People ex Rel. Tinkoof v. Northwestern Univ

Full title: People of State of Illinois ex rel. Paysoff Tinkoff, Appellants, v…

Court: Appellate Court of Illinois

Date published: Dec 10, 1947

333 Ill. App. 224 (Ill. App. Ct. 1947)

77 N.E.2d 345

Opinion

Gen. No. 44,077.

Opinion filed December 10, 1947. Rehearing denied February 19, 1948. Released for publication February 19, 1948.

1. PLEADING, § 252^_ — proper denial of motion, after judgment, for leave to amend petition. Court properly denied plaintiffs' motion, after judgment of dismissal, for leave to amend their petition in mandamus by adding additional count, where amendment was not for purpose of conforming petition to evidence (Ill. Rev. Stat. 1945, ch. 110, par. 170, subpars. 1, 3; Jones Ill. Stats. Ann. 104.046, subpars. 1, 3).

_ See Callaghan's Illinois Digest, same topic and section number.

2. PLEADING, § 174^fn_ — effect of motion to dismiss. Motion to dismiss admits facts well pleaded in petition.

3. COLLEGES AND UNIVERSITIES, § 1^fn_ — nature of Northwestern University and its charter. Northwestern University is private charitable corporation, and its charter is a contract.

4. SCHOOLS AND EDUCATION, § 1^fn_ — proper subject of legislation. Education is object of national concern and proper subject of legislation.

5. COLLEGES AND UNIVERSITIES, § 2^fn_ — consideration for grant of charter. Grant of charter by State to private educational institution is given in consideration of benefits public shall receive through education of youth.

6. COLLEGES AND UNIVERSITIES, § 2^fn_ — nature of charter. University's charter, granted by State, is contract whose obligations cannot be impaired by law, and legislature has only such power over chartered institution as was reserved in contract.

7. COLLEGES AND UNIVERSITIES, § 5^fn_ — legislative control as to admissions at Northwestern University. There was no power reserved by legislature of Illinois with respect to admission of students at Northwestern University.

8. COLLEGES AND UNIVERSITIES, § 1^fn_ — corporations affected with public interest. To say that Northwestern University, though private corporation, is affected with public interest is to beg the question of right of State control; those corporations are affected with public interest which are amenable to State supervision.

9. COLLEGES AND UNIVERSITIES, § 1^fn_ — public control. Court will not say that private educational institution is in business essentially public in its nature rendering corporation so engaged subject to public control.

10. COLLEGES AND UNIVERSITIES, § 5^fn_ — availability of benefits. Obviously charter of Northwestern University cannot secure to all, who have sufficient preliminary advancement, benefit of the University, as line must be drawn somewhere if there are more qualified applicants than can be accommodated.

11. COLLEGES AND UNIVERSITIES, § 5^fn_ — discretion as to admission. Applicant for admission to Northwestern University had no right to be admitted, as his admission rested solely in discretion of University.

12. COLLEGES AND UNIVERSITIES, § 10^fn_ — allegation in mandamus to compel admission. In mandamus proceeding to compel applicant's admission to Northwestern University, allegation that he was denied admission contrary to "understanding" added nothing to force of petition, even if allegation were properly made.

13. COLLEGES AND UNIVERSITIES, § 5^fn_ — compulsion with respect to admissions. Only compulsion arising out of Northwestern University's charter with respect to admissions is that no particular religious faith shall be required of those who become students.

14. COLLEGES AND UNIVERSITIES, § 2^fn_ — interference by legislature or courts. State through legislature has no power to take from or interfere with power of trustees of Northwestern University to make such rules as are necessary to conduct University's business, nor has State through its courts such power.

15. COLLEGES AND UNIVERSITIES, § 5^fn_ — reservation of right to reject application for admission. In mandamus to compel Northwestern University to allow and admit registration of petitioner, bulletins, reserving right to reject any application for any reason considered adequate, were within University's power to promulgate, and it was not required to give reason for denying admission.

16. COLLEGES AND UNIVERSITIES, § 1^fn_ — judicial coercion of lawful discretion. Courts have refused to coerce private educational institutions in exercise of lawful discretion.

17. COLLEGES AND UNIVERSITIES, § 1^fn_ — public and private schools. In case involving right of admission to Northwestern University, held that since public schools belong to public and private schools do not, students stand in different position as to each class of school.

18. COLLEGES AND UNIVERSITIES, § 1^fn_ — visitorial power of State. State of Illinois does not have visitorial power at Northwestern University.

19. COLLEGES AND UNIVERSITIES, § 5^fn_ — right of applicant to contract for and pursue education. Applicant for admission to Northwestern University has no right to contract with University, as his right to contract for and pursue education is limited by right which University has under its charter.

20. COLLEGES AND UNIVERSITIES, § 5^fn_ — applicant's contention that rules and regulations were offer of contract. Contention of applicant for admission to Northwestern University that latter's rules and regulations were offer of contract and his compliance therewith and acceptance thereof gave rise to binding contract was without merit, as wording of University's bulletin required further action by University in admitting applicant before contract between them would arise.

21. COLLEGES AND UNIVERSITIES, § 5^fn_ — status of applicant on trust principle. Applicant for admission to Northwestern University had no right based upon trust relationship with University and did not become beneficiary upon compliance with entrance requirements, but he remained, at most, a potential beneficiary until actually admitted.

22. COLLEGES AND UNIVERSITIES, § 5^fn_ — limitation upon father's right to supervise and guide education of child. Northwestern University's denial of admission to applicant was not violation of right of applicant's father to supervise and guide education of his child, since such right as he had in this respect was limited by University's right to full lawful exercise of its charter powers without interference from State through legislature or courts.

23. COLLEGES AND UNIVERSITIES, § 10^fn_ — mandamus to compel admission. In mandamus to compel Northwestern University to allow and admit registration of petitioner as freshman in College of Liberal Arts, complaint showed no clear right to writ sought and University's motion to dismiss was properly sustained.

Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. JOHN PRYSTALSKI, Judge, presiding. Heard in the third division of this court for the first district at the February term, 1947. Judgment affirmed. Opinion filed December 10, 1947. Rehearing denied February 19, 1948. Released for publication February 19, 1948.

PAYSOFF TINKOFF and PAYSOFF TINKOFF, JR., pro se. SIDLEY, AUSTIN, BURGESS HARPER, of Chicago, for appellees; JAMES F. OATES, JR., RALPH K. BALL, HOWARD P. ROBINSON and MARY V. NEFF, all of Chicago, of counsel.

MR. JUSTICE KILEY delivered the opinion of the court.

This is a mandamus action seeking to compel defendants "to allow and to admit" the registration of Paysoff Tinkoff, Jr., as a freshman in the College of Liberal Arts of Northwestern University. Defendants' motion to dismiss was sustained and the suit dismissed. Plaintiffs appealed from the judgment of dismissal to the Supreme Court. The cause was transferred to this court because a constitutional question was not involved. ( 396 Ill. 233.)

After judgment and within thirty days plaintiffs made a motion for leave to amend their petition by adding an additional count. The court denied leave on the ground that the amendment was not for the purpose of conforming the petition to the evidence. The Civil Practice Act provides, in section 46 (1), for amendment before final judgment; and in section 46 (3) [Ill. Rev. Stats. 1945, ch. 110, par. 170, subpars. (1) and (3); Jones Ill. Stats. Ann. 104.046, subpars. (1) and (3)] for amendment "at any time, before or after judgment to conform the pleadings to the proof." The court ruled properly on the proposed amendment. ( McGlaughlin v. Pickerel, 381 Ill. 574.)

The motion to dismiss admitted the facts well pleaded in the petition. The question is whether on those facts the trial court properly decided, as a matter of law, that the petition was substantially insufficient in that it failed to show a clear legal right to a writ of mandamus against the defendants.

Tinkoff, Jr. was born in November 1929; he was graduated, and received a diploma, from Senn High School, Chicago, in February 1945. The previous September he applied formally for admission to Northwestern University's College of Liberal Arts, and took and passed the requisite entrance, examination. He was denied admission on the ground that, being fourteen years of age, he was too young for enrollment. At the time the certificate of his thirty-six high school credits and a letter from his father had not reached the University. Thirty-six credits met the entrance requirement of the University.

Following denial by the University, Tinkoff, Jr. filed a mandamus action in the Superior Court, seeking to compel his admission. The proceeding was dismissed "with the understanding" that he would be permitted to register at the September term of 1945. Meanwhile, during the school year of 1944-45, he was enrolled in the University evening Commerce course, where he completed fourteen hours of work. In June of 1945 he was denied admission to the Commerce School summer course at the Evanston Campus. In September of 1945 he was again denied admission to the College of Liberal Arts. He was denied admission in these instances because he had filed the previous mandamus action in the Superior Court.

The grounds of the motion to dismiss were that no showing was made of a right in Tinkoff, Jr. to admission and no duty on the part of the University to admit him, and that the petition sought to join a mandamus action with an equitable action.

Plaintiff contends that the University is a private corporation affected with a public interest; that its charter was granted for the great public purpose of education of youth, and because of that purpose its property is exempted from taxation; that there was an implied condition and understanding in the grant, that the University would perform its functions for the "common good of the public at large, and not for the benefit of a favored few"; and that Tinkoff, Jr. had the right of admission since he met the entrance requirements.

The charter of the University was granted January 2, 1851. It was amended in 1855, 1861 and 1867. The amendments are not important to this case. The charter provides that the trustees shall have power "to make and alter from time to time such by-laws as they may deem necessary for the government of said institution, its officers and servants; provided such bylaws are not inconsistent with the constitution and laws of this State and of the United States." It further provides that they shall have power to confer "on such persons as may be considered worthy" degrees such as are usually conferred by similar institutions. It provides that the University's property should be held for educational purposes and not for the private benefit of trustees or contributors to the endowment. Power of visitation was lodged by the grant in appointees of the Methodist Episcopal Church.

There is no provision in the charter with respect to admissions. Section 8 authorizes appointment of a board to examine applicants for diplomas. Section 9 provides for legal proceedings to forfeit the charter for any act contrary to the grant. Finally there is a provision that the charter should be construed liberally "in all courts" to aid the attainment of the purposes of the University.

The University is a private charitable corporation ( Parks v. Northwestern University, 218 Ill. 381), and its charter is a contract ( Dartmouth College v. Woodward, 17 U.S. 517). The Dartmouth College case is authority for the following principles: That education is an object of national concern and a proper subject of legislation; that the grant of a charter by a State to a private educational institution is given in consideration of the benefits the public shall receive through the education of the youth; that the charter is a contract whose obligations cannot be impaired by law; and that the legislature has only such power over the chartered institution as was reserved in the contract. There was no power reserved by the legislature of Illinois with respect to the admission of students at Northwestern University.

To say that the University though a private corporation is affected with a public interest is to beg the question. Those corporations are affected with a public interest which are amenable to State supervision ( Triner Corp. v. McNeil, 363 Ill. 559, 572). We cannot say that a private educational institution is in a business essentially public in its nature rendering the corporation so engaged subject to public control, as a telegraph and telephone company ( Inter-Ocean v. Associated Press, 184 Ill. 438), or a virtually monopolistic warehouse ( Munn v. Illinois, 94 U.S. 113).

In Parks v. Northwestern University it was said that the charter secures to all persons of good moral character who have made sufficient preliminary advancement, the benefits of the University. In that case the court was considering the question of the University's liability in tort. Obviously the charter cannot secure to all who have made sufficient preliminary advancement the benefit of the University. A line must be drawn somewhere if there are more qualified applicants than can be accommodated. The educational facilities of this country have been strained to the utmost by the great number of post-war students. It is a matter of common knowledge that thousands have been turned away from most if not all of the colleges and universities in the United States.

Under its charter the University had the power to adopt whatever rules were necessary in its judgment to the proper attainment of the University's purpose. Its bulletin for the College of Liberal Arts for the years 1943-1945 regulating admissions expressly stated it was not possible to admit all who met the specific entrance requirements. For the years 1945-1946 the bulletin in addition stated that the University reserved the right to reject any application for any reason it considers adequate. Are we to say that it should have admitted Tinkoff, Jr., though the University considered its reason for rejecting him adequate? He had no right to be admitted. His admission rested in the discretion of the University. The allegation that he was denied admission contrary to an "understanding" added nothing to the force of the petition, even if the allegation were properly made. The only compulsion arising out of the University's charter with respect to admissions is that "no particular religious faith shall be required of those who become students." There is no point before us based on breach of this command.

Cases involving legislative control of State universities and schools are not helpful. The State through the legislature has no power to take from or interfere with the power of the trustees of the University to make such rules as are necessary to conduct the University's business. ( Dartmouth College v. Woodward, 17 U.S. 517.) The State through its courts has not the power. There is no provision in the University charter that the rules enacted should be reasonable. The charter provides they shall not be repugnant to the constitution of Illinois nor of the United States. It is our view that the bulletins were within the University's power to promulgate; that the University was not required to give a reason for denying Tinkoff, Jr. admission; and that it could refuse for any reason it considered adequate. Plaintiff says he was excluded because he was under fourteen years of age and because he instituted litigation against the University. He says these are arbitrary denials. The minimum age provision for admission to the University of Illinois is fifteen years. (Ch. 144, par. 29, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 138.022 (8)].) The University may have considered the commencement of the suit an adequate reason for denying Tinkoff, Jr. admission.

Courts have refused to coerce private educational institutions in the exercise of lawful discretion. ( Booker v. Grand Rapids Medical College, 156 Mich. 95, 27 R. C. L. 141, 55 Am. Jur. 11.) Plaintiffs have cited numerous cases to support their contention that regulations for admission to educational institutions must be reasonable. These cases involve public schools and are, accordingly, not pertinent. The public schools belong to the public. Private schools do not. Students stand in different position as to each class of schools. Compare, People ex rel. Pratt v. Wheaton College, [not tax exempt], 40 Ill. 186, and The State ex rel. Stallard v. White, et al., 82 Ind. 278.

Plaintiffs refer us to Anthony v. Syracuse University, 223 N Y S. 798, where it was held that Syracuse University is a quasi-public institution. The judgment for plaintiff in that case was reversed in 231 N.Y. S. 438. Furthermore, the Regents of the State of New York had visitorial powers at Syracuse University. The State of Illinois has not visitorial power at Northwestern University. Mandamus against the trustees of the University of Illinois, a public corporation ( People v. Barrett, 382 Ill. 321) had been refused on the ground that enactment of the rule — attacked by the petition — involved official discretion ( North v. Trustees of the University of Illinois, 137 Ill. 296).

Plaintiffs complain Tinkoff, Jr. was denied the right to contract as guaranteed by the Illinois and United States constitutions. We need only say that he had no right to contract with the University. His right to contract for and pursue an education is limited by the right which the University has under its charter. We see no merit to plaintiff's contention that the rules and regulations were an offer of contract and his compliance therewith and acceptance giving rise to a binding contract. The wording of the bulletin required further action by the University in admitting Tinkoff, Jr. before a contract between them would arise. (Williston on Contracts, rev. ed., vol. 1, p. 277.) Plaintiff has no right based upon a trust relationship with the University. Tinkoff, Jr. did not become a beneficiary upon compliance with the entrance requirements. We think he remained, at most, a potential beneficiary ( Dartmouth College v. Woodward) until he was actually admitted.

We see no merit to the contention that the University violated the right of Tinkoff, Sr. to supervise and guide the education of his child. What right he had in this respect was likewise limited by the University's right to full lawful exercise of its charter powers without interference from the State through the legislature or courts. [23] In conclusion, we hold that the complaint shows no clear right to the writ sought. ( People v. City of Chicago, 382 Ill. 500, 508.) 34 Am. Jur., p. 829.

Judgment is accordingly affirmed.

Judgment affirmed.

BURKE and LEWE, JJ., concur.