Gray and Cathcart v The Provost, Fellows, and Scholars of Trinity College, Dublin

• Jurisdiction: Ireland
• Judge: Ross, J.,
• Judgment Date: 26 July 1910
• Court: Chancery Division (Ireland)
• Date: 26 July 1910

Gray and Cathcart

and

The Provost, Fellows, and Scholars of Trinity College, Dublin.

Ross, J.,

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

The HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1910.

Corporation — University — Charter — Alteration of — Consent of Corporation — Act of majority of Corporation.

Where the Crown has created a corporation by charter it cannot alter or recall the charter except in three cases: 1. where the Crown has in the original charter (or in a subsequent charter made valid by acceptance) expressly reserved power to alter the charter; 2. where the corporation is wholly or partially moribund; 3. where the corporation consents to the alteration.

The Crown, on a true construction of the Trinity College Charters of Elizabeth and 13 Charles I., has no power, save with the consent of the corporation, to alter the provisions of the Charter and the Constitution of Trinity College, Dublin.

Semble, such consent does not require the consent of all the individuals of the corporation, but only that of the majority.

Whatever can be lawfully done by a corporation can be done by the act of the majority of its members.

The majority of the Corporation of Trinity College, Dublin, proposed to affix the corporate seal of the College to an application to the King for a King's Letter altering the constitution of the corporation without the consent and against the protest of a minority.

Held, that the Court ought not to, and could not, restrain the action of the majority.

Trial of Action.

The action was brought by the plaintiffs, two of the Senior Fellows of Trinity College, Dublin, against the defendants, the Provost, Fellows, and Scholars of the said College, for an injunction restraining them from affixing the corporate seal of the Corporation of Trinity College to, or otherwise adopting, promoting, and forwarding in the name or on behalf of the said Corporation, without the consent and against the protest of the plaintiffs, a proposed King's Letter or Charter, or Letters Patent, whereby the existing Letters Patent, Charters, or Statutes, under which the said Corporation and the Governing Body thereof (commonly called the Board) were now constituted, could be surrendered, repealed, or abrogated, and whereby the Governing Body and the Corporation of the said College would be extinguished, or cease to exist, or be superseded by or be merged in, a new and differently constituted Corporation and Governing Body. Secondly, for an injunction restraining the defendants from accepting, or purporting to accept, any such new or supplemental Charter, Letters Patent, or King's Letter, without the consent and against the protest of the plaintiffs.

The defendants by their defence submitted, inter alia, that a majority of the Provost, Fellows, and Scholars of the said College had power, on behalf of the Corporation, to apply for the proposed King's Letter, and to accept the same or any other King's Letter which His Majesty might be pleased to grant; that the proposed King's Letter did not contain any provision which would prejudice or interfere with any of the privileges or pecuniary or proprietary rights or interests of the plaintiffs in the property or revenue of the Corporation; and that the plaintiffs had not any such privileges or pecuniary or proprietary rights or interests; and that it was not necessary to have the consent of every member of the Corporation, or of every member of the Governing Body, to the application for the proposed King's Letter and to the acceptance of the proposed King's Letter, or of any other King's Letter which His Majesty might be prepared to grant.

The facts, the Charters of Elizabeth and of Charles I., the Statutes of Trinity College, Dublin, and the changes contemplated in the proposed King's Letter sufficiently appear in the judgment of Ross, J.

Matheson, K.C. (with him, G. W. Walker, K.C., and Brunskill), for the plaintiffs:—

In the Charters of Elizabeth and Charles L, no power was reserved to the King to alter anything constituting the Corporation of Trinity College; the only power reserved was the power to make Statutes for the pious and faithful government of the College. A living corporation can only commit suicide by the consent of all the members of the corporation. The Crown cannot force a new charter on a corporation when it has already got a charter. It can only do so if part of the corporation is defunct: The King v. Passmore (1); The King v. Hughes (2); The King v. Vice-Chancellor of Cambridge University (3); The King v. Cutbush (4);

The King v. Miller (5); Mac Cormack v. Queen's University (6); Ward v. The Society of Attorneys (7); Ex parte Society of Attorneys (8).

Ronan, K.C. (with him The Right Hon. J. H. Campbell, K.C., Jellett, K.C., and Darley), for the defendants:—

The Charter does not require the consent of every member of the corporate body. The plaintiffs say they have an absolute veto; they claim the same veto even for the youngest Scholar. The plaintiffs' pecuniary interest can be protected in the King's Letter by a special clause. The only modern analogous case is Mac Cormack'sCase (6). That was a case where the Senate had already passed the Charter, and it could not be altered then. By the Common Law, the act of the majority is the act of the corporation. The defence in the present action raises the question of the locus standi of the plaintiffs. In Mac Cormack'sCase (6) it was decided that the plaintiffs had no locus standi. The usage and course of action under an old document are conclusive as to its meaning.

How does a corporation act? The majority of the individuals of the corporation express the will of the corporation: Blackstone, 15th edition, vol. i., 468; Brooks' Abridgment, 31, 34; Lindley on Companies, vol. i. 435; Comyn's Digest, Title Franchises, 342. The major part may do any corporate act, though nothing be mentioned in the charter: Bacon's Abridgment, ii., 269; The King v. Varlo (9). In Ward v. The Society of Attorneys (7) it a was proposed to take private property and hand it over to a public body. Are the plaintiffs entitled to object to the scheme

when they do not really feel themselves to be pecuniarily affected? Their right to have their pecuniary rights protected does not give them any right to protect other interests. They cannot object to the Charter, qua charter, but only to an infringement of pecuniary rights. This is only an application for a charter. There is no case in the books like it. It would be different if this action were to prevent us accepting a charter. At common law it is an incident to a corporation to use its common seal for the purpose of binding itself to anything to which a natural person could bind himself: Riche v. Ashbury Railway Carriage Co. (1); Baroness Wenloek v. River Dee Co. (2). Has any Court power to restrain any person from applying to the King for anything? The right of the subject to petition the Crown is an express provision of the Bill of Rights. For the first time the Court is now asked to restrain the subject from petitioning the King.

The Right Hon. J. H. Campbell, K.C.:—

1. In every charter granted in respect of an institution which is to have a continuous existence, provision is made in the charter itself as to the body, or persons, in whom the right to alter the charter is vested. In some of the charters the right is conferred on the corporate body itself. Under the original Charter of Elizabeth this power to alter the Charter by statutes was given to the Corporation itself. The Charter of Charles I. expressly revoked that, and reserved the power to the Sovereign and his successors for all time.

2. How does a corporation incorporated by charter act? In all the authorities it is laid down that the corporate act of a common law corporation created by charter required for its validity a majority of the votes of the members of the corporation: Halsbury, “Laws of England,” vol. viii., 316. In Ward'sCase (3) the corporation was stereotyped for all time, and could only act by surrendering and getting a new Charter. The Court prevented that, as the property was vested in each of the members of the corporation. The Court has no jurisdiction to stop the corporation

from asking for a new Charter. The form of the Charter is for the King to decide.

3. As to pecuniary interest, the plaintiffs disclaim asking the Court's protection on the ground of pecuniary interest. How, then, can the Court insist on their pecuniary interest? The...