*1 CAMMACK, D. et al v. George CHALMERS, et B. al Hugh Supreme Court of Arkansas delivered December Opinion *2 West, Core, and Canfield, for Daily, appel- Coffman lants. ¿r Clark, for Friday, Eldredge appellee. 1957, Hollingsworth, A. In Kate G. P. Justice. deceased,
Cammack, now land conveyed acres of forty the City within the of Little Rock to Board of Trustees A contract delivered University separate Arkansas. the deed other simultaneously stipulated among with the the into matters that Trustees would develop property the the sole University’s Campus.” Appellants, “Cammack Cammack, that devisees and heirs at law of Mrs. contend resulted in a charitable trust and that Mrs. Cammack’s gift unreasonably delayed fulfilling the Trustees have so it impossible terms of the trust that has now become Therefore, purpose. out impracticable contend, acres be divested from appellants forty to them. University given title ordering the Chancery Court From decree for the Trustees in the Board of remain Arkansas, certain performance subject University until given January the Trustees obligations trust intentions, faith their good to demonstrate their cross-appeal, appealed. appel- have dismissed the court should the trial state that Const, is The appeal art. under 20. lants’ claim § it involves to Rule (l)(f) before us pursuant (4) Rule Also directed to state officials. injunction because an issue of interest significant public applicable involved.
We reach a limited decision today does not allow the University of Arkansas Trustees to their ignore commit- ments to donors. The appellees, Arkansas University Trustees, we this hold suit cannot be main- request Const, declares, tained under Ark. art. "The 20. § . State. .shall never be made defendant in her any of courts.” We view our cases as actions that allowing are illegal, unconstitutional or are ultra vires to be enjoined. legislature the Board of Trustees of the designates as the entity capable of corporate being sued. Stat. Ann. 1980) 80-2804 (Repl. (Repl. 1980). We § *3 that officers of recognized state be agencies may enjoined vire,s, from acts which are ultra in bad faith or arbitrary. Toan, Falbo, 337, Comm’r. v. Ark. 595 S.W.2d (1980); Eubank, Arkansas State Game and Fish Comm’n 930, Ark. (1974); Harkey Matthews, 422 S.W.2d chancellor’s finding that he had jurisdiction to enjoin action of the of University Arkansas Trustees under the facts
of this case is consistent with views we have previously expressed.
Appellants maintain that are entitled to they a judg- ment by default. The facts are as follows: filed Appellants 7, 1979, on complaint August filed a appellees timely special and motion to appearance dismiss. The trial court overruled the motion on August 1980 and requested precedents from both parties for a After order. proposed receiving copies from both precedents parties, 17, 1980, chancellor entered his on order November over- ruling motion appellees’ to dismiss and giving appellees twenty-five from days notice of the order to Due answer. to office, circumstances in the clerk’s did not appellees 4, 1981, receive a copy the order. On counsel for February notified appellants counsel for the that the order appellees had been entered and volunteered to send a to him. copy Counsel for never a appellees received order copy did not an file answer twenty-five within notice days by appellants’ counsel that entered. the order had been A on April filed 1981. appellees was
responsive pleading
motion of
for default
appellant
denied the
The chancellor
Club,
Burns v. Shamrock
held
We
judgment.
that:
(1980),
While work, the charitable the architectural to perform for of the was not to employment trust purpose provide Mr. Stone’s services Mrs. realized Mr. Stone. Cammack of Mr. availability Stone not available might of the trust. not essential to the fulfillment was they will not be reversed unless The chancellor’s findings 488, 669 Gibbs, S. erroneous. v. W.2d clearly Hughes was holding do find that the We chancellor’s (1984). erroneous. clearly next address the of the cross-appeal
We their that the in contention chancellor erred that concluding Cammack, deed Mrs. and accompanying agree- ment, created an trust express charitable for a particular, charitable It is general, undisputed that there is no purpose. mention or in the deed agreement reversionary of a interest. Restatement Trusts (Second) that (b) provides a charitable be created “a may by trust transfer inter vivos owner to another to hold it a property person upon charitable trust.” Section comment 1 concerns the failure of charitable It trust. provides that: if the an settlor manifested intention to restrict his gift to the charitable particular and it purpose designated, is or becomes or impossible or impracticable illegal out the particular trust fails and the purpose, trustee holds the trust for the property upon resulting settlor or his estate.
The chancellor found that clearly Mrs. Cammack limited the use of the to the educational property cultural This program was the University. specific Therefore, charitable purpose. the chancellor held correctly if the Board fails to demonstrate good faith intentions the Cammack develop property shall revert to the within his appellants. was discretion to establish the deadline to best effectuate the charitable of Mrs. Cammack’s purpose gift.
The lower court felt that it is time to decide this case on the merits and our quoted excerpt from decision Foot’s Dixie Dandy Adm’r. McHenry, 607 S.W.2d (1980): Holmes made the ago remark many years Justice “Men must turn deal with square corners when they Island, government.” Rock Arkansas &Louisiana R.R. later, States, United U.S. Years two commentators added the logical corollary *5 Holmes’ remark: “It is hard see government why held to like standard of rectangular rectitude when McGuire & dealing with its citizens.” 166
Limet, Hobson’s Choice and Similar Practices Taxation, 1281,1299 Federal Har. Rev. 48 L. We (1935). with both agree ideas.
We and affirm on the direct agree and cross- appeal appeal.
Affirmed.
Hubbell, concurs. C.J., Sr.,
Dudley, Albert Graves J., Special Justice dissent.
George
Smith,
J.,
participating.
Rose
in part;
Hubbell,
Justice, concurring
Chief
Webb
result,
majority
to reach a
just
In order
part.
dissentingin
Govern
of the Arkansas Constitution.
modifies Art.
20§
law,
of the common
product
immunity
generally
mental
v.
&
by implication.”
been “derived
having
Keifer
Keifer
R.F.C.,
v.
U.S.
Mississippi,
Monaco
(1939);
Robert H. In Kate Justice, dissenting. Dudley, Cammack, deceased, G. now made an inter vivos of land gift the of of City within Little Rock to the Board Trustees of the of Arkansas. A simul- University contract delivered separate with the taneously deed that the Trustees would stipulated the develop into the University’s “Cammack the law sole devisees and heirs at of Campus.” Appellants, Cammack, in Kate contend that the resulted a charitable gift trust and that the so Trustees have unreasonably delayed the terms of the it has fulfilling trust now become impossible impracticable out purpose therefore, contend, the acres be should forty from the in divested state and vested them.
The Chancery Court ordered that title to the property in remain the Board of Trustees the of of University 1, 1997, and, Arkansas trustees until if January the trustees do not demonstrate their in good faith Cammack developing time, by that the land Campus should be divested from the state in vested appellants. The have filed a cross-appeal advancing, other among points, sovereign immunity clause.
Article of the Constitution of the State of Arkansas declares: “The State . . . shall never be made defendant of her any courts.” This court has expressly held a suit against Board of Trustees of the of is University Arkansas a suit against State. State Comm’r Labor v. University Arkansas Board Trustees, This decision is in accord with our earlier decisions Arkansas’ interpreting sovereign clause. In immunity Co. v. Engineering Kays, 106 Ark. 152 S.W. case (1913), precisely point, held that a replevin suit against trustees predecessor institution to Arkansas State recover fixtures was a suit In that case against State. we stated: whatever, interest, in the no
Appellees connection nor individual capacity, in their property, as of the State it, representatives except school, itself, but school. The trustees said Statutes authorized agency governmental under sought and the recovery sued sue *7 made with this governmental of the contract terms in rights being its necessarily involving agency relief is suit the State. No against and in fact but a effect their capacity in individual against sought them as of can be had against representatives and none for our sovereignty, the and its the of State agency of Arkansas shall “The State declares: Constitution her any never be made defendant in of courts.” Dodge, Id. at at In Watson S.W. 993. which has any we held that suit (1933), coercing of the State direct indirect and effect the or purpose against the is one state. The court quoted Hagood v. Southern, (1885), which stated: U.S. 52 record, it (the a to the
Though
nominally
party
interest, the
nominal
State)
only
is the real and
party
State,
of
agents
the officers and
the
being
defendants
in the
of the
subject-matter
no
interest
personal
having
suit,
the State. And
as
only
representing
and defending
decrees to
done
things
by
the
the
required
which,
them are the
when
very things
performed by
of
the
performance
done and
constitute
performed,
is
the
only
contract
the State. The State
alleged
by
the real
controversy,
party against
to the
but
realy party
relief is
the suit.
which
sought
States reviewed our
The
Court
United
Supreme
Texas,
That
in Arkansas v.
In the case at the Board of Trustees once again lawsuit, made a to a party the direct effect of which would be — deprive State property the forty acres. The trustees no interest whatever in this indi- property Their vidually. sole connection with the has been representatives the State in their capacity as University cases, trustees. By precedent of all our this is a suit in and, which the therefore, State the real it party cannot be *8 maintained.
The majority to opinion refers three of this opinions court as for authority maintenance of this suit. Those cases are not fairly applicable. hold that They equity may restrain acts of officers or public agencies which are beyond scope of their but if the authority, officers or public agencies have to Toan, act the suit not authority may maintained. Falbo, Comm’r Ark. 595 936 (1980); S.W.2d Eubank, 930, 512 Game Arkansas &Fish Comm’n v. Matthews, (1974); Harkey S.W.2d 410 (1967). The Board of Trustees of S.W.2d the University of Arkansas has the authority manage the University’s its actions are not beyond scope of The authority. majority does opinion this. dispute significant, as this is for Equally injunction. suit an a suit to take the land from the State. State is the real and the real party controversy, which party against relief is sought. article have chosen not majority only ignore con- cases of Arkansas our of the Constitution
20§ it, Two of but to do so without explanation. struing of jurisprudence are unenunciated philosophy results of each are: under Examples law. in the uncertainty constitutional provisions clear what circumstances and, suit fairness can a court’s concept this usurped by damages for monetary the state be maintained against on I reverse cross-appeal as for real estate? would well clause of the Consti- sovereign immunity because of the tution. Albert Special I am authorized state that Justice
Graves, Sr. this dissent. joins WYLIE, LAWSON, TAYLOR, Gary Tom H. James WATERS, Phillip FOSTER A. Ray J. Jr. CLINTON, Governor, CLARK, Attorney Steve v. Bill State, RIVIERE, General, Secretary and Paul Constituting Apportionment Board of Arkansas STATE Arkansas Court of Supreme delivered December Opinion