors of the whole theological institution and not of particular funds held for its benefit. The purport of the Associate and Additional Statutes is that the visitors are established with respect to the theological institution. Their powers are not narrowed to particular funds. The board of visitors became an integral part of that institution. The jurisdiction of the visitors extends not alone to the donations made by the original and associate founders, but to all subsequent general and unrestricted gifts for the benefit of the theological institution. [11, 12] The visitatorial feature to be exercised by a separate board outside the trustees was a constituent element of the theological institution. All gifts to an institution thus established are by implication, unless express provision is made to the contrary, made subject to the visitatorial powbelongs the right er. This is the general principle. If a sub- and power of inspecting the affairs of the corsequent donor makes a new gift to the old poration and superintending all officers who foundation, that is to say, to the institution have the management of them, according to such established by the original foundation with- regulations and restrictions as are prescribed by out erecting either a special trust or a dis- the founder in the statutes which he ordains. * By these different provisions [of the tinct visitor, then the visitor of the old foun- statutes] the trustees are invested with audation will be visitor of the new gift. It is thority, in the first instance, to supervise the considered that the donor intended that his concerns of the institutions * *. A gengift should fall under the general statutes eral appellate power is given to the body deand rules of the institution and be regulated nominated the board of visitors, who have also original authority concurrent with that of the with the rest of its property. Such subtrustees as to most of the subjects committed sequent donors are not founders of the charto their charge." ity. They find it in existence. They merely aid, assist and increase it. They take it as they find it with all its powers and limitations, including the visitatorial. Green v. Rutherforth, 1 Ves. Sen. 462, 472, 473; Rex v. Bishop of Ely, 1 Wm. Blackstone, 70, 87; Ex parte Inge, 2 Rus. & Mylne, 590, 596, 597; Attorney General v. Talbot, 3 Atk. 662, 674, 675; s. c. 1 Ves. Sen. 77, 78; Attorney General v. Flood, Hayes & Jones, Appx. XXI, XXXV; St. John's College v. Toding ton, 1 Burr. 158, 202, 203, 204; In Matter of 串 "To the visitor * In Smyth v. Phillips Academy, 154 Mass. 551, 28 N. E. 683, it was said at pages 554, 557 (28 N. E. 685), that the general duty of the board of visitors "is to visit the corporation [which is under the (148 N.E.) er in all respects it is conducted according to rights of succession, and unchanged in every the principles of its foundation." [13] A manifest result from these decisions and principles is that under the law the authority of the visitors under their general and special powers is very great. While all questions pertaining to the administration of the seminary are to be decided in the first instance by the trustees the visitors have supervision and control of any decision of such magnitude as that here in issue. particular except that a new educational faculty had been superimposed on its former corporate rights. It was not disabled from exercising any prerogative, right, power, or duty. Its powers were augmented, not impaired. The extension of corporate potentiality into a new field to operate therein only to the extent permitted by special gifts directed solely to that end cannot impair any corporate or other right theretofore existing. All the gifts up to the incorporation of the trustees of the seminary by St. 1907, c. 260, were made to the corporation established by St. 1780, c. 15. But all gifts involved in the present controversy were made for the theological institution recognized by St. 1807, C. 22, and not for the general uses of Phillips Academy. There is no sound ground for attack upon the constitutional power of the visitors with respect to the theological seminary. There is here no violation of article 1, § 10, of the Constitution of the United States. The principle established by that constitutional guaranty is recognized and applied in all its amplitude, but it does not cover the facts here presented. wealth v. Farmers & Mechanics Bank, 21 Pick. 542, 556, 32 Am. Dec. 290; Opinion of the Justices, 9 Cush. 604, 610; Cary Library V. Bliss, 151 Mass. 364, 25 N. E. 92, 7 L. R. A. 765;. Opinion of the Justices, 237 Mass. 619, 622, 131 N. E. 29; Dartmouth College V. Woodward, 4 Wheat. 518, 4 L. Ed. 629. Common [14] 4. It has been urged that the powers of visitors as created by the Associate and Additional Statutes and as recognized and established by St. 1823, c. 50, are incompatible with the provisions of the charter of the trustees of Phillips Academy. That charter, St. 1780, c. 15, provided amongst other matters that the persons named as incorporators and their successors should be "the sole visitors, trustees and governors of the said Phillips Academy" The theological institution when founded constituted a new department of the established academy. It is not necessary to inquire or decide whether its corporate powers were broad enough to have enabled the original corporation to organize a department for theological education and to receive special gifts to that end. That course was not pursued. On the contrary the original charter on petition of the trustees was amended by St. 1807, c. 22, whereby the trustees were specifically empowered to receive and hold gifts yielding a limited income "for the purpose of a Theological Institution," the income whereof was always to be "applied to said objects, agreeably to the will of the donors, if consistent with the original design of the founders of the said Academy." This statute conferred the express power upon the trustees to receive gifts subject to such conditions as the donors might impose. That authorization was comprehensive enough to enable the corporation to receive gifts for the theological institution subject to such powers of visitation as the donors might impose and the trustees accept. [15] Gifts were made and accepted by the trustees on the strength of St. 1807, c. 22. All this constituted no impairment of any contractual obligation growing out of the original act of incorporation. The founders of the academy, the trustees as a corporation and intervening benefactors of the academy suffered no impairment of any right, when the commonwealth conferred a new power upon the corporation to receive new gifts to be applied to a new purpose. The former Third. The next matter for consideration gifts, the former powers, and the former ob- is the validity of the determination of the ligations were not altered, enfeebled or af- visitors touching the plan of closer affiliation fected. Those gifts could not be diverted to of the Andover Theological Seminary with different uses. The obligations were not the Harvard Divinity School. This question weakened or strengthened or modified, but must be considered with reference (1) to the remained in full force to be performed by forms of the procedure of the visitors and the original corporation; that corporation their individual and personal competency to was the same in incorporators, the same in act; (2) to their jurisdiction over the subject The precise questions now raised, including the constitutionality of St. 1823, c. 50, incorporating the visitors, and its repugnance to St. 1780, c. 15, whereby the trustees of Phillips Academy were incorporated, and impairment of the grant of powers there made, was raised and settled in Smyth v. Phillips Academy, 154 Mass. 556, 28 N. E. the constitutionality of the act incorporating 683. In concluding the discussion upholding the visitors, it was said at page 556 (28 N. E. 685): "The validity of these statutes [of the associate founders] and of the act incorporating the board of visitors, seems to have been settled by adjudications of this court. Phillips Academy v. King, 12 Mass. 546; Murdock, Appellant, 7 Pick. 303; Murdock v. Phillips Academy, 12 Pick, 244." The ground has been re-examined in the light of the argument now presented. We remain satisfied with the conclusion stated in the Smyth Case. of that plan; and (3) their determination ac-time no quorum was present by reason of a tually made on the merits. [16] 1. Several objections preliminary in nature are urged against the forms of procedure and competency of the visitors. These objections relate to essential steps prerequisite to any action by the visitors touching the consideration of the plan for closer affiliation. storm. The next record is that the adjourned annual meeting and visitation was held on December 30, 1921. According to the records of the visitors that meeting was kept alive by successive adjournments until June 15, 1922, when the hearing was given to the trustees. The several adjournments were made, one subject to the call of the president, and others subject to the call of the secre with respect to adjournments in this form of meetings of public, municipal or ordinary corporate bodies as being a delegation of power vested in the whole body, there was no invalidity in the adjournments here in question because under the rules governing the visitors the president or under stated (a) The meetings, at which that plan was considered, cannot be pronounced invalid. | tary. Whatever objections might obtain One visitation each year is required, but the activities of the visitors are not confined to a single meeting or a single occasion, or to times when called to the seminary by a summons from a source outside their own officers. It is provided by article XIV of the Associate Statutes that the visitors shall meet "once in every year at the aforesaid circumstances the secretary was clothed theological institution * and also with power to call meetings. Moreover the upon emergencies, when called thereto, as meetings were held apparently without obhereinafter directed. This latter jection by the visitors and by consent of all sentence includes special meetings to be of the members of the corporation. Letters called by the president or secretary under were written in March, 1922, by the clerk the terms of article XVI whenever required of the trustees to two of the members of the by any necessity or exigency. It is not con- board of visitors outlining the proposed plan fined to the visits to the foundation "at other of affiliation and another trustee wrote a times [in addition to the regular annual visi- similar letter to the remaining visitor. tation] when regularly called thereto," by These were individual letters and not sent some person, board or organization clothed by authority of the trustees. On May 26, with that authority as set forth in article 1922, the clerk of the trustees acting in acXX. The words "when called thereto" in ar- cordance with a vote of the trustees sent to ticle XIV refer both to special meetings the secretary of the board of visitors, but called as "directed" in article XIV and to the for the information of the board, a letter "other times [of visits to the foundation] transmitting an attested copy of the vote of when regularly called thereto," of article XX the trustees with respect to closer affiliation where specific directions are found. With- with Harvard. That letter and vote called out determining the precise meaning of the the attention of the visitors to matters of words "regularly called thereto," it is suffi- the highest importance touching the future cient to say that a special visitation may be of the seminary. While not in form a reguhad when a meeting of the visitors upon a lar call to make a visitation, it in substance necessary occasion is called to that end in justified a visitation provided the subjectaccordance with article XIV. The visitors matter of the vote was within the jurisdicunder these provisions are not restricted to tion of the visitors. Thereafter notice of a the single annual visitation. The visitors meeting of the visitors to be held on June 15, are themselves to decide whether an emer- 1922, to hear the trustees with regard to the gency exists which demands a visitation. proposed closer affiliation was sent to the The specific powers conferred upon the visi- trustees. At that meeting the trustees aptors are far more comprehensive than gen- peared and objected to the jurisdiction of eral visitatorial powers. Being possessed of the visitors on the grounds that (1) the meetthe general common-law power of visitors ing was not a special visitation because not and in addition the special visitatorial pow- "regularly called"; (2) the annual visitation ers conferred by the Associate and Addition- could not be kept alive by successive adal Statutes they may act on their own initia- journments; (3) the visitors had no jurisdictive as to a matter within their general ju- tion of the subject-matter of the plan for risdiction. The right of visitors to act spon- closer affiliation. The hearing then proceedtaneously appears to be recognized in Attor-ed and the determination or decree was finalney General v. St. Cross Hospital, 17 Beav. 435, 466. ly adopted unanimously. [17] Three individuals compose the cor(b) The circumstances of the meeting of poration established by St. 1823, c. 50, as June 15, 1922, when the hearing was given visitors of the theological institution. It is to the trustee respecting the plan for closer provided by article XIV of the Associate affiliation, were these: Without narrating Statutes that "a majority of the visitors. the details of meetings and adjournments, when regularly convened, shall be a quorum, it is enough to say that the annual visitation of which quorum a major part shall have was fixed for November 30, 1921. At that power to transact the business of their com Russell v. Wellington, 157 Mass. mission." The notice to the trustees of the [ to time. hearing to be held on June 15, 1922, stated 100, 105, 31 N. E. 630; Cheney v Coughlin, that a special visitation would be held for 201 Mass. 204, 212, 87 N. E. 744, and cases that purpose at a specified time and place. there collected; Ashley v. Three Justices of Even if it be asThe records of the visitors seem to show the Superior Court, 228 Mass. 63, 70, 116 N. that that meeting was an adjournment of the E. 961, 8 A. L. R. 1463. In view of the powers sumed that the term of office of the visitor annual visitation. conferred upon the visitors by the Associate came to an end by efflux of time on reachand Additional Statutes, there can be an ad- ing the age of 70 years, the visitors as a corjournment of a visitation from time to time poration continued to function with the two In remaining members. His participation in its such as is shown by the present record. the Matter of the Dean of York, 2 Q. B. 1, actions came to an end before the hearing and before any decision respecting the mat39. See Queen v. Justices ters have involved. as of Suffolk, 18 Q. B. 416, 421. [18] It has not been argued that the notice of the hearing given to the trustees was not [23] (e) These circumstances as to the exauthorized by the visitors, or was not sufficient in form, or did not give adequate time piration of the term of one visitor and the for preparation for the hearing or was not election of his successor after the issuance seasonably served. No one of the individuals of the notice to the trustees and before the a corporation hearing do not affect the validity of their The visitors constitute a corcomposing the visitors makes any complaint as to the regularity of proceedings. the meeting. According to their records, all poration. Changes in the members or offiWhether it was an cers of a corporation do not concern its cormembers were present. adjournment of the annual visitation or a porate entity or continuity. The visitors as special visitation is not of vital consequence. a corporation continued its existence and The visitors were gathered in a meeting and identity regardless of shifting membership. for a purpose of which adequate notice had Phillips Academy v. King, 12 Mass. 546, 554; been given the trustees. Every formality so Commonwealth-Atlantic National Bank, Pefar as concerned the real interests of the In these cirtrustees had been observed. cumstances the trustees cannot rightly object to the meeting as a visitation. [19] (c) The point now raised that the meeting of June 15, 1922, was not held at the seminary is too clear for extended discussion. The trustees raised no objection on Apparently the this ground at the time. meetings were held at a place convenient to all parties. tition of, 249 Mass. 440, 144 N. E. 443. [24] (f) Immediately upon receipt from the trustees of the copy of the plan of closer affiliation at a meeting held on May 31, 1922, the visitors voted to authorize counsel to take steps necessary "to protect the interests of Andover Theological Seminary" to the end that the "proposed closer affiliation between Andover Theological Seminary and Harvard University may be fully presented to the Supreme Judicial Court." This was not a vote expressive of a determination as to the merits of that plan. Doubtless the visitors are required to act in a judicial capacity. They ought to be as nearly impartial as the lot of humanity will permit. Nevertheless the visitors constitute the tribunal established by the Associate and Additional Statutes, and by St. The visitors are bound to 1823, c. 50. No other can be substituted for The proceedit under the law [20-22] (d) It is provided in the Statutes that a member of the board of visitors shall not hold his office after reaching the age of seventy. One of the visitors reached that age on December 29, 1921, but continued to act as a member of the board until after the meeting held on May 31, 1922, when, that fact coming to the attention of the other two members, his successor was elected on June 5, 1922, and qualified on June 8, 1922. act on their own consciences. It is provided by article XIII of the Associ-ings respecting the hearing and determinaate Statutes that when any visitor shall have tion do not appear to have been a mere matcompleted his sixty-ninth year the board ter of form. The visitors cannot be said on shall within the year next ensuing choose some suitable person to succeed him who shall not take his seat before his predecessor shall have completed his seventieth year er resigned. There is nothing to indicate that this provision was a limitation on the power of the visitors or anything more than an expression of strong purpose which ought to be observed. Failure to conform to it is not fatal to the validity of acts performed. While there was not a strict compliance with the letter of art. XIII, those provisions according to general principles of law must be regarded as directory and not mandatory as this record simply to have gone through the amination of the plan for closer affiliation presented in 1922. It is difficult to conceive of a matter more obviously likely to call for the exercise of visitatorial powers than the close union of such a seminary as Andover with such a school as Harvard. The board of visitors having the general and special powers already adverted to are charged to guard the Andover Theological Institution in all future time against all perversion or the smallest avoidance of the true design of its founders. The visitors could hardly do less than examine the plan for closer affiliation of the semi indicate that the vistiors did not hear the arguments of the trustees presented at the hearing in a judicial spirit with a purpose single to perform their duty under the trust reposed in them and without bias due to their previous action. This conclusion is supported in principle by Correia v. Supreme Lodge of Portuguese Fraternity, 218 Mass. 305, 309, 105 N. E. 977; The Queen v. Hertford College, 3 Q. B D. 693, 703; Hayman v Governors of Rugby School, L. R. 18 Eq. 28, 86; In re Fremington School, 11 Jurist, 421, 424. See Swan v. Justices of the Superior Court, 222 Mass. 542, 548. 111 N. E. 386. The cases at bar are distinguishable | nary with Harvard to ascertain whether it on this aspect from Thompson v. Catholic Congregational Society, 7 Pick. 160, and similar authorities. conformed to the Constitution and Associate and Additional Statutes. The powers and duties of the visitors already set forth include within their jurisdiction a matter of such importance to the seminary. [26] The jurisdiction of the visitors over the subject is not affected by the fact that president and fellows of Harvard College were not summoned before them for hearing on the validity of the plan for closer affiliation. That body did not ask to be heard. The visitors had no jurisdiction over Harvard College. The trustees by making a contract with a third person manifestly cannot prevent the visitors from performing their duties. The cases at bar are distinguishable in this respect from Smyth v. Phillips Academy, 154 Mass. 551, 28 N. E. 683. The president and fellows of Harvard College raise no such question. 3. The determination or decree made by the visitors after prefatory recitals was in these words: "(1) That the said plan for closer affiliation between Andover Theological Seminary and Harvard University is inconsistent with the Associate Foundation Statutes. [25] 2. The trustees assail the jurisdiction of the visitors to consider the plan of closer affiliation between Andover Seminary and Harvard Divinity School. They have done nothing to estop themselves from rais- ing that point. This decision does not rest upon the practical interpretation placed up on the powers of the visitors both by them and the trustees during the time since 1808, important though that might be. Burrage v. County of Bristol, 210 Mass 299, 301, 96 N. E. 719; United States Trust Co. v. Commonwealth, 245 Mass. 75, 80, 139 N. E. 794; Southborough v. Boston & Worcester Street Railway, 250 Mass. 234, 145 N. E. 422. The plan for closer affiliation in the main was a joining of Andover Theological Seminary with Harvard Divinity School. The former was founded and had been maintained solely for the theological education of ministers of orthodox trinitarian Congregationalists. The strict provisions as to the theological beliefs of her professors, and the heavy duty laid upon the visitors to inquire into these matters show how vital was regarded adherence of the institution as an entity to that denomination. The Andover Creed itself was essentially a statement orthodox, trinitarian, evangelical in the strict meaning of those words at that time. It was framed by and for Calvinists of that day. It embodied a part of the Westminster Assembly's Shorter Catechism. It was the creedal basis of an institution founded and promoted to combat liberalism in religion. Harvard Divinity School, for many years [27, 28] It is not our province to re-examine distinctively Unitarian, had become wholly this decision so far as it rests upon findings undenominational. On its faculty were Uni- of fact. The ordinary exercise of visitatorial tarians, and others not adherents of any trin- powers if founded upon any evidence, is not itarian orthodox church. The Plan of Closer reviewed by courts. The duty of the courts Affiliation differs materially from the 1908 touching the determination by visitors actPlan of Affiliation in many respects, although ing within their general jurisdiction is to inalike in that under both Andover and Har- terpose to prevent action contrary to law in vard students meet in the same courses and the administration of the trust. The weight Andover students take courses given by Har- and effect to be given in general to the detervard instructors and vice versa. Approval of mination of the visitors of a charity are statthe 1908 plan (even if there were such ap-ed in Nelson v. Cushing, 2 Cush. 519, at page proval by the visitors) would not prevent ex- 530, to be: "(2) That by the adoption of said plan for closer affiliation, between Andover Theological Seminary and Harvard University, the said Andover Theological Seminary will be improperly managed and will not then be conducted in accordance with the principles of its foundation. The board of visitors of Andover Theological Seminary therefore declare void the plan for Seminary and Harvard University as submitted closer affiliation between Andover Theological to them by the trustees of Andover Theological Seminary." |