90 Ky. 322 | Ky. Ct. App. | 1890
delivered the opinion of the court.
This action was brought by G. H. Bryan and seven associates for themselves and other share-holders in the Board of Education of the Kentucky Annual Conference of the Methodist Episcopal Church South, and in the Millersburg Male and Female Collegiate Institute, against said board for an injunction, that was-granted temporarily, restraining defendant from selling or disposing of a certain lot of land and buildings-, of the Kentucky Wesleyan College, or removing its-capital or- property from Millersburg to Winchester, or using any of such capital or fund for any other purpose or at any other place than proper conduct, and management of the College at Millersburg.
It appears that in January, 1858, a meeting of citizens of Millersburg was held to devise means to purchase land and such buildings for an institution of learning and boarding-house, to cost about fifteen thousand dollars, and to be under supervision of’
To carry out the enterprise thus started, “An act to incorporate the Millersburg Male and Female Collegiate Institute” was passed February 16, 1858, the preamble thereof being as follows: “Whereas, divers citizens in and near the town of Millersburg, in the county of Bourbon, have subscribed a considerable sum of money for the purpose of erecting in or near said town a seminary of learning, to be under control and supervision of the Kentucky Annual Conference of the Methodist Episcopal Church Sorith.”
By provision of the act William Nunn and others were constituted a body-corporate, byname of “Trustees of the Millersburg Male and Female Collegiate Institute,” with power to receive additional subscriptions and donations in aid of the institute, and to •establish rules for its government; but the Quarterly
September, 1858, the trustees presented to the Annual Conference, in session at Millersburg, a written memorial, stating the charter had been secured, subscriptions of stock amounting to seven thousand five hundred dollars obtained, a suitable lot of land purchased, and steps taken to erect necessary buildings, and requesting conference to accept the subscriptions, land, &c., upon the terms set forth in the charter, which was done. And conference at the same time resolved to raise an additional sum of ten thousand dollars, to be subscribed as its stock in the institute, and to constitute its educational fund. But it was subsequently, though during the same session of conference,' agreed between it and the original stockholders for the charter to be so amended as to make it a male
The plan of the Board of Education having, October 1, 1858, been submitted to the original stockholders
By provisions of the act certain persons were constituted a corporate body, by name of “The Board of Education of the Kentucky Conference of the Methodist Episcopal Church South,” and invested with authority to carry out the purposes set out in the preamble, subject, however, to control of the Annual Conference.
Section 11 is as follows: “That an act to incorporate the Millersburg Male and Female Collegiate Institute,
September 17, 1861, the Board of Education procured the passage of an act amending the one of January 12, 1860, section 1 thereof being as follows: “That it shall be lawful for the trustees of the Millersburg Male and Female Collegiate Institute who were in office -January 12, 1860, when the act incorporating said institute was repealed, or their successors, to convey by deed to-the Board of Education of the Kentucky Annual Conference of the Methodist Episcopal Church South, the property held by said trustees in or near the town of Millersburg, for the purpose of carrying into effect any contract made by said trustees as stockholders of said institute with said board, and their conveyance recorded in the proper office shall be effectual to pass title of said property to said board and their successors.”
By section 2 it is provided that “nothing contained in the act incorporating said board, approved January 12, 1860, shall be construed so as to prevent or hinder said board or their successors from removing the seat of their college from Millersburg to any other place in the bounds of the Kentucky Annual Conference.”
The action of the Board of Education was duly reported to the Annual Conference, held in Paris September 25, 1861, and the act mentioned was by it accepted; and in November, 1861, the trustees of Millersburg Male and Female Collegiate Institute, by deed recorded in the Bourbon County Court Clerk’s office, conveyed the lot in question to the Board of Education.
It seems to us the original stockholders of the Millersburg Male and Female Collegiate Institute are not in a position to question either the efficacy or validity, except as to section 11, of the act of January, 1860; for it is not only in strict pursuance of and entirely consistent with, but was indispensable to carry out the plan of the Board of Education, which they accepted without, so far as this record shows, any dissent, and have had the benefit and enjoyment of ever since.
Section 11 is in conflict with section 37, article 2 of the State Constitution, and, therefore, void, because repeal of the charter of February 16, 1858, which was sought to be accomplished by it, does not relate to nor is embraced by the subject expressed in the title of the act of January, 1860. But repeal of that charter was-
It thus results that the decisive question in this case is, whether section 2 of the last named act is valid.
Counsel for appellant contends it is unconstitutional because, being declaratory of the meaning of the act •of 1860, already passed, and not an enactment of what should thereafter 'be law in that regard, it is in its nature judicial and not legislative. “But in any case the substance -of the legislative action should be regarded rather than the form; and if it appear to be the intention to ■establish by declaratory statute a rule of conduct for the future, the courts should accept and act upon it without too nicely inquiring whether the mode by which the new rule is established is or is not the best.” '(Cooley’s Con. Lim., 115.) And as, therefore, the power of removal had not been expressly granted by the act of I860, incorporating the Board •of Education, and could not have been exercised without, section 2 of the act of 1861 may fairly and should be regarded as intended to then give it.
The Male and Female Collegiate Institute projected in January, 1858, was evidently intended to be local in character, established and sustained principally, if not wholly, by citizens of Millersburg and vicinity. And although, by the act of February, 1858, the Quarterly Conference of Millersburg station was empowered to appoint trustees,' and the control and supervision of the institute was given to the Annual Conference, still, at the time the memorial heretofore mentioned was presented to that body no stock had been subscribed except by citizens of Millersburg and vicinity, nor did they, in virtue of contract or otherwise, have a right to a reasonable expectation of assistance from others. It was, therefore, then necessary in order to protect their rights, and in the power of the original stockholders to provide, as was done in section 4 of that act, that in case the corporation thereby created ceased to exist or was dissolved, or its charter was surrendered or repealed, all its prop-
Neither the contract between the original stockholders and Board of Education, nor act of 1860, contains an express condition that the title of the property, which became ‘part of the endowment fund, was to be held upon condition the college be forever conducted and maintained at Millersburg, and nowhere else within the territorial limits of the Annual Conference; and such condition exists, if at all, by implication only. But the law does not presume a party entitled to a right or benefit of reservation claimed under contract' in the absence of an express stipulation, except such as reason and justice dictates.
Not only those residing- elsewhere, but as well resi
There is mention made in the act of 1860, and also in the certificates of scholarship, of the college being-established at Millersburg, but the language used does not import an agreement it shall permanently remain there; on the contrary, we think it should, as can fairly, be interpreted merely descriptive of the institution.
In our opinion, therefore, there exists no contract or undertaking, express or implied, for continuance óf the institution at Millersburg any longer than its useful and successful operation requires. And as the power of removal was conferred by the act of 1861, which all
And in the absence of fraud the Board of Education, controlled by the Annual Conference, must be presumed to have acted in. good faith and under belief success of the college required the removal from Millersburg to Winchester. Consequently we need not inquire whether they are or not pursuing the wisest policy, especially as the evidence shows the college has so far been a failure at its present location.
Judgment affirmed.