THE CONSTITUTIONAL STATUS OF THE UNIVERSITY OF MICHIGAN
THE foundations of the constitutional status of the University of Michigan were laid long prior to the writing of specific provisions into the constitution of the state. The roots of those provisions are to be found in the early history of the Northwest Territory and in the early efforts to establish education as one of the necessary functions of government (Hinsdale, Chap. XVI).
On May 20, 1785, the Congress adopted "an ordinance for ascertaining the mode of disposing of lands in the western country," establishing a system of rectangular land surveys for the new country. The ordinance contained the forward looking provision that "there shall be reserved the lot No. 16 of every township for the maintenance of public schools within the said township." The significance of this early provision can scarcely be overestimated. It gives evidence of a recognition by the central government of its obligation and duty Page 117to provide at government expense for education within the Northwest Territory — this in a day when public schools were almost an unknown phenomenon, even in the states already established.
Two years later, on July 13, 1787, the Congress adopted the measure, known as the Ordinance of 1787, entitled "An Ordinance for the Government of the Territory of the United States Northwest of the River Ohio," and on July 23 of the same year a supplementary measure was adopted, entitled "Powers to the Board of Treasury to Contract for the Sale of Western Territory." These two enactments were a part of the same general plan, and each of them contained important provisions concerning education. The earlier of the two, i.e., the ordinance, contained the often quoted general declaration: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged" (Northwest Ordinance, Art. 3).
The supplementary measure of July 23 was more specific. It reiterated the grant of 1785 allocating lot No. 16 in each township "to be given perpetually for the purpose of maintenance of the public schools within the township," and, more importantly so far as the University is concerned, it added:
[Not more than two complete townships] shall be given perpetually for the purpose of a university, to be laid off by the purchaser or purchasers as near the centre as may be, so that the same shall be of good land, to be applied to the intended object by the legislature of the state.
These three measures, adopted by the Congress of the Confederation and, in effect, made a part of the fundamental law of the Northwest Territory, established a unique and valuable policy with respect to the encouragement and support of both elementary and higher education. Furthermore, it was a policy of remarkable vitality, as is amply attested by the fact that it has ever since been reflected to a greater or less extent in the fundamental law of the part of the Territory carved out in 1837 to form the state of Michigan.
In 1817 the predecessor of the University, the Catholepistemiad, was established by a territorial act (II Terr. Laws, 1817, p. 104), and in 1821, by a new enactment, the University itself was created as a "body politic and corporate" (I Terr. Laws, 1821, p. 879).
In pursuance of the policy established by the ordinances of 1785 and 1787, the Congress on May 20, 1826, passed the following measure:
[The Secretary of the Treasury is hereby authorized] to set apart and reserve from sale out of any of the public lands within the Territory of Michigan to which the Indian title has been extinguished a quantity of land not exceeding two entire townships for the use and support of a university.
(4 U. S. Stat. L. 180.)
The grant was early accepted by the state (Laws, 1835-36, p. 149), and the Congress confirmed the selection of lands (5 U. S. Stat. L. 59). The superintendent of public instruction was directed to sell not to exceed five hundred thousand dollars' worth of these lands and to deposit the proceeds to the credit of a University interest fund (Laws, 1837, p. 209). The fund thus established, together with income in the form of fees and miscellaneous gifts, constituted the principal source of financial support of the University of Michigan until 1867. In that year additional financial aid was sought and obtained from the state legislature. The interest fund even today amounts to a considerable sum — about $38,000 per year (Price, pp. 26 ff.).
This federal territorial policy of providing both encouragement and continuing fiscal support for the University was Page 118subsequently carried on by the state in a wise and generous way. On the fiscal side, after the interest fund became insufficient to care for the needs of the growing institution, the "mill-tax" laws were passed to provide the necessary funds. The first of these laws, passed in 1867, consisted of an appropriation for the support of the University of a sum equal to one-twentieth of a mill on each dollar of taxable property in the state. Perhaps the most valuable and certainly the unique feature of this measure and its successors was their continuing nature, i.e., instead of being biennial appropriations, they were in reality permanent laws continuing from year to year until changed by subsequent affirmative legislative enactment. They thus approximated the permanence of the federal land endowment for the University. They gave the institution the stability enjoyed by the large privately endowed schools of the East. With some variations the policy of this mill-tax law of 1867 has been continued until the present day, and, although it is a statutory rather than a constitutional device, it has become so thoroughly a part of the accepted legislative practice and of the tradition of the state as virtually to share the permanent status of fundamental law. (See Appendix A, p. 136, for a list of the mill-tax acts.) It constitutes one of the major reasons for the fact that the University of Michigan has attained a first place among the state universities of the country.
The Constitution of 1835. — When Michigan adopted its first constitution, in 1835, two express provisions were written into the fundamental law concerning higher education. (See Appendix B, p. 137, for full text of provisions for University and public-school support in the Constitution of 1835.) One of these, section 2 of Article X, was general and followed the style set by the similar declaration in the Ordinance of 1787. It stipulated that "the legislature shall encourage by all suitable means the promotion of intellectual, scientific, and agricultural improvement." The other provision was more specific. In section 5 of Article X was the requirement:
… the legislature shall take measures for the protection and improvement or other disposition of such lands as have been or may hereafter be reserved or granted by the United States to this state for the support of a university; and the funds accruing from the rents or sale of such lands or from any other source for the purpose aforesaid shall be and remain a permanent fund for the support of said university.
These provisions were written into the constitution in an effort to pursue the policy established by the national government during territorial days. They were good so far as they went; however, they left full power in the legislature to manage the affairs of the University, to regulate the appointment of the Regents, to establish or abolish departments, to regulate the appointment of professors, and to control expenditures from the University funds. In short, they left the internal administration of the University fully subject to the changing desires of the political arena at the state Capitol, then in Detroit.
In spite of early efforts to build the University into a strong institution, success and prosperity were not achieved in the period between 1835 and the revision of the constitution in 1850. The more thoughtful public men of the time felt that one of the reasons for the failure of the University to develop rapidly was the fact that its functioning was dependent upon and subject to the changing policies of the legislature. They felt that under such conditions the University could not attain the degree of stability, permanence, independence, and strength enjoyed by the denominational and endowed Page 119colleges of the East. The shortcomings were functional rather than fiscal.
In 1840 a select committee was appointed by the legislature to inquire into the condition of the University. A part of the report of the committee indicates clearly the consensus of contemporary opinion concerning higher education in the state:
No State institution in America has prospered as well as independent colleges with equal, and often with less, means. Why they have not may be ascribed, in part, to the following causes: They have not been guided by that oneness of purpose and singleness of aim (essential to their prosperity) that others have whose trustees are a permanent body, — men chosen for their supposed fitness for that very office, and who, having become acquainted with their duties, can and are disposed to pursue a steady course, which inspires confidence and insures success, to the extent of their limited means. State institutions, on the contrary, have fallen into the hands of the several legislatures, fluctuating bodies of men, chosen with reference to their supposed qualifications for other duties than cherishing literary institutions. When legislatures have legislated directly for colleges, their measures have been as fluctuating as the changing materials of which the legislatures were composed. When they have acted through a board of trustees, under the show of giving a representation to all, they have appointed men of such dissimilar and discordant characters and views that they never could act in concert; so that, whilst supposed to act for and represent everybody, they, in fact, have not and could not act for anybody.
Again, legislatures, wishing to retain all the power of the State in their own hands, as if they alone were competent or disposed to act for the general good, have not been willing to appoint trustees for a length of time sufficient for them to become acquainted with their duties, to become interested in the cause which they were appointed to watch over, and feel the deep responsibility of the trust committed to them. A new board of trustees, like a legislature of new members, not knowing well what to do, generally begins by undoing and disorganizing all that has been done before. At first they dig up the seed a few times, to see that it is going to come up; and, after it appears above the surface, they must pull it up, to see that the roots are sound; and they must pull it up again, to see if there is sufficient root to support so vigorous branches; then lop off the branches, for fear they will exhaust the root; and then pull it up again, to see why it looks so sickly and pining, and finally to see if they can discover what made it die. And, as these several operations are performed by successive hands, no one can be charged with the guilt of destroying the valuable tree. Whilst State institutions have been, through the jealousy of State legislatures, thus sacrificed to the impatience and petulance of a heterogeneous and changeable board of trustees, whose term of office is so short that they have not time to discover their mistakes, retrace their steps, and correct their errors, it is not surprising that State universities have hitherto, almost without exception, failed to accomplish, in proportion to their means, the amount of good that was expected from them, and much less thancolleges in their neighborhood, patronized by the religious public, watched over by a board of trustees of similar qualifications for duty, and holding the office permanently, that they may profit by experience.
The argument by which legislatures have hitherto convinced themselves that it was their duty to legislate universities to death is this: "It is a State institution, and we are the direct representatives of the people, and therefore it is expected of us; it is our right. The people have an interest in this thing, and we must attend to it." As if, because a university belongs to the people, that were reason why it should be dosed to death for fear it would be sick, if left to be nursed, like other institutions, by its immediate guardians. Thus has State after State, in this American Union, endowed universities, and then, by repeated contradictory and over legislation, torn them to pieces with the same facility as they do the statute book, and for the same reason, because they have the right.
(2 H. Doc., 1840, p. 470.)
Page 120The Constitution of 1850. — Such was the condition of affairs when the constitutional convention of 1850 met. Any reader of the debates of that convention will be impressed with the attitude of the delegates toward higher education. They recognized the need of removing the University from changing political influences and yet keeping it directly responsible and amenable to the people (Debates, pp. 782-85, 804, 846).
As a result of the work of the convention, provisions were therefore written into the Constitution of 1850 (Art. XIII) to establish the University as an independent constitutional corporation under the control of a Board of Regents elected directly by the people.* The Board was made a body corporate, to be known by the name and title of "the Regents of the University of Michigan." Then followed the all-important clause: "The Board of Regents shall have the general supervision of the University and the direction and control of all expenditures from the University interest fund." By virtue of these provisions a quasi-independent constitutional corporation was substituted for the prior dependent statutory agency, and a permanent and stable educational plan for the University of Michigan was brought into being. Responsibility directly to the people of the state was substituted for responsibility to the state legislature. (For the full text of University provisions in the amended Constitution of 1850, see Appendix C, p. 137.)
Some years later, in the case of Sterling v. The Regents of the University of Michigan (110 Mich. 369 ), involving the interpretation of the University clauses in the Constitution of 1850, Mr. Justice Grant phrased the results of the convention as follows:
Obviously it was not the intention of the framers of the Constitution to take away from the people the government of this institution. On the contrary, they designed to, and did, provide for its management and control by a body of eight men elected by the people at large. They recognized the necessity that it should be in charge of men elected for long terms, and whose sole official duty it should be to look after its interests, and who should have the opportunity to investigate its needs, and carefully deliberate and determine what things would best promote its usefulness for the benefit of the people. Some of the members of the convention of 1850 referred in the debates to two colleges (one in Virginia and the other in Massachusetts) which had been failures under the management by the State. It is obvious to every intelligent and reflecting mind that such an institution would be safer and more certain of permanent success in the control of such a body than in that of the legislature, composed of 132 members, elected every two years, many of whom would, of necessity, know but little of its needs, and would have little or no time to intelligently investigate and determine the policy essential for the success of a great university.
Judicial interpretation of the "general-supervision" clause. — The language thus written into the constitution established a vital policy, but it was couched in general terms and required interpretation. What was meant by the words "general supervision," and by "control" of expenditures? A considerable period of time elapsed before these phrases were submitted to the courts of the state for authoritative interpretation.
The first case that reached the Supreme Court was People v. The Regents of the University of Michigan (4 Mich. 98), decided in 1856. The court was asked to issue a writ of mandamus to compel the Regents to establish a professorship of Page 121homeopathy. In 1855 the legislature had amended the act of 1851 by adding the demand that the University employ at least one professor of homeopathy (Laws, 1855, p. 232). The Board answered the prayer for a writ, stating that, although the right of the legislature to interfere with the administration of the University was not admitted, nevertheless the Board, out of respect for the wishes of the legislature, was taking all reasonable steps to comply with the amendment and to secure a professor of homeopathy. It was alleged that a committee had been appointed to explore the field in both Europe and America, to the end that the best available man might be selected. It was further alleged that the committee had not yet had time to report, and that without full deliberation wise action could not be taken. The plaintiff demurred to the answer.
The court (per Wing, J.) refused to issue the writ and quoted the provisions of the Constitution of 1850 to the effect that "the Board of Regents shall have the general supervision of the University and the direction and control of all expenditures from the University interest fund." The members of the Board of Regents were referred to as "constitutional officers," but the decision in the case was not based upon constitutional grounds. Instead, mention was made of the efforts of the Board to secure a professor of homeopathy and of the short time which had elapsed since the effective date of the amendment of 1855. The court added:
[The Regents] aver that they have acted in good faith, but at the same time under the influence of much uncertainty as to the constitutionality of the law, and we are compelled to recognize in this question what might well suggest doubts of the binding force of the law and [what] occasioned some hesitation in their action.
After raising the constitutional question in this way, the court declined to pass upon it. Instead, it chose to refuse to issue the writ on the ground that the Board of Regents had the discretionary power to deliberate for a reasonable period of time in the selection of a professor of homeopathy, and that until such reasonable time should expire the court would decline to exercise its discretionary power to issue the writ.
Because of the fact that the court failed to pass upon the constitutional question, the decision in the case is perhaps of minor significance. The opinion does, however, contain a judicial recognition of the potential constitutional barrier to legislative interference with the administration of the University, and for this reason it must be regarded as a leading case on the subject.
It was not until 1868 that another controversy arose to present the question of the constitutional independence of the Board of Regents in supervision of the University. In that year the case of People ex rel. Regents of the University v. Auditor General (17 Mich. 161) was decided. It appeared that the Board, acting no doubt under the influence of the passage quoted above from the opinion in the case in 1856, had felt obliged to disregard the amendment of 1855 directing the appointment of a professor of homeopathy. In any event, the Board had ceased its efforts to secure such a professor.
In 1867 the University was forced to ask for additional financial support from the legislature. Aid was granted by the passage of the first mill-tax law, appropriating for the University the proceeds of a levy of one-twentieth of a mill upon the taxable property of the state (see Part I: Angell Administration). The legislature had not, however, forgotten its desire for a professor of homeopathy, so the appropriation was made conditional upon the Board of Regents' first Page 122appointing at least one such professor. Thereafter, the Regents, in a quandary but needing the appropriation very badly, passed a resolution purporting to comply with the condition. The resolution contemplated the establishment of a homeopathic department away from Ann Arbor. A professor of homeopathy was duly employed, and a requisition was filed for the payment of his salary voucher. The auditor-general refused to approve the payment on the ground that the condition precedent had not been complied with by the Board's attempt to establish a department of homeopathy at a point separated from the principal campus. The Board sought a writ of mandamus to compel the payment of the salary.
The prayer was in vain. The court divided, two justices feeling that the establishment of a department outside of Ann Arbor fell short of meeting the intent of the legislature and did not adequately comply with the condition precedent, one justice feeling otherwise and so expressing himself, and the fourth justice, Cooley, remaining silent. All justices, however, seemed to agree that the condition precedent was valid, and that if the legislature imposed such conditions they must be performed by the Board if it wished to take advantage of the conditional appropriation.
Since this case was the first adjudication involving a conditional appropriation for the support of the University, it is an important landmark. The action of the court in recognizing by implication the validity of conditions precedent established a principle of substantial significance in outlining the constitutional status of the University.
In 1869 the homeopathic dispute flared up once more and resulted in another Supreme Court decision. In People v. The Regents of the University of Michigan (18 Mich. 469) it appeared that application had been made by the attorney general of the state for a writ of mandamus to compel the Regents to comply with the original act of 1855 and to employ a professor of homeopathy. It was alleged that some fourteen years had now elapsed during which the Board might have deliberated upon the selection of a proper man for the position, and that they could no longer with reason claim that further time was needed for consideration. The Board answered, resisting the issuance of the writ of mandamus squarely on the ground that the University was a constitutionally independent corporation so far as supervision was concerned, and that the matter of appointment of professors was for the Board's judgment alone.
The court again, as in the case in 1856, failed to reach a decision on the constitutional point. The four justices divided equally, two of them taking the position that the attempt by the legislature to interfere with the administration of the University was unconstitutional, and two others taking the adverse view. Because of the division in the court, the writ did not issue, but, since two extremely able judges (Graves and Christiancy) felt that the writ should issue, it is apparent that the interpretation of the general-supervision clause was not free from doubt.
Once again the question arose, in 1874, as a result of the order to the Regents in a new enactment passed by the legislature of 1873:
[The Board of Regents shall appoint] two Professors of Homeopathy in the Department of Medicine, viz., one Professor of Theory and Practice and one Professor of Materia Medica, who shall receive the like salary and be entitled to all the rights and privileges of other persons in said Department of Medicine.
(Laws, 1873, No. 63.)
Application was again made by the Page 123attorney general for a writ of mandamus to compel the Board to appoint these professors. In the case of People ex rel. Attorney General v. The Regents of the University (30 Mich. 473), the court once more expressed itself as unable to issue the writ, stating that the judges were still equally divided on the question of whether or not the general-supervision clause established the constitutional independence of the University with regard to this matter.
The troublesome question of the establishment of a department of homeopathy was settled in 1875 by the adoption by the legislature of an act "authorizing" the Regents to establish the Homoeopathic Medical College in Ann Arbor and appropriating $6,000 per year for its support (P.A., 1875, No. 128, p. 156). Pursuant to this act the College was duly established. In 1893 its maintenance was doubly assured by being made a condition attached to the receipt by the University of the mill-tax appropriation of that year (P.A., 1893, No. 19, p. 19).
In 1895 the legislature experienced a change of heart. Instead of continuing in its anxiety to have the Homoeopathic Medical College in Ann Arbor, it enacted a measure commanding the removal of the College to Detroit (P.A., 1895, No. 257, p. 554). The act was carried into the courts a year later in the case of Sterling v. The Regents of the University of Michigan (110 Mich. 369) and was held unconstitutional as an interference with the Regents' power of supervision of the University. (This case, which is of considerable importance in establishing the constitutional status of the University, is more fully described below, pp. 125-26.) Finally, in 1921, the legislative ideas on the subject passed through a third phase, and a joint resolution was adopted requesting the University to abandon the Homeopathic Medical School. Simultaneously, the mill-tax act then in effect was amended to drop the condition which had been incorporated in 1893 requiring the maintenance of the unit in homeopathy, and the entire matter was thereby left in the hands of the Regents (P.A., 1921, No. 247, p. 924). The School was discontinued by action of the Regents in 1922 (R.P. 1920-23, pp. 372-74).
Although the constitutional status of the University was placed before the courts time and time again in the course of this dispute over the Homeopathic Medical College, the earlier litigation was singularly fruitless so far as definitive interpretation was concerned. The precise meaning of the general-supervision clause and the scope of the independence of the Board of Regents remained shrouded in doubt for more than forty years.
It was not until 1893 that a really authoritative interpretation was handed down by the Supreme Court as to the meaning of the all-important language of the constitution. In that year the case of Weinberg v. The Regents of the University of Michigan (97 Mich. 246) was decided. The plaintiff in the case brought suit against the Regents to recover the value of materials furnished to a subcontractor in the building of the University Hospital. The claim was made under the Mechanics' Lien Law of 1883, which imposed the duty on boards or agencies contracting for the erection of buildings "on behalf of the state" to secure bonds to protect subcontractors and material men. The University authorities, in directing the construction of the University Hospital, had ignored this law.
The Regents demurred to the declaration, on the ground that the statute in question did not and could not constitutionally apply to the University. Two arguments were advanced: first, that the statute in question applied only to Page 124buildings built by "the state," and that this should not be interpreted to include the University, which was a separate constitutional corporation; and second, that, even if the statute were intended to apply to the University, it could not constitutionally be so applied in view of the fact that the general supervision of the University was by the constitution vested in the Board of Regents and hence was placed beyond legislative enactment so far as its internal affairs were concerned.
The demurrer was overruled by the trial court, and the Regents carried the case to the Supreme Court. That tribunal reversed the trial court, but was closely divided in its opinion, three justices being in favor of reversal and two in favor of affirmance. Mr. Justice Grant wrote the opinion for the majority. He based his argument for reversal partly upon each of the two grounds of the demurrer. He quoted the provisions of Article XIII, sections 7 and 8, of the Constitution of 1850, and expressed the conclusions of the majority, in part, as follows:
Under the Constitution the state cannot control the action of the Regents. It cannot add to or take away from its property without the consent of the Regents. In making appropriations for its support, the Legislature may attach any conditions it may deem expedient and wise, and the Regents cannot receive the appropriation without complying with the conditions. This has been done in several instances.
Property aggregating in value nearly or quite half a million of dollars has been donated to the University by private individuals. Such property is the property of the University. It is not under the control of the state when it acts through its executive or legislative departments, but of the Regents who are directly responsible to the people for the execution of their trust, so when the state appropriates money to the University, it passes to the Regents and becomes the property of the University to be expended under the exclusive direction of the Regents, and passes beyond the control of the state through its legislative department. …
The people, who are incorporators of this institution of learning, have by their Constitution conferred the entire control and management of its affairs and property upon the corporation designated as "the Regents of the University of Michigan" and have thereby excluded all departments of the state government from any interference therewith. The fact that it is state property does not bring the Regents within the purview of the statute. The people may by their Constitution place any of its institutions or property beyond the control of the Legislature…
These considerations lead me to the conclusion that the Regents are not included in this act and that the judgment should be reversed.
So far as the constitutional status of the University is concerned, this decision lacks something in clarity and definiteness because of the fact that it is partly grounded upon interpretation of the words, "on behalf of the state," in the Mechanics' Lien Law. The constitutional language of the opinion perhaps should be regarded as dictum. Nevertheless, the dictum is so pointed and compelling that the case is frequently cited as a constitutional decision, and in several of the later cases it is regarded as passing directly upon the constitutional position of the University. It is used as twofold authority. In the first place, it is regarded as supporting the conclusion that, under the power of general supervision conferred by the constitution, the management of the University is placed in the hands of the Board of Regents and is not subject to enactments by the state legislature designed for the purpose of governing, controlling, and managing state institutions generally. In the second place, the opinion attains importance by reason of its statement that appropriations Page 125of money made by the legislature for the University become "the property of the University" and pass "beyond the control of the state through its legislative department," except to the extent that such appropriations may be subject to conditions precedent attached by the legislature as a part of the appropriation acts. This second conclusion is particularly significant in consideration of the validity of some of the very recent legislation purporting to confer upon the governor of the state authority to reduce appropriations either pro rata or in his discretion for the purpose of balancing the budget (see p. 131).
The next case involving the interpretation and application of the constitutional provisions relating to the University — and the one which may be regarded as definitive — was Sterling v. The Regents of the University of Michigan, decided in 1896 (110 Mich. 369). As has been previously stated, this case was one of the events in the lengthy dispute over the establishment of a homeopathic medical college in the University. In particular, it arose out of Act No. 257 of the Public Acts of 1895. This act had provided in mandatory form for the removal of the Homeopathic Medical College from Ann Arbor to Detroit. The Regents refused to comply, and Mr. Sterling started proceedings to compel favorable action. The Regents answered the petition, stating that they based their refusal to comply primarily upon the ground that the legislature had no constitutional right to dictate the management of the University. Since the provisions of Act No. 257 were not made a condition precedent to an appropriation, the question of the independence of the supervisory power of the Board of Regents was presented for decision in its clearest form.
The court (Mr. Justice Grant again writing the opinion) refused to issue the writ. The provisions of the Constitution of 1850 were quoted, and the reasons inducing their adoption were set forth at great length. The court felt that the framers of the constitution could not have intended the legislature to interfere in the manner attempted by the act in question. Reference was made to the Weinberg case (97 Mich. 246 ; see p. 123), which was said to be controlling on the constitutional point. The court said that the earlier case might have been relied upon as the sole ground for the decision of the instant case. Nevertheless, after reiterating the arguments advanced in that case, the court supplemented them with still further reasons why the legislature could not control the University in the manner attempted without conflicting with the grant of supervisory power to the Board of Regents:
We are therefore constrained to state some further reasons to show that the legislature has no control over the University or the board of regents.
1. The board of regents and the legislature derive their power from the same supreme authority, namely, the Constitution. In so far as the powers of each are defined by that instrument, limitations are imposed, and a direct power conferred upon one necessarily excludes its existence in the other, in the absence of language showing the contrary intent. Neither the University nor the board of regents is mentioned in article 4, which defines the powers and duties of the legislature; nor in the article relating to the University and the board of regents is there any language which can be construed into conferring upon or reserving any control over that institution in the legislature. They are separate and distinct constitutional bodies, with the powers of the regents defined. By no rule of construction can it be held that either can encroach upon or exercise the powers conferred upon the other.
2. The board of regents is the only corporation provided for in the Constitution whose powers are defined therein. In every Page 126other corporation provided for in the Constitution it is expressly provided that its powers shall be such as the legislature shall give. In the case of townships (article 11, paragraph 2), and in counties (article 10, paragraph 1), and boards of supervisors (article 10, paragraph 6), it is expressly provided that each corporation shall have such powers and immunities as shall be prescribed by law. The same is true of other officers, aside from the regents, provided for in the Constitution. Justices of the peace (article 6, paragraph 18), the sheriff, the county clerk, the county treasurer, the register of deeds, and prosecuting attorney (article 10, paragraph 3), and township officers (article 11, paragraph 1), can exercise such powers as shall be prescribed by law.
3. Let us apply another test. It is a rule of construction that where a general power over one subject is conferred upon one body in one clause of an instrument, without any restricting or qualifying language, and the like power over another subject is conferred upon another body in another clause of the same instrument, with restricting or qualifying language, the restrictions or qualifications of the second clause cannot be read into the first clause. On the contrary, they must be excluded. By article 13, paragraph 1, the superintendent of public instruction is clothed with "the general supervision of public instruction;" but it is added, "His duties shall be prescribed by law." By article 13, paragraph 9, the board of education is given "the general supervision of the State Normal School;" but it is added, "Their duties shall be prescribed by law."
Thus, in every case except that of the regents, the Constitution carefully and expressly reposes in the legislature the power to legislate and to control and define the duties of those corporations and officers. Can it be held that the framers of the Constitution, and the people, in adopting it, had no purpose in conferring this power, viz., the "general supervision," upon the regents in the one instance, and in restricting it in the others? No other conclusion, in my judgment, is possible than that the intention was to place this institution in the direct and exclusive control of the people themselves, through a constitutional body elected by them. As already shown, the maintenance of this power in the legislature would give to it the sole control and general supervision of the institution, and make the regents merely ministerial officers, with no other power than to carry into effect the general supervision which the legislature may see fit to exercise, or, in other words, to register its will. We do not think the Constitution can bear that construction.
The writ is denied.
The opinion of the court in the Sterling case not only is important from the standpoint of constitutional law, but also is peculiarly instructive, both as an exposition of the history of the constitutional provisions of 1850 and as a careful delineation of the legal reasons supporting a broad interpretation of the constitutional language conferring upon the Board of Regents "general supervision of the University and direction and control of all expenditures from the University interest fund." The opinion was prepared with great skill and care and was concurred in by all of the members of the court. The division in the tribunal had vanished.
The Constitution of 1908. — Fifteen years elapsed after the Sterling case before the Supreme Court was again called upon to interpret the University clauses of the constitution. In the meantime the new Constitution of 1908 had been drafted and adopted. The provisions of this constitution were similar to those of the Constitution of 1850 insofar as the University was concerned. Section 5 of Article XI stipulated that "the Board of Regents shall have the general supervision of the University and the direction and control of all expenditures from the University funds." (The full text of University provisions in the Constitution of 1908 is given in Appendix D, p. 138.) The word "interest," which had followed the word "University" in the Constitution of 1850, was omitted, and the word "fund" was changed to Page 127"funds," thus placing all University funds — the University interest fund, legislative appropriations, and funds from other sources — under the exclusive control of the Board of Regents.
In 1911, shortly after the adoption of the new constitution, the Supreme Court handed down its decision in Board of Regents of the University of Michigan v. The Auditor General (167 Mich. 444). The case arose under Act No. 102 of the Public Acts of 1899, imposing a tax of one-quarter of a mill upon the taxable property of the state and appropriating the proceeds for the use and maintenance of the University. The last clause of the act provided that the "Auditor General shall issue his warrants therefor [i.e., for disbursements under the appropriation] as in the case of special appropriations." Under other statutes the auditor-general was given general authority relating to "special appropriations," empowering him to examine vouchers for expenditures issued by state educational, charitable, reformatory, or penal institutions, and to approve them if they appeared to be for "lawful purposes."
The treasurer of the University made requisition upon the auditor-general for the monthly expenditures under the appropriation act. The latter refused to draw his warrant for the amount of the requisition, for the reason, he alleged, that certain of the vouchers issued by the Regents were in his opinion unlawful. Among other contested items were vouchers of President Angell for traveling expenses incurred in attending alumni meetings and inaugurations of presidents of other universities; also vouchers of various members of the faculty, acting under the authority of the president and of the Board of Regents, for traveling expenses incurred in attending intercollegiate meetings and conferences as delegates or representatives of the University, and in accompanying students on tours of inspection of engineering plants.
It was the opinion of the auditor-general that such expenditures were not for the "use and maintenance of the University," as contemplated by the appropriation act and hence that they were unauthorized and unlawful. He contended that the last clause of the act, above quoted, gave him authority to pass upon the question of lawfulness and to refuse to issue warrants in the event that he should find the expenditures ultra vires. The Regents, on the other hand, contended that the clause should not be regarded as giving the auditor-general power to pass on the lawfulness of requisitions issued by the Board against University appropriations. Reliance was placed upon the constitutional clause giving to the Board of Regents "general supervision of the University and the direction and control of all expenditures from University funds."
The court emphatically agreed with the Regents and issued the writ of mandamus as requested. Prior decisions were regarded as establishing conclusively the independence of the control of the Board of Regents over all the internal affairs of the University. The court conceded that conditions might be attached by the legislature to appropriations made for the University, and stated that, in the event such conditions were attached, the Regents might accept or reject the funds as they saw fit, but if they accepted them the conditions became binding. It was pointed out, for example, that the mill-tax act involved in the instant case contained specific conditions concerning a number of matters, including the maintenance of certain named departments in the University. (See Appendix E, p. 138, for full text of the act.) With these conditions, Page 128said the court, the Regents must comply, and ruled as follows:
… for a failure to maintain any of said departments the penalty is a reduction of the tax to one-twentieth of a mill, but beyond that the money passes to the Regents and becomes the property of the University to be expended under the exclusive direction of the Regents.
As to the final proviso of the act, which was not in conditional form but which was relied upon by the auditor-general to give him the power to pass judgment upon the lawfulness of University requisitions, the court expressed itself as follows:
We cannot construe the language of the final proviso of the act in question as an intent on the part of the legislature to overthrow the public policy of over half a century, plainly deducible from the general course of legislation and adjudication relating thereto, or as a purpose on their part to refuse aid to the University, unless the regents surrender their constitutional right to control the affairs and finances of the institution, and submit their judgment as to the wisdom and expediency of detailed expenditures for current expenses to that of the auditor general. Neither in construing this proviso can we interpret it as an intent thus by indirection to enlarge the scope of the enacting clause and ingraft upon this appropriation all conditions and restrictions found in the accounting laws of the State, together with any legislation which may be read in connection therewith.
No money is paid out of the State treasury except on the warrant of the auditor general. In this case, as in many others, his duties are purely ministerial. As against the discretion of the regents in expenditure of the University funds he exercises no judicial functions. As to him, in the performance of his official duties, vouchers for expenditures made within the amount of the appropriation, when authorized by the board of regents and properly authenticated by the duly constituted officials, are, within the meaning of the law, "for lawful purposes."
A writ of mandamus will issue as prayed.
One of the important features of this decision is the fact that the court clarifies the law with respect to conditions and conditional appropriations. In an earlier case, i.e., People ex rel. Regents of the University v. Auditor General (17 Mich. 160), as has already been pointed out, the court had assumed that conditions could be attached constitutionally to University appropriations. In the instant case, however, the power of the legislature to attach such conditions is expounded in definite language and is established as one of the accepted principles of interpretation of the constitutional position of the University. At the same time the court makes it equally clear that legislative mandates not expressed as conditions but written directly into appropriation acts will be held unconstitutional if they invade the domain of "general supervision of the University and the direction and control of expenditures from University funds."
An important question is thereby left by the court for future determination: How far may the legislature go in the direction of controlling the internal affairs of the University by couching its mandates in the form of conditions precedent and attaching them to appropriation acts? May it by this simple drafting device in effect nullify the constitutional provisions involved?
This question was finally brought to issue and decided in 1924. A controversy arose concerning, not the University, but Michigan Agricultural College (now Michigan State College of Agriculture and Applied Science), and the court handed down its decision in the case of State Board of Agriculture v. The Auditor General (226 Mich. 417). The legislature had appropriated to the college upward of a half a million dollars per year divided into smaller amounts and designated for a variety of purposes connected with the co-operative agricultural extension work Page 129carried on by the college. The appropriation act concluded with the clause: "each of said amounts shall be used solely for the specific purposes herein stated, subject to the general supervisory control of the State Administrative Board." By the Constitution of 1908 the State Board of Agriculture had been vested with the power of government of the Michigan Agricultural College, and the constitutional convention was so well satisfied with the functioning of the University under the provisions of the Constitution of 1850 that a similar constitutional status was conferred upon the college. In Article XI, section 8, the new constitution stipulated that "the Board [State Board of Agriculture] shall have general supervision of the College and the direction and control of all Agricultural College funds" — a clause practically identical with the corresponding University clause.
The college presented a requisition for a portion of the appropriation, but the auditor-general refused to issue the warrant because the expenditure had not been authorized by the State Administrative Board. The State Board of Agriculture sought a writ of mandamus. In support of the petition it was contended that the attempt in the appropriation act to subject the appropriation for agricultural extension work to the supervisory control of the State Administrative Board was unconstitutional. The court was therefore required to determine whether the above quoted clause constituted a condition, and if so whether or not a condition might constitutionally be attached which in effect would render the administration of the college subject to the general supervisory control of the State Administrative Board.
The court — at that time made up of eight justices, as at present — divided on the subject. Apparently the entire court, after a careful consideration of the case, assumed that the language constituted a condition, but five justices regarded the condition in question as unconstitutional, while three dissented. The writ of mandamus was issued. Mr. Justice McDonald wrote the opinion for the majority of the court. He compared the Michigan Agricultural College to the University and turned to the earlier decisions concerning the status of the University for judicial precedent. He felt that if the condition were to be accepted as constitutional and applied it would completely overturn the well-settled policy of the state relative to the management and control of both the University and the college. He said, in part:
These institutions of learning are very close to the hearts of the people of Michigan. They have made of them the most unique organizations known to the law, in this, that they are constitutional corporations created for the purpose of independently discharging state functions. The people are themselves the incorporators. The boards that control them are responsible only to the people who elect them. They are independent of every other department of the state government. … The progress which our University has made is due in large measure to the fact that the framers of the Constitution of 1850 wisely provided against legislative interference by placing its exclusive management in the hands of a constitutional board elected by the people. The underlying idea was that the best result would be attained by centering the responsibility in one body independent of the Legislature and answerable only to the people.… The policy … has proven so satisfactory to the people that in the constitutional convention of 1908 similar action was taken with reference to the Agricultural College. The State Board of Agriculture was made a constitutional body; it was given the sole management of the affairs of the College and the exclusive control of all of its funds.
"When the State appropriates money to Page 130the University it passes to the regents, and becomes the property of the University, to be expended under the exclusive direction of the regents, and passes beyond the control of the State through its legislative department." Weinberg v. Regents of the University, 97 Mich. 246.
There is, however, a distinction between funds received by way of appropriations and other college funds. The appropriation may be upon condition that the money shall be used for a specific purpose, or upon any other condition that the legislature can lawfully impose. The language used in some previous decisions of this court in reference to this question seems to have been misunderstood. For instance, the following:
"In making appropriations for its support, the legislature may attach any conditions it may deem expedient and wise, and the regents cannot receive the appropriation without complying with the conditions." Weinberg v. Regents of University.
Clearly, in saying that the legislature can attach to an appropriation any condition which it may deem expedient and wise, the court had in mind only such a condition as the legislature had power to make. It did not mean that a condition could be imposed that would be an invasion of the constitutional rights and powers of the governing board of the college. It did not mean to say that, in order to avail itself of the money appropriated, the State board of agriculture must turn over to the legislature management and control of the college, or of any of its activities. This logically leads us to a consideration of the character of the condition attached to the appropriation involved in the instant case. Is it a condition that the legislature had power to make? The appropriation (Act No. 308, Pub. Acts 1923) is subject to two conditions, first, that the money appropriated shall be used for the specific purpose of carrying on co-operative agricultural extension work under the provisions of an act of congress, known as the "Smith-Lever act (38 U.S. Stat. p. 372)," and second, that it "shall be used … subject to the general supervisory control of the State administrative board."
It is not an easy matter to separate a supervisory control of the expenditure of money for extension work from a control of the work itself. Whatever meaning the legislature intended the term "general supervisory control" to import, there is no question as to the interpretation given to it by the State administrative board. It appears in the following resolution adopted on July 10, 1923:
- "1. That the general supervision of the extension work of the Michigan Agricultural College, together with the authority to hire county agents and all other employees and to prescribe their duties and fix their salaries, be placed by the State board of agriculture by proper resolution, in the hands of the dean of agriculture of the college.
- "2. That county agents receive their entire salaries and expenses from the Federal government, the State, or the several counties of the State, but from no other source.
- "3. That the dean of agriculture submit to this board immediately a revised budget of salaries and expenses based under the Smith-Lever act, the United States department of agriculture, and the State and county appropriations, and if these funds are insufficient to carry on the work as outlined, the matter be referred to this board for further attention."
From the above resolutions it will be noted that, exercising its legislative right to "general supervisory control," the State administrative board proposes to take the extension work entirely out of the hands of the board of agriculture and give it over to a dean of the college. In this the State administrative board is assuming to exercise authority vested by the Constitution solely in the board of agriculture. It is not a question as to the wisdom of the method proposed by the administrative board. The business policy and management of all of the affairs of the college belong to the State board of agriculture. The people , speaking through their Constitution, have so decreed. It is also proposed to reject contributions from county farm bureaus, amounting to $191,489, on the theory that it is not only unlawful but a bad business policy to allow the bureaus to pay a part of the salaries of employees engaged in extension work. It may be so, but the Page 131right to accept or reject contributions to carry on any college activity is a matter to be determined exclusively by the State board of agriculture. The legislature cannot interfere nor can it delegate any authority to the administrative board which it, itself, does not possess. My Brother Wiest justifies the delegation of such authority by the legislature on the ground that it is a part of the present-day legislative policy in carrying out a modern system of State finance. The efficiency of the present system may well be conceded, but it cannot be applied to the affairs of the University or the College, because the Constitution forbids it. The legislative enactments quoted by my Brother, as giving the State administrative board the right to intervene in the affairs of State institutions and direct their expenditures, all relate to institutions over which the legislature has control. The Agricultural College and the University of Michigan are constitutionally immune from such legislation. The legislature has no control over them.
The court then addressed itself to determining the effect of holding the condition unconstitutional. Should it result in nullifying the whole act? Would the legislature have intended to make the appropriation, had it realized its inability to impose the condition of supervision by the State Administrative Board? The conclusion was affirmative on this point. It followed, therefore, that the State Board of Agriculture was entitled to the appropriation, subject only to the valid condition that it be used for the purposes specified. In the course of the argument the auditor-general suggested to the court that only by following the fund into the hands of the State Board of Agriculture could the State Administrative Board compel compliance with the valid condition as to the manner of its expenditure. The language used by the court in responding to this argument is of interest. The court said:
As we have pointed out, when the money appropriated passes into the hands of the State board of agriculture, it becomes college property, and is thereafter under the exclusive control of that board, but must be used for the purpose for which it was granted. The proper method of compelling a compliance with the condition that the money shall be expended for the purpose specified will readily suggest itself to the administrative board and its legal advisor.
The opinion in the State Board of Agriculture case is of extreme significance for two reasons. In the first place, it announces and defines a doctrine of "unconstitutional conditions" as applied to conditions precedent attached by the legislature to University and Michigan State College appropriations. In the second place, the court reiterates the language of some of the earlier opinions with reference to the "property" aspect of appropriations made to the University and to the college. Once appropriations are made and the appropriation measures are signed by the governor, the sums of money so appropriated become the "property" of the University or of the college, subject to disposal by their respective governing boards. As heretofore intimated, this property concept has an important bearing upon the validity of certain recent acts of the legislature conferring upon the governor the power to reduce appropriations when he finds it necessary to do so in order to balance the state budget (see p. 125). Section 1 of Act No. 257 of the Public Acts of 1935 provides: "If the total appropriations made by the legislature for any fiscal year exceed the total revenues available for such fiscal year, the governor is hereby authorized to reduce, pro rata, all appropriations made for such fiscal year." Greater authority, along with wider discretionary powers, were later granted, as follows: "The governor is hereby authorized and directed to make such reductions in allotments as he deems necessary to keep the total Page 132expenditures for any fiscal year within the total revenues available for such fiscal year" (P.A., 1937, No. 255).
Certain other decisions of the Michigan Supreme Court involving the Michigan State College are useful in still further elaborating the interpretation to be placed upon the general-supervision clause concerning the University in the constitution. These decisions are Bauer v. State Board of Agriculture (164 Mich. 415 ), State Board of Agriculture v. Auditor General (180 Mich. 349 ), and Alger v. Michigan Agricultural College (181 Mich. 559 ).
The foregoing decisions and opinions of the Michigan Supreme Court, although they may seem very liberal in defining a constitutional position for the University which is independent of changing political pressures, must not be construed as creating anything akin to a state within the state, or as giving to the University (and to Michigan State College) an unwise or ill-conceived freedom from the general government in all matters.
It is easy to overestimate the independence of constitutional institutions, and this is sometimes done by careful authorities. For example, in Township of City of Dubuque v. City of Dubuque, the Supreme Court of Iowa has called a constitutionally established state board of education a "fourth power of government" (7 Iowa 262 ). Again, Alexander Brody (p. 186) has stated: "It might indeed be said that in Michigan there has been added to the American traditional theory of tripartite government, a fourth, namely, the university." Although picturesque perhaps, such statements are far from accurate. Many offices, bureaus, commissions, and institutions are established by our forty-eight state constitutions. Certainly not all are to be glorified as separate branches of government. They are simply constitutional agencies created to perform specified tasks and given certain limited powers, rights, and duties by constitutional provision. Except as to those special powers, rights, and duties they are as fully subject to the conventional three branches of government as are statutory state institutions or agencies:
While it is true that the Regents of the University of Michigan, more commonly called "the Board of Regents," is a separate entity, independent of the state as to the management and control of the University and its property, it is, nevertheless, a department of the state government created by the constitution to perform state functions.
(People ex rel. Board of Regents v. Brooks, 224 Mich. 45 .)
It has never been questioned, for example, that the University is subject to the state's general police powers, and, therefore, to all laws adopted by the legislature designed for the protection and promotion of public health, morals, safety, and general welfare — for example, the Teachers' Oath Law (P.A., 1935, No. 23), or the state law requiring registration and supervision of laboratories (Op. Atty. Gen., 1927-28, p. 467). (There are no Supreme Court decisions dealing specifically with this phase of University relations to the state.) Furthermore, the University is subject to the state's taxing power and its power to levy special assessments, although the legislature has wisely provided specific exemptions relieving the University, along with all other state property, from such burdens, except as to special assessments on property not actually used for governmental purposes (P.A., 1893, No. 206; Auditor General v. Mackinnon Bailer and Machine Co., 199 Mich. 489 ).
In other words, except as to the supervision, management, and control of University property, funds, and functions, the Board of Regents is, quite properly, as much a part of the state Page 133and subject to regulation by the legislature as is any other state institution or board.
Several other states have seen fit to follow the example of Michigan to a greater or less extent and to set up their universities as quasi-independent constitutional agencies. This is the case in California (1879), Minnesota (1858), Idaho (1889), and Oklahoma (1907). In still other states one finds constitutional provisions dealing with the respective state universities in a more limited way. For example, in some state constitutions there are provisions fixing the terms of office of the regents and providing the manner of their selection. In certain other constitutions "government" or "control" of the university is left to the regents, but the legislature is given the power to determine and regulate the "functions" to be performed. The line of demarcation between the power of the regents and that of the legislature often becomes rather shadowy under such distinctions. (For an excellent discussion of the divergent provisions in the several states, see Brody, Chaps. VIII-X.)
Attorney general's opinions concerning the constitutional status of the University. — From time to time, and especially since the decisions in the Weinberg and Sterling cases (see pp. 123 and 125), the attorney general of the state, in his capacity as chief law officer, has been requested to pass upon questions concerning the constitutional status of the University. These questions have ordinarily arisen in connection with statutes adopted by the legislature for the purpose of regulating the internal management of the several state departments, boards, and institutions. The statutes have usually been couched in general form, i.e., without specific mention of the University, and the question has been presented as to whether or not, in view of the constitutional provisions, they could be deemed applicable to the University.
In responding to such inquiries the attorney general has in substantial measure assisted in the interpretation of the constitutional clauses and in the definition of the University's constitutional status. The most important of his opinions have dealt with the following matters:
One of the earliest opinions concerned Act No. 206 of the Public Acts of 1881, as amended, and it was held that the act was not applicable to the University. This act provided:
Before any board of any charitable, penal, educational, or reformatory institution shall determine upon the plan of any building which has been authorized by the legislature to be constructed, such plan shall be submitted to the State Board of Corrections and Charities and the State Board of Health for examination and opinion thereon, and no money shall be paid out of the State Treasury for the execution of any such plan or system until the Board of Corrections and Charities shall file with the Auditor General a written opinion that the proposed plan is of such character that the construction may be fully completed in accordance therewith at an expense within the amount appropriated therefor.
The attorney general was of the opinion that, since the constitution places the "general supervision of the University and the direction and control of expenditures from University funds" in the hands of the Board of Regents, building appropriations might be expended under the exclusive direction of the Board without reference to and approval by any other state agency (Op. Atty. Gen., 1898, p. 88).
To similar effect it has been held that the building of the tuberculosis unit by the University could not be subjected by statute to the supervisory control of the State Tuberculosis Sanitorium Commission Page 134(P.A., 1929, No. 15; Op. Atty. Gen., 1930-32, p. 25).
The attorney general has also ruled that the provisions of the statutes purporting to fix the fees to be charged by the University are invalid, and that the Board of Regents may fix such fees as it deems wise (Op. Atty. Gen., 1901, p. 87; C.L., 1929, sec. 7775). A similar opinion has been rendered concerning the legislative power to fix University entrance requirements (Op. Atty. Gen., 1911, p. 215). In California, where the board of regents is also a quasi-independent constitutional corporation, similar questions have arisen in the cases of Williams v. Wheeler (23 Calif. App. 619 ) and Wallace v. Regents of the University (75 Calif. App. 274 ), and the courts have held that the legislature may not interfere in the matter of admission requirements.
The constitutional independence of the University has also resulted in similar opinions of the attorneys general on a wide variety of subjects of less substantial importance. A statute requiring "each department, institution, board, commission, and office in the state government" to submit its report to the Board of State Auditors for revision, has been held to have no application to the University (P.A., 1919, No. 120; Op. Atty. Gen., 1920, p. 106). A general act requiring bonds from contractors for faithful performance of the contract and protection of material men is inapplicable (P.A., 1905, No. 187; Op. Atty. Gen., 1921-22, p. 289). A general contributory insurance-fund act purporting to cover all state property is not applicable (P.A., 1913, No. 388; Op. Atty. Gen., 1925-26, p. 13). An act providing for registration with the Michigan State Board of Health of all laboratories where live pathogenic germs are handled does not apply to University laboratories so long as the germs are used only for the educational and hospital needs of the University and are not sold commercially (P.A., 1927, No. 308; Op. Atty. Gen., 1927-28, p. 467). The Veterans' Preference Act is not applicable (P.A., 1931, No. 67; Op. Atty. Gen., 1930-32, p. 475). An act requiring all past-due accounts of state departments or institutions to be forwarded to the collection division of the Department of the Attorney General for handling by that department does not include accounts owing to the University (P.A., 1927, No. 201; Op. Atty. Gen., 1927). A general act requiring annual inventories of state-owned property has no application to the University (C.L., 1915, sec. 1938; Op. Atty. Gen., 1922). Finally, in the most recent opinion of importance, it has been held that the State Civil Service Act, though it purports to include University employees, cannot constitutionally be given application (P.A., 1937, No. 346; Op. Atty. Gen., 1937, p. 129).
All of these and other similar opinions of the attorney general have served to give detail and definition to the broad language: "The Board of Regents shall have general supervision of the University and the direction and control of all expenditures from the University funds." They fill in the gaps left by the less frequently occurring Supreme Court decisions concerning the constitutional status of the University.
Legislative acceptance of the constitutional position of the University. — The vitality of the constitutional principles concerning the University and the recognition of the basic good sense underlying them have manifested themselves again and again in the state legislature by the specific exclusion of the University from the operation of general statutes. For example, the State Budget Act applies to "all departments, institutions, boards, commissions, and offices of the state government except Page 135the university of Michigan and the Michigan state college of agriculture and applied science" (P.A., 1919, No. 98, as amended by P.A., 1933, No. 187). Again, by the terms of the State Purchasing Act:
All supplies, merchandise, and articles of every description and character, including building materials, necessary for the maintenance, extension or operation of all state penal, reformatory, charitable, and educational institutions, except the University of Michigan and the Michigan Agricultural College, shall hereafter be acquired and purchased [through the State Purchasing Agent], … Provided further that if at any time the University of Michigan or the Michigan State College of Agriculture should desire to join with the state institutions in making purchases under the provisions of the act [it or they may do so].
(P.A., 1919, No. 282.)
A further illustration of legislation recognizing the University's constitutional status is found in the State Trunk-Line Highway Act, which authorizes the state highway commissioner to lay out and establish trunk-line highways upon or through state parks or other state property, provided "that no such trunk line highway … shall be laid out … on any property owned by the Michigan State Board of Agriculture or the Regents of the University of Michigan" unless approved by two-thirds or more of the members of the governing board concerned (P.A., 1929, No. 77).
In a word, the quasi-independent constitutional status of the University has become generally accepted, not only by the courts and law officers of the state but also by the legislature as well, as a vital feature of the program of higher education in Michigan. It is an invaluable part of the fundamental law and of the tradition of the state.
Conclusions. — One should never be dogmatic regarding the principles of constitutional law. Especially is this true at the present time, when the bulk of our basic legal philosophy is in a state of flux, and as a consequence thereof many formerly accepted constitutional principles are being modified, amended, or rejected. It can safely be said, however, that, regardless of change in details, the spirit and main objectives of our constitutional structure are being preserved today as conscientiously as they have been in the past. With this thought in mind it is not especially difficult for one to draw conclusions concerning the present constitutional status of the University of Michigan.
Such conclusions should be predicated not only upon the literal meaning of the language of the constitutional provisions concerning the University, but also upon the background of history, beginning with the Ordinance of 1785, the motives inducing the people of the state to write the provisions into the fundamental law eighty-eight years ago, and their action in preserving them in full vitality ever since. Due account must also be taken of the considered interpretations of the constitutional language from time to time by the Supreme Court and the attorney general. In the light of these considerations the following observations are warranted concerning the present constitutional status of the University.
- 1. To the end that higher education may be maintained and encouraged in Michigan, the state legislature is under at least a moral, although perhaps not a specific legal, obligation to provide for the financial support of the University to such extent as may be consistent with the other needs and revenues of the state.
- 2. To the end that the University may develop according to a continuing policy free from the changing influences of politics, the "general supervision of the University and the direction and control of all expenditures from University Page 136funds" is lodged in the Board of Regents elected directly by the people of the state for long and staggered terms, and the words "general supervision" are to be construed liberally to include plenary power over all of the internal management and affairs of the University.
- 3. The University is subject to general legislation of the state having to do with the public health, safety, morals, or general welfare. The constitutional power of the legislature over these fundamental matters must of necessity be paramount.
- 4. Legislative appropriations become the "property" of the University as soon as the appropriation acts become effective. It is perhaps questionable just what attributes of property in the strict legal sense should be deemed to attach to such appropriations, but it is clear that once an appropriation is made it cannot thereafter be subjected to any change by state administrative officers. It is possible that even the state legislature itself cannot constitutionally subject the appropriation to change except, of course, by repeal of the appropriation act to take effect prospectively at the beginning of the succeeding fiscal year.
- 5. The legislature may attach conditions to appropriations for the support of the University, and, if the conditions are constitutional, they must be complied with by the University before the funds may be received.
- 6. However, conditions attached to appropriation acts will be deemed unconstitutional and invalid if, by their effect, they take from the Board of Regents any substantial part of the Board's discretionary power over the operation or educational policies of the University.
Under the favorable influence of the foregoing constitutional principles the University of Michigan has attained a commanding position among the state universities of the country. In no small measure may the present position of the institution be attributed to the wisdom and foresight of those who conceived the general policies of the ordinances of 1785 and 1787 and of those who translated those policies into the specific constitutional provisions of 1850 and 1908.
Mill-tax acts. — The various mill-tax acts of the state of Michigan are as follows:
- Laws, 1867, No. 59, p. 86: 1/20 of a mill.
- Laws, 1869, No. 14, p. 19: $15,000.
- Laws, 1873, No. 32, p. 32: 1/20 of a mill.
- P.A., 1893, No. 19, p. 19: 1/6 of a mill.
- P.A., 1893, No. 53, p. 56: 1/6 of a mill.
- P.A., 1899, No. 102, p. 146: 1/4 of a mill.
- P.A., 1907, No. 303, p. 398: 3/8 of a mill.
- P.A., 1921, No. 247, p. 461: 6/10 of a mill.
- P.A., 1923, No. 252, p. 400: 6/10 of a mill; not to exceed $3,000,000.
- P.A., 1925, No. 314, p. 476: 6/10 of a mill; total not to exceed $3,700,000.
- P.A., 1927, No. 404, p. 953: 6/10 of a mill.
- P.A., 1931, No. 319, p. 545: 6/10 of a mill; total not to exceed $4,928,852.55.
- P.A., 1935, No. 11, p. 23: repeal of act of 1873.
- P.A., 1935, No. 112, p. 180: appropriation of a sum equal to 73/100 of a mill.
- P.A., 1937, No. 147, p. 230: appropriation of a sum equal to 83/100 of a mill but not to exceed $4,673,253.58.
School and University provisions in the Constitution of 1835. — The full text of sections 2 and 5 of Article X of the Constitution of 1835 is as follows:
Perpetual fund for support of schools. 2. The legislature shall encourage, by all suitable means, the promotion of intellectual, scientifical and agricultural improvement. The proceeds of all lands that have been or hereafter may be granted by the United States to this state, for the support of schools, which shall hereafter be sold or disposed of, shall be and remain a perpetual fund; the interest of which, together with the rents of all such unsold lands, shall be inviolably appropriated to the support of schools throughout the state.…
University fund. 5. The legislature shall take measures for the protection, improvement or other disposition of such lands as have been or may hereafter be reserved or granted by the United States to this state for the support of a university; and the funds accruing from the rents or sale of such lands, or from any other source for the purpose aforesaid, shall be and remain a permanent fund for the support of said university, with such branches as the public convenience may hereafter demand for the promotion of literature, the arts and sciences, and as may be authorized by the terms of such grant; and it shall be the duty of the legislature, as soon as may be, to provide effectual means for the improvement and permanent security of the funds of said university.
University provisions in the Constitution of 1850. — As amended in 1862, the full text of the provisions of the Constitution of 1850 relating to the University is as follows:
School fund. Sec. 2. The proceeds from the sales of all lands that have been or hereafter may be granted by the United States to the state for educational purposes, and the proceeds of all lands or other property given by individuals or appropriated by the state for like purposes, shall be and remain a perpetual fund, the interest and income of which, together with the rents of all such lands as may remain unsold, shall be inviolably appropriated and annually applied to the specific objects of the original gift, grant, or appropriation.…
Regents of university; election. Sec. 6. There shall be elected in the year eighteen hundred and sixty-three, at the time of the election of a justice of the supreme court, eight regents of the university, two of whom shall hold their office for two years, two for four years, two for six years, and two for eight years. They shall enter upon the duties of their office on the first of January next succeeding their election. At every regular election of a justice of the supreme court thereafter there shall be elected two regents whose term of office shall be eight years. When a vacancy shall occur in the office of regent, it shall be filled by appointment of the governor. The regents thus elected shall constitute the board of regents of the University of Michigan.
Same; body corporate. Sec. 7. The regents of the university and their successors in office shall continue to constitute the body corporate, known by the name and title of "The Regents of the University of Michigan."
President of university; supervision by regents. Sec. 8. The regents of the university shall, at their first annual meeting, or as soon thereafter as may be, elect a president of the university, who shall be ex officio a member of their board, with the privilege of speaking but not of voting. He shall preside at the meetings of the regents and be the principal executive officer of the university. The board of regents shall have the general supervision of the university, and the direction and control of all expenditures from the university interest fund.…
Agricultural school; appropriation; transfer to university. Sec. 11. The legislature shall encourage the promotion of intellectual, scientific and agricultural improvement; and shall, as soon as practicable, provide for the establishment of an agricultural school. The legislature may appropriate the twenty-two sections of salt spring lands now unappropriated, or the money arising from the sale of the same, where such lands have been already sold, and any land which may hereafter be granted or appropriated for such purpose for the support and maintenance of such school, and may make the same a branch of the university, for instruction in agriculture and the natural sciences connected therewith, and place the same under the supervision of the regents of the university.
University provisions in the Constitution of 1908. — The full text of the provisions of the Constitution of 1908 which relate to the University is as follows:
Encouragement of education. Section 1. Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.
Regents of university; election, term, vacancy. Sec. 3. There shall be a board of regents of the university, consisting of eight members, who shall hold the office for eight years. There shall be elected at each regular biennial spring election two members of such board. When a vacancy shall occur in the office of the regent it shall be filled by appointment of the governor.
Same; name. Sec. 4. The regents of the university and their successors in office shall continue to constitute the body corporate known as "The Regents of the University of Michigan."
University; president; supervision. Sec. 5. The regents of the university shall, as often as necessary, elect a president of the university. The president of the university and the superintendent of public instruction shall be ex officio members of the board of regents, with the privilege of speaking but not of voting. The president shall preside at the meetings of the board and be the principal executive officer of the university. The board of regents shall have the general supervision of the university and the direction and control of all expenditures from the university funds.
Educational institutions; maintenance. Sec. 10. The legislature shall maintain the university, the college of mines, the state agricultural college, the state normal college and such state normal schools and other educational institutions as may be established by law.
Proceeds of school land. Sec. 11. The proceeds from the sales of all lands that have been or hereafter may be granted by the United States to the state for educational purposes and the proceeds of all lands or other property given by individuals or appropriated by the state for like purposes shall be and remain a perpetual fund, the interest and income of which, together with the rents of all such lands as may remain unsold, shall be inviolably appropriated and annually applied to the specific objects of the original gift, grant or appropriation.
Regents of university; power of eminent domain. Sec. 4. The regents of the university of Michigan shall have power to take private property for the use of the university in the manner prescribed by law.
Mill-tax Act of 1899. — Act No. 102 of the Public Acts of 1899 involved in this case contained but one section, reading as follows:
Section 1. There shall be assessed upon the taxable property of the State as fixed by the State board of equalization, in the year 1899 and in each year thereafter, for the use and maintenance of the University of Michigan, the sum of one-fourth of a mill on each dollar of said taxable property to be assessed and paid into the State treasury of the State in like manner as other State taxes are by law levied, assessed and paid; which tax, when collected, shall be paid by the State treasurer to the board of regents of the University in like manner as the interest on the university fund is paid to the treasurer of said board; and the regents of the University shall make an annual report to the governor of the State of all the receipts and expenditures of the University: Provided, that the board of regents shall not authorize the building or the commencement of any additional building or buildings or other extraordinary repairs until the accumulation of savings from this fund shall be sufficient to complete such building or other extraordinary expense. Also provided, that the board of regents of the University shall maintain at all times a sufficient corps of instructors in all the departments of said University as at present constituted, shall afford proper means and facilities for instruction and graduation in each department of said University, and shall make a fair and equitable division of the funds provided for the support of the University in accord with the wants and needs of said departments as they shall become apparent; said departments being known as the departments of literature, science and art, department of medicine and surgery, department of law, Page 139school of pharmacy, homeopathic medical college and the department of dental surgery. Should the board of regents fail to maintain any of said departments herein provided, then at such time shall only one-twentieth of a mill be so assessed: Provided, further, that the State treasurer be and is hereby authorized and directed to pay to the regents of the University, in the year 1899 and each year thereafter, in such manner as is now provided by law, upon the warrant of the auditor general, the amount of the mill tax provided for by this act; and that the State treasury be reimbursed out of the taxes annually received from said mill tax when collected; and said auditor general shall issue his warrants therefor as in the case of special appropriations.
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