The opinion
Grieein Smith, Chief Justice, dissenting. Today’s prevailing opinion is not restricted to the effect it will have on Little Rock Junior College. In the broader concept of jurisprudence the impact of a decretal order is usually measured by the financial burden it imposes, or gauged by the relief that results when rights are defined.
But infinitely more important to the body of our law is the public’s faith in the system it has selected; its unquestioning confidence in the steps one must take to attain permissive ends. And finally there is the right of every competent person to dedicate to purposes of his preference the accretions of life’s frugality; to apply, as may be desired, the remainder of one’s possessions that have been acquired through the genius of imagination, by dint of ceaseless industry, — and retained because fortune smiled upon thrift at a time when faith was something more than fantasy and when character was not the subject of pressurized remote control.
There are but few men whose fundamental qualities have more profoundly left their imprint than George W. Donaghey, and it is with the increment of his labors that we deal. It is trite to say that he was born in Louisiana .in comparative obscurity. That is true of countless others who have succeeded. Nor is it essential that we emphasize his early struggles, his quest for knowledge, his thirst for information, his willingness to subordinate physical comforts in search of broad horizons in a state where the economic problems were many, yet where mastery over adversity took him to the State University, later into industrial life, then into the Governor’s office, and finally into philanthropy.
Governor Donaghey’s worldly goods that we denominate as property were set aside for a purpose he thoroughly understood. In order that changing conditions might not defeat the general plan this good man entertained his property was conveyed in trust; and the men chosen as instrumentalities of his design were selected because of their integrity and the training they had received in respect of large affairs. In reliance upon the unimpeachable nature of these friends, Governor Donaghey invested them with broad discretion. That he intended they should function without intervention from, without is so clearly reflected by language of the trust that one’s credulity is tested by the mere suggestion that his contemplations could conceivably have been along a different line.
These men were his nominees, empowered to select their successors. In the language he made use of they were to supervise the property. The earnings it produced were to be used “. . . for the sole and exclusive benefit of the present Little Rock Junior College.” To them was given “the sole and exclusive management . . . and direction of said property”; but if events should shape themselves so that the College or its successors should at any time cease to be operated under the■ supervision of the public school authorities of Little Roclt, then some other public school.or schools might be selected. But this power of selection was not given to the Chancery Court, or to the State’s Supreme Court. On the contrary the trustees were authorized to deal with, handle, and manage the corpus and its earnings “as an individual might do,” being guided and limited only— By what? Not by the needs of a particular institution! Not by the desires, necessities, academic vision, progressive ideas, or collective fervor of any well-meaning school board or directors of a corporation; and assuredly not at the instance of planning futurists who in 1947 — ten years after the death of the donor — -were to procure a charter for Junior College as an eleemosynary corporation: a body politic under a statute then appearing as § 2252 of Pope’s Digest — a corporation functioning with its own board- of trustees. The object of this legal entity was to manage, operate, and administer the- school’s affairs.
Thus Little Rock Junior College, as it was known to Governor Donaghey, passed from the management of its then superintending authority (the board of school directors of the special school district of Little Bock) and became an institution functioning through a public charter, amenable to the creating statute, and answerable to the courts. Now, by judicial dispensation, the precise power conferred upon the Donaghey trustees is in effect declared fallacious; and this is done in contradiction of what the deed by express provision grants — that the men selected by Governor Donaghey shall be invested with full discretion to select some other public school or schools in Little Rock operated by or under the management or supervision of the [designated school directors] — this in the event the preset Junior College . . . “should at any time cease to be operated under the supervision of the public school authorities of said city.”
While it is true that the same individuals who constitute the school board are named as members of the Junior College Corporation, yet their duties and obligations are not the same. As members of an elective school board these men and women are amenable to their elecUve duties — duties relating to the entire system as fixed by other laws, and not alone to Junior College. As members of the eleemosynary corporation their duties are to it, and this is true irrespective of any conflict that may exist. But they must serve two masters regardless of divergent interests that may arise.
Now as a matter of common sense we know that directors of the corporation and persons elected to the school board are not conscious of transgression from a common purpose to serve the public school system and Junior College with equal fidelity. Their motives are not challenged. Their patriotic concepts, their tendencies and convictions — these, are not in issue. Perhaps if Governor Donaghey had selected them as trustees instead of those he named they would have discharged their obligations Avith the same conscientious considerations that now actuate them otherwise.
First, trustees personally satisfactory to the former governor were named in the deed he executed.
Secondly, the Avishes of appellants as corporation directors are in conflict with the ideas of prudence entertained by men commissioned by the donor, and the line of demarkation falls far short of being superficial or imaginary.
Thirdly, a Junior College Board (created by order of Pulaski Circuit Court eighteen years after the Foundation was established and a decade after Governor Donaghey died) was entrusted Avith business problems affecting Junior College.
Upon the one hand this court is asked to say whether the discretion conferred by the Foundation’s creator is to be upheld; upon the other, AAdiether directors of a corporation — -directors acting in substitution for the school board particularized by Governor Donaghey— have a right to say to the Foundation trustees:
You are wrong! It is more consistent Avith Governor Donaghey’s wishes that we — not you — chart the course of finance and Foundation dispensation! Let us estimate its possibilities and make our demands upon you; and if our requisitions are not honored the courts ■may be relied upon to say that the Foundation’s trustees have either abused their discretion or misconceived their duty; ergo, the corporation’s board prevails.
When J. F. Loughborough, G. DeMatt Henderson, Alfred G. Kahn, F. W. Neimeyer, Charles L. Thompson, Leo Pfeifer, and Fred W. Allsopp were chosen by Governor Donaghey to execute the trust he so generously conceived (and when he invested them with the power to select successors if through death or resignation vacancies should occur) an abiding faith was thus expressed. Only three of these men survive: Thompson, Kahn, and Pfeifer. From time to time the trustees selected other men, with the result that today the Foundation is entrusted to John Rule, Clyde Lowry, William Nash, and Dr. Henry Hollenberg. These four now serve with the three survivors — Thompson, Kahn, and Pfeifer.
The junior College directors (who, as heretofore noted are members of the school board) are Foster A. Vineyard, Mrs. A. E. McLean, Mrs. Lucy A. Dixon, Dr. .William G. Cooper, Dr. E. N. Barron, and R. A. Lile. No one questions their integrity, their public capabilities, or the sincere interest they have in the subject-matter of litigation. But the fact remains that Governor Donaghey did not select them as trustees, though with equal propriety and confidence he might have done so.
Perhaps no better illustration of the point I undertake to stress can be shown than words employed in the petition of Junior College when it sought a declaratory judgment:
“Petitioner states that action of the [Foundation Trustees] has created grave doubts as to the respective rights, powers, duties, and obligations of the parties hereto under the aforesaid Deed in Trust, and because of the asserted and assumed power of [the] Trustees thereunder, [the] College, as beneficiary, is and will continue to suffer irreparable loss and damage by and through the conflict in authority between the parties hereto until their relative rights, powers, duties, and obligations under said deed in trust are fully and clearly defined by the court.”
Inasmuch as the powers, duties, and obligations of the Foundation Trustees were clearly defined in the deed, and because none of the discretionary power is in contravention of public policy or any law, I would in all respects affirm the Chancellor’s decree, conformably to the many decisions of this court dealing with matters of this kind.