OPINION OF THE SUPREME COURT OF TENNESSEE 
 IN THE VANDERBILT UNIVERSITY CASE. 
 
 Rendered March 21, 1914. 
 
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 UNIVERSITY OF ILLINOIS LIBRARY 
 
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 NOV 2 4 1916 
 
 OPINION OF THE SUPREME COURT OF TENNESSEE 
 IN THE VANDERBILT UNIVERSITY CASE. 
 
 Delivered by Special Judge W. R. Turner on March 21, 1914, all of the 
 
 Justices Concurring. 
 
 CThe headings are not a part of the Opinion of the Court.) 
 
 STATE OF TENNESSEE EX EEL. BISHOPS OF 
 THE METHODIST EPISCOPAL OHUEOH, SOUTH 
 
 FROM THE 
 CHANCERY COURT 
 OF DAVIDSON COUNTY 
 
 BOAKD OF TEUST OF VANDEEBILT 
 UNIYEESITY ET AL. 
 
 PURPOSE OF THE SUIT 
 
 The bill in this case was filed by the State on the relation of the 
 College of Bishops of the Methodist Episcopal Church, South, and 
 three gentlemen who had been selected by the General Conference of 
 the church to fill vacancies in the Board of Trust of Vanderbilt Uni¬ 
 versity, against the University as a corporation, and its Board of Trust, 
 and three other gentlemen who had been elected by the Board of Trust 
 to fill the aforesaid vacancies in that board, and seeks to enjoin the 
 board from admitting its own appointees, and to compel it to seat those 
 elected by the General Conference. 
 
 Two answers are filed, one by the majority of the trustees, their 
 appointees, and the University, contesting the bill, and the other by a 
 minority of the trustees, admitting the rights claimed by the complain¬ 
 ants and joining in the prayer of the bill. 
 
— 2 — 
 
 On the hearing in the court below, the Chancellor granted the 
 relief prayed for by the bill, and the University and majority trustees 
 and their appointees have appealed and assigned errors in this court. 
 
 QUESTIONS FOR DETERMINATION 
 
 Two questions are involved, to wit: Whether the General Con¬ 
 ference has the right to elect the members of the Board of Trust, 
 and whether the College of Bishops has visitorial power over the Uni¬ 
 versity, and the right to veto the action of its Board of Trust. 
 
 STATEMENT OF FACTS 
 
 The pleadings and proofs are very voluminous. On the hearing 
 below, exceptions were taken to much of the evidence as hearsay, ir¬ 
 relevant, and immaterial. The Chancellor overruled the exceptions, 
 and admitted all the evidence. The objection is not preserved, or 
 made in this court, and hence the whole proof is before us for what 
 it is worth. A large part of it is immaterial to the real issues in the 
 cause. 
 
 The essential facts, appearing in the pleadings and proof, are as 
 follows : 
 
 Memphis Convention 
 
 In the fall of 1871, eight or nine of the annual conferences of 
 the Methodist Episcopal Church, South, appointed committees “to 
 confer” with each other ‘'in reference to the establishment and 
 endowment of a Methodist university of high grade and large endow¬ 
 ment,” but, as stated in one of the resolutions appointing such com¬ 
 mittee, “it being understood that said committee shall not have au¬ 
 thority to pledge this conference to any action.” Some of these an¬ 
 nual conferences were incorporated and some not, but all were com¬ 
 posed of the ministers and lay delegates from the churches wdthin 
 certain territory assigned to each, and each had jurisdiction over the 
 churches within the district so assigned. 
 
 Memphis Resolutions 
 
 In January, 1872, the several committees, appointed by these an¬ 
 nual conferences, met at Memphis, were presided over by some of the 
 bishops, and, after conferring and discussing the subject for three 
 days, adopted certain resolutions prepared by Bishop McTyeire, as 
 follows, to-wit: 
 
—3 
 
 '‘Resolved by the convention: i. That measures be adopted look¬ 
 ing to the establishment as speedily as practicable of an institution 
 of learning of the highest order, and upon the surest basis, where the 
 youth of the church and country may prosecute theological, literary, 
 scientific, and professional studies to an extent as great, and in a man¬ 
 ner as thorough, as their wants demand. , 
 
 “2. That the institution shall be called the Central University of the 
 Methodist Episcopal Church, South. 
 
 ^‘3.'That it shall consist, at present, of five schools or departments, 
 viz.: A theological school, for the training of our young preachers, 
 who, on application for admission, shall present a recommendation 
 from a quarterly or annual conference, and shall have obtained a 
 standard of education equal to that required for admission on trial 
 into an annual conference; and instruction to them shall be free, both 
 in the theological and the literary and scientific departments. Second¬ 
 ly, a literary and scientific school. Thirdly, a normal school. Fourth¬ 
 ly, a law school. Fifthly, a medical school. 
 
 “4. That the sum of one million dollars is necessary in order to 
 realize fully the object desired, and not less than five hundred thou¬ 
 sand dollars must be secured as a condition precedent to the opening 
 of any department of the University. 
 
 ^'5. That the location of the University shall be left to the decision 
 of the College of Bishops of the Methodist Episcopal Church, South. 
 
 “ 6 . That the carrying out of this whole scheme is hereby com¬ 
 mitted to the following persons, viz.: William C. Johnson, Robert 
 J. Morgan, Smith W. Moore, Milton Brown, Alexander L. P. Green, 
 Jordan Stokes, David C. Kelley, Edward H. East, Robert A. Young, 
 Landon C. Garland, Philip Tuggle, John M. Steele, Jas. H. McFerrin, 
 Christopher D. Oliver, William Dickson, Edward Wadsworth, Wil¬ 
 liam Byrd, William L. C. Hunnicutt, Thos. Christian, James L. Bor¬ 
 den, William H. Foster, Andrew Hunter, James L. DeYampert, and 
 David T. Reynolds, who shall take immediate steps for securing a 
 suitable charter of incorporation, and shall be a Board of Trust, with 
 power to solicit and invest funds, appoint an agent or agents, and to 
 do whatever else is necessary for the execution of this scheme. 
 
 “y. That seven of the Board of Trustees, at any meeting regularly 
 called, shall constitute a quorum. 
 
 “8. That provision be made in the charter for giving a fair repre¬ 
 sentation in the management of the University to any annual con¬ 
 ference hereafter cooperating with us. 
 
- 4— 
 
 “9- That the Bishops of the Methodist Episcopal Church, South, 
 be, and are hereby, requested to act as a Board of Supervision of the 
 University, or any of its departments, and, jointly with the Board of 
 Trust, to elect officers and professors, and prescribe the course of 
 study and the plan of government.” 
 
 Organization of Board of Trust, January, 1872. 
 
 On the day after the Memphis convention adjourned, this Board 
 of Trust, so designated and appointed, met and organized by electing 
 a president, secretary, treasurer, and executive committee. The lat¬ 
 ter were “requested to prepare a code of by-laws, defining the duties 
 of officers and standing committees, and such other by-laws as may 
 be necessary for the government of the operations of the Board of 
 Trust.” They adjourned to May 8, 1872, at which time they met at 
 Nashville, where the College of Bishops was then in session. They ad¬ 
 dressed to the Bishops the following communication, to-wit: 
 
 Action of Board and Bishops, May, 1872 
 
 “Whereas, The convention left the location of the University to 
 the decision of the College of Bishops of the M. E. Church, South, 
 and also requested the Bishops to act as a Board of Supervisors of 
 the University, or any of its departments, and, jointly with the Board 
 of Trust, to elect officers and professors, and prescribe the course of 
 study and the plan of government. 
 
 '‘Resolved, (i) That the secretary be, and is hereby, directed to ad¬ 
 dress the Bishops with a view of obtaining their acceptance of the 
 foregoing official relation to the University; 
 
 “(2) That the secretary invite the Bishops to attend the present 
 meeting of the Board of Trust.” 
 
 On the next day the Bishops made the following reply (having 
 first voted down a motion to decline the request outright) to-wit: 
 
 "Resolved, (i) That the College of Bishops accede to the request 
 made by the Board of Curators of the contemplated University to 
 locate the institution, whenever the sum of $500,000 shall be pledged 
 for the enterprise. 
 
 “(2) That, by this act, we are not to be understood as implying 
 that the said institution is to be considered connectional to the damage 
 of existing colleges and universities. We can take no official relation 
 to the Central University that will discriminate between it and any 
 and every other institution of the church. Nevertheless, we feel free 
 
5— 
 
 to give our decided approval to the combination of the several An¬ 
 nual Conferences represented in the convention in Memphis, or so 
 many of them as may agree together, acting through their respective 
 bodies, in getting up an institution of the highest grade. 
 
 “(3) That, as the question of theological schools is in a contro¬ 
 versy among our people, we propose no action that may be construed 
 into an expression of our collective opinion on the subject, but it is 
 made a condition of the first resolution that the theological depart¬ 
 ment, to be comprised—with the literary and professional departments 
 of the proposed Central University, be such as is consistent with the 
 action of the General Conference, held in Memphis in 1870, in the 
 words following: 
 
 “ 'Resolved, That we endorse the action of the last General Con¬ 
 ference in reference to Biblical chairs in connection with our existing 
 colleges, as the best available means for training young preachers.’ ” 
 
 To this the Board responded: 
 
 "Resolved, That the terms and conditions upon which the Bishops 
 of the church are willing in due time and proper form to accede to 
 the request made of them by the late educational convention held in 
 Memphis to locate this proposed University are, in the judgment of 
 the Board, sufficient to encourage it in the prosecution of this scheme 
 of education, contemplated by said convention, and as such they are 
 hereby accepted and will be observed in good faith by this Board.’’ 
 
 Original Charter Proceedings, June-August, 1872 - 
 
 On June 29, 1872, the individuals named by the Memphis conven¬ 
 tion as the Board of Trust filed their petition in the Chancery Court 
 at Nashville, praying the court “to incorporate them under the name 
 and style of the Central University of the Methodist Episcopal Church, 
 South, for the purpose of soliciting subscriptions, donations, and for 
 the erection and maintenance of an institution of learning of the highest 
 order, containing all the schools belonging to a university of that 
 character, together with the rights, powers, and privileges which by 
 law may belong to literary institutions chartered by the laws of the 
 State. They pray, to this end, that the required publication may be 
 made and all other necessary and proper steps be taken.” 
 
 Publication was duly made, in accordance with the petition, and as 
 prescribed by law. 
 
 On August 6, 1872, decree was entered on this petition, constitut¬ 
 ing the charter of the University, as follows, to-wit: 
 
- 6 — 
 
 ^‘The Central University of the Methodist Episcopal Church, South. 
 
 Ex parte. 
 
 '‘This matter came on this day to be heard before the Hon. Na¬ 
 thaniel Baxter, Judge, etc., of the Circuit Court of Davidson County, 
 sitting by interchange with the Hon. Edward H. East, the Chancellor 
 presiding, but who was incompetent to preside and hear this cause for 
 the reason that he was interested herein; and the same was heard 
 upon the petition of W.. C. Johnson, Robert J. Morgan, Smith W. 
 Moore and Milton Brown, citizens and residents of the State of 
 Tennessee, and representatives of the Memphis Conference of the 
 Methodist Episcopal Church, South; and Alexander L. P. Green, 
 Jordan Stokes, David C. Kelley, Edward H|. East, David T. Reynolds 
 and Robert A. Young, citizens and residents of Tennessee, and repre¬ 
 sentatives of the Tennessee Conference; and Landon C. Garland, a 
 citizen and resident of Mississippi, and Philip Tuggle, a citizen and 
 resident of Tennessee, the two latter representing the North Missis¬ 
 sippi Conference; and James H. McFerrin and John M. Steele, citi¬ 
 zens of the State of Arkansas, and representatives of the White River 
 Conference; and Christopher D. Oliver and William Dickson, citizen^ 
 of the State of Alabama, and representatives of the North Alabama 
 Conference; and Edward Wadsworth and W. M. Byrd, citizens of 
 the State of Alabama, and representatives of the Alabama Conference; 
 and W. L. C. Hunnicutt and Thomas Christian, citizens of the State 
 of Mississippi, and representatives of the Mississippi Conference; and 
 James L. Borden and William H,. Foster, citizens of the State of 
 Louisiana, and representatives of the Louisiana Conference; and An¬ 
 drew Hunter and J. L. DeYampert, citizens of the State of Arkansas, 
 and representatives of the Little Rock Conference; and it appearing 
 to the court that said persons, in their said petition, prayed to be in¬ 
 corporated under the name and style of the Central University of the 
 Methodist Episcopal Church, South, the object and plan of said Uni¬ 
 versity having been fully set forth in resolutions passed by the dele¬ 
 gates of said conferences, at a convention of the same, held in the 
 City of Memphis on the 24th, 25th, 26th and 27th of January, 1872, 
 and which resolutions are in words and figures as follows 
 
 (Here follow the Memphis resolutions.) 
 
 “And it appearing to the court that, upon the filing of said petition, 
 the Clerk and Master of this court caused, by an order at rules, the 
 same to be advertised, in pursuance of the statutes in such cases made 
 
-7- 
 
 and prescribed; and it further appearing to the court that no one 
 has appeared and made known any objection to the granting of the' 
 prayer of the petition; and the court, upon investigation of the designs 
 and objects of said corporation, finds nothing therein contained to be 
 against public policy or good morals, or in conflict with the Constitu¬ 
 tion and laws of the State or of the United States, is pleased to granf 
 the prayer of the same, and doth hereby order and adjudge and decree 
 that the petitioners be declared a body politic and corporate under the 
 name and style of the Central University of the Methodist Episcopal 
 Church, South, and in that name may sue and be sued, plead and be 
 impleaded, in the courts of this State, or of the other States of the 
 Union, or of the United States of America; may have a common seal, 
 which may be altered at pleasure; shall have perpetual succession ; 
 may solicit and receive subscriptions, donations, legacies and devises; 
 may hold real estate and personal property in such amounts as the 
 business of the corporation requires, and may receive the same by 
 contract, gift, will or devise, and shall hold the same for the pur¬ 
 pose of said incorporation, with all the lawful conditions imposed by 
 the donor; may appoint such subordinate officers and agents as the 
 business of the corporation requires, prescribe their duties and fix their 
 compensation; to make by-laws not inconsistent with the laws of the 
 land, or this charter, or the resolutions of the convention at Memphis, 
 as set out hereinbefore, which resolutions are hereby adopted as a part 
 of this charter, but shall make all by-laws necessary and proper to 
 carry out the object of said resolutions, as well as for the management 
 of its property, and the regulation of its affairs, and may also have 
 power to pass all by-laws necessary to the use of the powers herein 
 given, or which by law may hereafter be conferred; and all said 
 powers, rights and privileges, together with such others as are not here¬ 
 in specially given and referred to, are hereby conferred upon said 
 corporation in as full, complete and ample manner as by the laws of 
 the State the same can or might be; and said corporation shall have 
 the power to confer all the degrees of merit and honor usually con¬ 
 ferred by universities. It is further decreed that petitioners pay the 
 costs of this proceeding and that the Clerk and Master issue them a 
 certified copy of this decree.” 
 
 By-Law No. 2, August, 1872 
 
 On August 22, 1872, at luka. Miss., the Board met, accepted the 
 charter, confirmed the previous election of officers and executive com¬ 
 mittee, and adopted by-laws, one of v/hich was as follows: 
 
 9 
 
— 8 - 
 
 *‘Xo. 2. Since the charter leaves the perpetuity of the Board in its 
 o\sTi power, we request the several Annual Conferences cooperating 
 to nominate at least four representatives from each. So soon as this 
 shall be done, the present Board will reorganize in such manner as to 
 secure the election of trustees so nominated, and that thereafter, when 
 vacancies shall occur, they shall be filled by nominations by the several 
 Annual Conferences, and confirmed by the Board—it being understood 
 that the Board will not be enlarged beyond the first number, except 
 so far as shall be necessaiy* to give four members to each one of the 
 conferences cooperating.” 
 
 They also “Resolved, the executive committee are empowered 
 through such agents as they may employ to adopt such scheme or 
 schemes as thev mav deem best in order to obtain the endowment, 
 with the single reserv'ation that none of the principal shall be used 
 for any purpose other than that originally intended by the donor, and 
 that we advise that interest in all available cases be collected semi¬ 
 annually. That the executive committee be required to get up definite 
 printed forms for notes, gifts, bequests, etc.” 
 
 Addre33 of Board to G)nferences, August, 1872 
 
 They also formulated and adopted a report or address to the 
 Bishops and Annual Conferences, soon to be assembled, in which they 
 recited the previous appointment of committees, their meeting and 
 proceedings at Memphis, the appointment of this Board of Trust and 
 its proceedings, as hereinbefore stated, setting out in full the charter, 
 the communications to and from the Bishops and said By-law Xo. 2, 
 above quoted, and saying, among other things: 
 
 ‘‘There was secured the cordial approval of the College of Bishops 
 in behalf of an enterprise which promises, in connection with our other 
 'nstitiitions of learning, to accomplish a great work for Christian edu¬ 
 cation, under Methodist direction and control. 
 
 “It remains for the action of the convention, and the Board of 
 Trust appointed by it, to receive the sanction, not only formal, but 
 hearty, of the several Annual Conferences represented in the conven¬ 
 tion. and not only their sanction, but their cooperation in the use of 
 all the means at their command. 
 
 • ••••*••••••••• 
 
 ‘‘The action of the convention and of the Board of Trust is now 
 before you. 
 
 “It has all been taken with the best light at hand, and, at the same 
 
9- 
 
 time, in deference to the fact that it requires your sanction and co¬ 
 operation, as well that it may be binding upon you as that it may result 
 in the success of the enterprise itself, the importance of which, we 
 doubt not, is estimated ver}' highly by you, as it is by ourselves. 
 
 '^Asking your sanction and cooperation with us in behalf of the Uni¬ 
 versity, and particularly your aid in the organization of a system of 
 agencies for procuring an endowment fund of $500,000, we now com¬ 
 mit this whole subject to your deliberation and action.” 
 
 This report, or address, was printed in pamphlet form and fur¬ 
 nished during the fall of 1872 to the several Annual Conferences con¬ 
 cerned. Six of the conferences in question approved, nominated trus¬ 
 tees as provided in By-law No. 2, most of whom were already mem¬ 
 bers of the Board, and agreed to cooperate in efforts to raise the re¬ 
 quired endowment. The other conferences failed to act or approve. 
 
 Meeting of Board, January, 1873 
 
 On January 16, 1873, the Board met at Brownsville, Tenn., elected 
 the new members nominated by the conferences, reduced the number 
 representing the Tennessee Conference from six to four by requesting 
 and accepting the resignations of two of their number, that each con¬ 
 ference should have an equal representation in the Board, and passed 
 the following resolutions: 
 
 ''Resolved, i. That the members previously in the Board under 
 the charter, with those now elected, are hereby in due form recognized 
 as the representatives of their several Annual Conferences, which have 
 resolved to cooperate in behalf of the Central University, there being 
 four from each Annual Conference—viz., Tennessee, Memphis, North 
 Mississippi, White River, Little Rock and Arkansas. 
 
 “2. That we hereby declare vacant the seats, as members of the 
 Board under the charter, of those persons, all of them now absent, 
 heretofore recognized as representatives of the North Alabama, Ala¬ 
 bama, Mississippi and Louisiana Conferences, these conferences hav¬ 
 ing failed to take action in favor of the Central University.” 
 
 They also revised their code of by-laws, substituting for former 
 By-law No. 2 new By-law No. 7: “Each cooperating conference, be¬ 
 ing entitled to four members or representatives in the Board of Trust, 
 should any vacancy or vacancies occur, the Board shall fill the same, 
 upon the nomination of the conference to be represented,” and added 
 
 2 
 
- 10 - 
 
 No. 8: “These by-laws may be amended at any annual meeting of 
 the Board by a two-thirds vote of all the members present.'" 
 
 Commodore Vanderbilt’s First Gift, March, 1873 
 
 On March 26, 1873, at a called meeting of the Board in Nashville, 
 Bishop McTyeire, “after an explanation highly satisfactory to the 
 Board,” submitted a letter from Mr. C. Vanderbilt, dated March 17, 
 1873, ss follows, to wit: 
 
 “To Bishop H. N. McTyeire, of Nashville: I make the following 
 offer through you to the corporation, known as the Central University 
 of the Methodist Episcopal Church, South: 
 
 “First—I authorize you to procure suitable grounds, not less than 
 from twenty to fifty acres, properly located, for the erection of the 
 following work: 
 
 “Second—To erect thereon suitable buildings for the uses of the 
 University. 
 
 “Third—You to procure plans and specifications for such building^, 
 and submit them to me, and when approved, the money for the fore¬ 
 going objects to be furnished by me as it is needed. 
 
 “Fourth—The sum included in the foregoing items, together with 
 the ‘endowTnent fund," and the ‘librar}* fund," shall not be less, in the 
 aggregate, than five hundred thousand ($500,000) dollars, and these 
 last two funds shall be furnished to the corporation as soon as the 
 buildings for the University are completed and ready for use. 
 
 “The foregoing being subject to the following conditions: 
 
 “First. That you accept the presidency of the Board of Trust, 
 receiving therefor a salary of three thousand ($3,000) dollars per an¬ 
 num, and the use of dwelling house, free of rent, on or near the Uni¬ 
 versity grounds. 
 
 “Second. Upon your death or resignation, the Board of Trust 
 shall elect a president. 
 
 “Third. To check hasty and injudicious appropriations or meas¬ 
 ures, the president shall have authority, whenever he objects to any act 
 of the Board, to signify his objections, in writing, within ten days 
 after its enactment, and no such act to be valid unless, upon recon¬ 
 sideration, it be passed by a three-fourths vote of the Board. 
 
 “Fourth. The amount set apart by me as an endowment fund shall 
 be forever inviolable, and shall be kept safely invested, and the interest 
 or revenue only used in carrying on the University. The form of in- 
 
- 11 - 
 
 vestment which I prefer, and in which I reserve the privilege to give 
 the money to said fund, is in seven per cent first mortgage bonds of 
 the New York Central & Hudson River Railroad Company, to be 
 registered in the name of the corporation, and to be transferable only 
 upon a special vote of the Board of Trust. 
 
 “Fifth. The University is to be located in or near Nashville, Tenn. 
 
 “Respectfully submitted, 
 
 “C. Vanderbilt.^' 
 
 Thereupon, with a suitable preamble, the Board adopted the follow¬ 
 ing resolutions: 
 
 “Resolved (i). That we accept, with profound gratitude, the dona¬ 
 tion, with all the terms and conditions specified in said proposition. 
 
 “Resolved (2), That, as an expression of our appreciation of this 
 liberality, we instruct the committee, hereinafter mentioned, to ask 
 the Honorable Chancery Court to change the name and style of our 
 corporation from ‘The Central University of the Methodist Episcopal 
 Church, South,’ to ‘Vanderbilt University’; and that the institution, 
 thus endowed and chartered, shall be from henceforth known and 
 called by this name. 
 
 “Resolved (3), That the Hon. M. Brown, the Hon. E. H. East 
 and the Rev. D. C. Kelley, D.D., be, and they are hereby, authorized 
 and requested to obtain, at the earliest practicable day, such modifi¬ 
 cations of our charter as will enable this Board to conform its future 
 operations to the conditions aforesaid. 
 
 “Resolved (4), That the secretary is requested to convey to Mr. C. 
 Vanderbilt the sincere thanks of this Board, and a copy of these reso¬ 
 lutions.” 
 
 Bishop McTyeire had not solicited this donation, but while lately 
 in New York was a guest of Mr. C. Vanderbilt in his home (their 
 wives being cousins), and evidently had acquainted Mr. Vanderbilt 
 with the project of this University, and probably furnished him a copy 
 of the printed pamphlet, hereinbefore referred to, containing its char¬ 
 ter, by-laws, etc., which had been submitted to the conferences; and 
 Mr. Vanderbilt was so impressed with the enterprise that he volun¬ 
 tarily made the proposition aforesaid. 
 
 Thereupon, the then president, Judge Milton Brown, resigned, and 
 the Board elected Bishop McTyeire, not previously a member, president 
 of the Board of Trust, which position he held during his life. 
 
12 
 
 Amended Charter of 1873 
 
 On April 23, 1873, in the Chancery Court at Nashville, a petition 
 to amend its charter was filed by the University, as follows: 
 
 “The Central University of the Methodist Episcopal Church, South. 
 
 Ex parte. 
 
 “To the Honorable W. F. Cooper, Chancellor, etc.: 
 
 “The petition of the Central University of the Methodist Episcopal 
 Church, South, a corporation, chartered heretofore by the Chancery 
 Court at Nashville. 
 
 “Petitioner would state to your honor that heretofore, by a decree 
 of record in this court, it was chartered as a University of learning— 
 a certified copy of its charter is here filed, marked ‘Exhibit B,’ and 
 made a part of this petition. Since it has obtained its charter its con¬ 
 dition is so altered that it now desires to have an amendment to its said 
 charter, which amendments are as follows: 
 
 “It having been thought politic to limit the number of the Board 
 of Trust to four from each cooperating conference, the names of 
 Jordan Stokes and Robert A. Young be dropped from the list. Some 
 conferences not having cooperated in the purposes of said institution, 
 it is now desirable to omit from the list of Trustees the names of the 
 persons heretofore incorporated, and who represented said confer¬ 
 ences, as follows, viz: Christopher D. Oliver and William Dickson, 
 of the North Alabama Conference; Edward Wadsworth and W. W. 
 Byrd, of the Alabama Conference; W. L. C. Hunnicutt and Thomas 
 
 f _ 
 
 Christian of the Mississippi Conference; and James L. Borden and 
 William H. Foster of the Louisiana Conference. 
 
 “A large donation having been made to petitioner by C. Vanderbilt, 
 of New York, of not less than $500,000, as set out in ‘Exhibit C,’ here¬ 
 with filed and made a part of this petition, petitioner prays that its 
 name and style be changed to that of ‘The Vanderbilt University,’ and 
 that the terms and conditions of said gift be incorporated as a part of 
 said charter. 
 
 “Petitioner also prays that the words ‘or the resolutions of the 
 convention at Memphis set out herein, which resolutions are hereby 
 adopted as a part of this charter,’ on page 12 of the printed charter 
 here filed, be stricken out and omitted, and that said charter may be 
 so altered and amended as to read as set out in ‘Exhibit D,’ here filed 
 and made a part of this petition. Petitioner asks that this be done in 
 order that the ends of its creation may be the more readily attained. 
 
—13 
 
 “Petitioner prays general and full relief in the premises. 
 
 “Edward H. East, Solicitor/* 
 
 Publication was duly made as required by law, and on June i6, 1873, 
 Chancellor Cooper pronounced and entered the following decree: 
 
 “In the matter of the Central University of the Methodist Episcopal 
 Church, South. 
 
 “This matter came on this day to be heard before the Chancellor 
 Upon the petition heretofore filed, and publication of the matter thereof 
 having heretofore been made, according to the statutes in such cases 
 made and provided, the court is pleased to order and decree that the 
 name and style of The Central University of the Methodist Episcopal 
 Church, South, a corporation heretofore chartered under the constitu¬ 
 tion and laws of this State as a university of learning, and with all the 
 powers, rights and privileges of such corporations as are now given 
 and conferred by the laws of the State of Tennessee, or may hereafter 
 be given or conferred, be changed to the name and style of The Van¬ 
 derbilt University, by which name it shall hereafter be known, and 
 sue and be sued, hold and receive property, confer degrees, and do 
 any and all things which by the present and future laws of Tennes¬ 
 see it may be empowered to do. 
 
 “It is further decreed that all the rights of property, powers of 
 contract, privileges, immunities and franchises which heretofore by law 
 under the decree of this court were conferred upon the said corpora¬ 
 tion, under the name and style of The Central University of the Meth¬ 
 odist Episcopal Church, South, and the property or rights thereto 
 which have heretofore been secured to said corporation, pass to The 
 Vanderbilt University and its assigns, forever, for the purposes of said 
 corporation; and that it have the power to pass by-laws, resolutions, 
 etc., not inconsistent with the laws of the land, and to increase and 
 diminish the number of its trustees and directors and do and perform 
 any and all acts allowable by law to corporations of learning. It is fur¬ 
 ther decreed that said Vanderbilt University pay the cost of this pro¬ 
 ceeding for which £. fa. issue.” 
 
 Source of Endowment and Plant 
 
 In the meantime Bishop McTyeire and the Board proceeded to ac¬ 
 quire the grounds, procure plans for buildings, etc., as provided by 
 Mr. Vanderbilt’s offer, and otherwise carry out its terms and con¬ 
 ditions. 
 
 Citizens of Nashville contributed about $30,000 toward the pur¬ 
 chase of the campus of the University. 
 
—14— 
 
 From time to time within the next year or two Mr. C. Vanderbilt 
 increased his donations to a million dollars, and subsequently other 
 members of the Vanderbilt family added to the funds of the University 
 for its enlargement and endowment, in round numbers another mil lion 
 dollars. 
 
 At the time of Mr. C. Vanderbilt’s first gift subscriptions from 
 other persons in small amounts, and of no very considerable aggregate, 
 had been procured by agents of the University, but little or nothing 
 had been paid thereon. The whole amount promised fell far short of 
 the minimum upon which, under the Memphis resolutions, the Board 
 was authorized to open any department of the University. Hence, at 
 that time, the Board resolved “that our agents be requested to double 
 their diligence to secure, if possible, the remaining half million of en¬ 
 dowment by the ensuing sessions of the Annual Conferences.” This, 
 however, they never succeeded in doing. 
 
 It further appears that whatever funds were realized from sub¬ 
 scriptions previous to the Vanderbilt gifts were subsequently devoted to 
 the “sustenance fund” to pay the personal expenses of students in the 
 theological department. 
 
 After the original Vanderbilt gift, other donations were made to 
 purchase the campus, for special endowments of particular chairs, 
 scholarships and other specific purposes, but it does not appear that 
 anything was added to the general endowment of the University 
 except by Mr. C. Vanderbilt himself and other members of the family. 
 
 Garland Resolution 
 
 Now, reverting to the proceedings of the Board of Trust, we find 
 that at a meeting on January 14, 1874, they accepted the amended 
 charter, again resolved to exclude members from the nonparticipating 
 conferences, and that the six cooperating were entitled to representa¬ 
 tion. 
 
 At their meeting on September 30, 1874, Bishop McTyeire an¬ 
 nounced the death of Eh-. Green, one of their members, and in his 
 address stated: 
 
 “Another vacancy or two will occur in the Board by the transfer 
 of members beyond the patronizing conferences, I suggest that it is 
 very important so to amend the by-laws that this Board may have the 
 initiative in filling vacancies by nomination of the successors, the con¬ 
 ferences confirming. This reverses the order followed in originally 
 making up the Board. For obvious reasons, while as yet the patron- 
 
—15— 
 
 izing conferences were to be determined by their own action, it was 
 left to them, as they concurred in the plan outlined by the convention 
 at Memphis, to name persons to represent them in organizing. 
 
 ‘‘But since the charter leaves the pen>etuity of the Board in its own 
 power, we should keep up the conference representation on the prin¬ 
 ciple here suggested. The constituency, the fitness and the safety of 
 the Board having this vast and growing interest in trust will be very 
 uncertain if, by popular election, on hasty and perhaps ill-considered 
 grounds of choice, its future members are to be supplied. Whereas, 
 the Board knows its own wants, is familiar with the nature of the work 
 to be done, has the University and its interests in mind and on heart, 
 and is ever watchful of its welfare and on the lookout for suitable 
 instruments and agents to promote it. As the whole matter is covered 
 by a resolution of your body, it may be adjusted readily. And a pre¬ 
 cedent should now be set in filling the first vacancies. If possible, this 
 Board should send up its nominations to the ensuing conferences. This 
 course is not only demanded by provident wisdom, but is in analogy 
 with other and the oldest institutions of learning under the care of the 
 church. The Board elects or nominates, and the Annual Conference 
 confirms.” 
 
 Whereupon the Board passed what is known as the Garland reso¬ 
 lution : 
 
 “Forasmuch as the charter of Vanderbilt University confers upon 
 its Board of Trust the exclusive right and power to fill vacancies that 
 may occur in its own body, and as this power cannot be delegated to 
 any other body of persons whatsoever; therefore, be it 
 
 ''Resolved, That this Board will now proceed to fill the vacancies 
 which have been created by the death of the late Dr. Green and by 
 the transfer of the Rev. W. C. Hearn to the Denver Conference. 
 
 “But in order to maintain the closest connection with the patron¬ 
 izing conferences, the Board submits these and every other election to 
 fill a vacancy in its own body to the confirmation of the Annual Con¬ 
 ference from which the election is made.” 
 
 They then elected two Trustees to fill these vacancies, and in¬ 
 structed the Secretary to convey this information to the two con¬ 
 ferences concerned and ask for the confirmation of these elections; 
 also to send a copy of the recorded action of the Board, to-wit, the 
 Garland resolution. The records of one of these conferences (Ten¬ 
 nessee) show that this was done, and it made the following response: 
 
16 — 
 
 ' ''Resolved (i), That in view of the relations already established by 
 contract between the Tennessee Conference and Vanderbilt University, 
 we proceed now to nominate one of our members to fill the vacancy in 
 the Board of Trust caused by the death of Dr. Green and that we nomi¬ 
 nate Dr. R. A. Young. 
 
 “(2) That in response to the request of the Board of Trust we 
 consent to modify the original contract so that hereafter when a va¬ 
 cancy occurs the Board may nominate one of our own members to 
 us for confirmation, the nominee not to be a member of the Board until 
 confirmed by us.’^ 
 
 Readmission of Alabama (North Alabama) Conference 
 
 In the fall of 1874 the Alabama Conference, theretofore excluded 
 for failure to cooperate under the charter, decided to come in, and 
 nominated four members to represent it on the Board of Trust. 
 
 In May, 1875, the Board rescinded its former action, excluding 
 members from the Alabama Conference, and elected the four named 
 by that conference. At the same time they amended their by-law 7 
 to conform to the Garland resolution, elected two new members to fill 
 vacancies from the North Mississippi Conference, and directed that 
 this action be reported to that conference for confirmation. 
 
 Reduction of Conference Representatives from Four to Two 
 
 In 1880, the President, Bishop McTyeire, recommended that the 
 members of the Board be reduced from four to two from each con¬ 
 ference, and that the Louisville Conference, not heretofore connected 
 with the enterprise, be admitted and represented on the Board as one of 
 the cooperating conferences. 
 
 In 1881 a committee reported in favor of the proposed reduction, 
 and that it be referred to the conferences for concurrence. 
 
 This report was tabled, and the matter referred to another com¬ 
 mittee, of which Judge East was Chairman. 
 
 In 1882 this committee reported, “Contrary to the view it first 
 entertained that this matter was a charter question, that it is simply a 
 by-law question, the charter being silent on the subject; and the whole 
 matter is subject to By-law 7, and the by-laws may be changed or 
 amended at any annual meeting of the Board by a two-thirds vote 
 of all the members present;” and recommended a change of the by¬ 
 law to that effect. The report was adopted, and the by-law so amended. 
 No action of the conferences was asked or taken on the subject. 
 
17— 
 
 Action of Board in 1884 and 1888 
 
 In 1884 two members from the Louisville Conference were elected 
 by the Board, and reported to the conference for confirmation. 
 
 In 1888 the term of menrhership was reduced by the Board from 
 life to eight years. This action was referred to the conferences for con¬ 
 currence, and they approved. 
 
 Chancellor and Bishops Made Ex Officio Members, and Non- 
 Conference Members Admitted, 1894 
 
 In 1894 the Board amended its by-laws so as to admit to membership 
 ex officio the Chancellor of the University and the Bishops of the 
 church; also “four additional members, without regard to their location 
 in any particular one of the patronizing conferences."' Their election 
 was not made subject to confirmation, and the Board declined to make 
 its amended by-law subject to the concurrence of the patronizing con¬ 
 ferences. 
 
 Redaction of Conference Representatives from Two to One 
 
 In 1895, Chancellor Kirkland, in his address to the Board, sug¬ 
 gested that some change in the method of electing Trustees and in the 
 constitution of the Board should be made, so as to relate the University 
 more closely to the whole church, and constitute it the central university 
 of Southern Methodism. This was referred to a committee, who, in 
 1896, reported as follows: 
 
 “i. We think it very impyortant that Vanderbilt University should 
 be closely allied to the whole church, as the central university of South¬ 
 ern Methodism. 
 
 “2. We believe this can be partially effected, even now, by in¬ 
 creasing the number of Trustees who are selected independently of our 
 eight patronizing conferences. 
 
 “3. We recommend that the by-laws be amended so as to give only 
 one representative to each of the eight patronizing conferences; and 
 that the eight vacancies thus created be filled by the selection of repre¬ 
 sentative men, without regard to geographical limitation. 
 
 “4. As the best method of effecting this result we suggest, as the 
 terms of the present members expire, the Board select only one repre¬ 
 sentative for each patronizing conference, and we suggest that each 
 patronizing conference be requested to approve this change in the by¬ 
 laws and accept the reduction from two to one representative." 
 
—18— 
 
 The Board adopted this report and amended its by-laws accord¬ 
 ingly. The conferences approved this action. 
 
 Severance of Relationship with Annual Conferences, and Establish¬ 
 ment of Relationship with General Conference, 1895- 
 
 1898—Memorial of 1898 
 
 In 1897 the Chancellor, in his address, suggested further changes 
 along this line, and a committee to whom the subject was referred 
 reported: 
 
 '‘We recommend that, in order that Vanderbilt University may be 
 related to the church as the central university of Southern Methodism, 
 and may assume a connectional relationship to the whole church as the 
 crowning feature of our educational system, the consent of the patron¬ 
 izing conferences be asked to the proposition that hereafter the Board 
 of Trustees be selected from the entire church, without regard to geo¬ 
 graphical limitation, and to be confirmed by the General Conference. 
 In order to secure such consent, the Chancellor of the University is 
 requested to submit this proposition to the several patronizing confer¬ 
 ences at the next annual sessions. We furthermore suggest that a 
 resolution be submitted to the next General Conference asking the 
 adoption of this University as the central institution of the Methodist 
 Episcopal Church, South.” 
 
 This report was adopted and a committee composed of three Bishops 
 appointed to prepare a memorial to the General Conference. This mat¬ 
 ter was referred to the Annual Conferences, and all except the Louisville 
 Conference, which deferred action, passed resolutions expressing will¬ 
 ingness to transfer to the General Conference “all rights, title and 
 interest that we have in said University, and hereby solicit the coopera¬ 
 tion of all the conferences represented, and the Board of Trust, in 
 securing this desirable end. 
 
 “2. That until this is accomplished we adhere to the status secured 
 to us by contract, which gives us a controlling voice in the appointment 
 of our representatives on the Board of Trust.” 
 
 In 1908 the Louisville Conference took similar action. 
 
 In the meantime the committee of the Board of Trust, composed of 
 three Bishops, presented to the General Conference of the M. E. Churchy 
 South, which met in Baltimore in May, 1898, a memorial as follows: 
 
 “The undersigned, constituting a committee appointed by the Board 
 of Trust of Vanderbilt University to make a special report to the Gen¬ 
 eral Conference of the M. E. Church, South, beg leave to present this 
 
—19— 
 
 communication with reference to the University and its relation to the 
 whole church. Vanderbilt University, as is well known, has heretofore 
 been the central institution of eight patronizing conferences. The title 
 to the property is vested in a Board, to be held in trust for these confer¬ 
 ences of the Methodist Episcopal Church, South. For several years the 
 Board has had under consideration a plan to make the University en¬ 
 tirely connectional and relate it directly to the whole church. The plan 
 proposed is to have the patronizing conferences transfer their rights in 
 the University to the General Conference, and to have the General 
 Conference, by proper resolution, accept the patronage of the Univer¬ 
 sity and consent to assume toward this enterprise the same relation 
 heretofore held by the separate conferences. The Board of Trust has 
 officially expressed its approval of this plan, and most of the patron¬ 
 izing conferences have done the same thing. 
 
 “By the charter of the University the Board of Trust is vested 
 with the power and obligation to fill its own vacancies, but the election 
 of any member is not valid under the law of the University until said 
 member has been confinned by the conference which he is designed 
 to represent. Under the new plan, the Board would be at liberty to 
 select its members without geographical restrictions of any kind, and 
 the General Conference would confirm or reject the appointment. This 
 duty could be exercised either by the General Conference as a body, 
 or it could be delegated by the conference to some board, itself the 
 creature of the General Conference. Naturally the Board of Education 
 will be thought of in this connection. This Board meets every year, 
 and is likely to be charged more and more with the oversight of our 
 institutions of learning. It is now trying to devise methods for cor¬ 
 relating all our colleges and universities, and it would be appropriate 
 for the General Conference to exercise its control of Vanderbilt Uni¬ 
 versity largely through the Board. In that manner vacancies in the 
 Board of Trust of the University could be filled every year, and it 
 would not be necessary to wait four years for action that might be 
 promptly needed. 
 
 “As a committee, therefore, of the Board of Trust of Vanderbilt 
 University, we beg to present this matter to the General Conference, 
 and invite such action as may be adjudged right and proper. 
 
 “A. W. Wilson, 
 
 “Charles B. Galloway, 
 
 “Eugene R. Hendrix.'' 
 
— 20 — 
 
 The General Conference accepted this proposal in the following 
 resolutions: 
 
 “First. That the General Conference of the M. E. Church, South, 
 hereby accepts the proposed relation and control of the Vanderbilt 
 University, and commits to the General Board of Education the con¬ 
 firmation of all Trustees selected by the Board of Trust of Vanderbilt 
 University. 
 
 “Second. That this resolution take effect as soon as the consent 
 of all the present patronizing conferences has been obtained, all the 
 necessary legal steps taken, and preliminary details arranged.” 
 
 This relation between the University and the General Conference 
 was maintained from 1898 to 1910. 
 
 The Board’s Action in 1905 
 
 In 1905, the Board repealed the by-law making the Chancellor and 
 Bishops, thirteen in number, ex officio members, and adopted, in lieu, 
 one making the Chancellor and five Bishops, selected according to their 
 seniority, regular members of the Board, and made nominations 
 accordingly to the General Board of Education for confirmation. 
 
 The Board, at the same time, determined to take out an amended 
 charter, under act of 1875, ch. 142, prepared and signed an applica¬ 
 tion therefor, but some of the members subsequently withdrew their 
 names, and it was not filed. These and other matters created some 
 dissatisfaction in the minds of some of the Bishops and members of 
 the General Conference, and hence, at its session in 1906, the General 
 Conference adopted a report of its committee on education, in part as 
 follows: 
 
 Appointment of Vanderbilt Commission by General Conference 
 
 of 1906—Its Report 
 
 “There can be no question as to the ownership of the University 
 by the Methodist Episcopal Church, South, or as to the charter rights 
 of all the Bishops; but, in view of certain questions which must be 
 authoritatively decided, we recommend the appointment by this Gen¬ 
 eral Conference of a commission of five laymen of the Methodist 
 Episcopal Church, South, as follows: 
 
 “i. To inquire into and determine the present relations of the 
 Vanderbilt University to the Methodist Episcopal Church, South. 
 
 “2. To take legal steps, if necessary, to perfect the transfer of the 
 University from the patronizing conferences to the General Confer¬ 
 ence of the Methodist Episcopal Church, South. 
 
—21 
 
 ‘*3- To define the charter rights of the Bishops of the Methodist 
 Episcopal Church, South; and, when so defined, the Bishops are here- 
 by instructed to enter on the same.” 
 
 That commission was composed of five eminent lawyers, who, after 
 extended investigation and hearing of all who cared to be heard, made 
 to the General Conference at its session of 1910 an extended report 
 (previously prepared and filed in December, 1906); and its conclu¬ 
 sions are fairly well summarized by appellants as follows: 
 
 “(a) That the petitioners, who applied for and obtained the char¬ 
 ter of the University, and who were thereby declared to be the ‘body 
 politic and corporate,’ were not the members of the corporation, but 
 that the cooperating Annual Conferences were the real members of 
 the corporation; and 
 
 “(b) That the University was not founded by Mr. Vanderbilt, 
 but by the Annual Conferences; and 
 
 “(c) That since 1898 the General Conference, as assignee of these 
 Annual Conferences, had been the member, and the sole member, of 
 the corporation; and 
 
 “(d) That the Bishops had no authority in law, or power under 
 the charter, as members either of the corporation or of the Board of 
 Trust, and either alone or jointly with the Board, or as members ex 
 officio; but 
 
 “(e) That, by virtue of the ninth of the Memphis resolutions, made 
 a part of the charter, the Bishops were visitors of the University, with 
 common law visitorial powers.” 
 
 Action of Board of Trust Respecting Report of Vanderbilt 
 
 Commission 
 
 A copy of this report was filed with the Board of Trust, who passed 
 the following resolutions: 
 
 ”Resolved, i. That we cordially receive the same and direct that it 
 be filed with the records of this Board. 
 
 “2. That we hereby express our appreciation of the ability and 
 fidelity with which the members of the commission have discharged 
 their important duties. 
 
 “3. That, recognizing and rejoicing in the ownership of the church 
 in the University, and all the responsibilities arising therefrom, we wel¬ 
 come any supervision by the College of Bishops that may aid us in 
 executing the great trust committed to our hands, so as to insure the 
 observance of the charter, the conditions of specific gifts and the 
 statutes of the State.” 
 
— 22 — 
 
 Complainants now insist that this was an acceptance by the Board 
 of the conclusions of the commission. The Chairman of the commis¬ 
 sion did not so construe it, and in this view the General Conference 
 and its Committee on Education seem to have agreed with him; and so 
 do we. We need not inquire what effect, if any, such an acceptance 
 would have. 
 
 Asheville GenerzJ Conference of 1910 
 
 The General Conference adopted the report and resolved, in part, as 
 follows: 
 
 ‘‘Resolved (i). That this General Conference hereby accepts the 
 report of the Vanderbilt Commission as a definition of the rights of the 
 Methodist Episcopal Church, South, to Vanderbilt University; more¬ 
 over, that it accepts the judgment of the commission that the College 
 of Bishops is a board of common law visitors of the University; and, 
 furthermore, that it accepts the finding of the commission that the Gen¬ 
 eral Conference has the right to select the Board of Trustees in such 
 manner as it may elect, either by direct election by the conference itself 
 or through such agency or agencies as it may designate. 
 
 “Resolved (2), That it is the sense of this General Conference that 
 its right to select the Board of Trust of Vanderbilt Universitv and fill 
 vacancies in the same should now be exercised, and hereafter at its dis¬ 
 cretion ; and, it being ascertained that vacancies now exist in the Board 
 of Trust of said University, the following-named members of the Meth¬ 
 odist Episcopal Church, South, are hereby elected to fill said vacancies, 
 namely: 
 
 “Resolved (3), That, following this election the General Confer* 
 ence will, for the future, continue the method of choosing the Trustees 
 adopted by the General Conference held at Baltimore in 1898, when it 
 committed ‘to the General Board of Education the confirmation of all 
 Trustees elected by the Board of Trust of Vanderbilt University.’ 
 
 “Resolved (4), That the General Conference approves the action 
 of the Bishops in entering upon the discharge of their duties as visitors 
 of the University.” 
 
 Subject-Matter of Controversy 
 
 In pursuance of said second resolution, it elected the relators, V. A. 
 Godbey, N. E. Harris and Albert W. Biggs, as Trustees, and ordered 
 their election certified to the Board. At the next meeting of the Board 
 of Trust, in Tune, 1910, said parties, so elected, applied to be admitted 
 
as members, but the Board refused their application, and resolved, by 
 a vote of 19 to 8, that the General Conference had no right to elect 
 members to fill the vacancies in the Board; that the Board itself had that 
 right; that it amend its by-laws accordingly, and proceed to fill the 
 existing vacancies. Therefore it elected for that purpose and seated 
 the defendants, Claude Waller, R. F. Jackson and James A. Robins, 
 instead of the persons elected thereto by the General Conference. After¬ 
 wards, on July 12, 1910, the College of Bishops met as visitors of the 
 University, vetoed this action of the Board, declaring it illegal, null and 
 void, and sustained the right of the General Conference to elect, and 
 of its appointees to membership in the Board. Thereupon this bill 
 was filed by the State, at the relation of the College of Bishops and 
 Messrs. Godbey, Harris and Biggs, against the University, the Board 
 of Trust, and Messrs. Waller, Jackson and Robins, seeking to establish 
 and enforce the alleged rights of the relators, as hereinbefore indi¬ 
 cated. 
 
 THE BOARD OF TRUST IS A SELF-PERPETUATING BODY 
 
 I The controversies in this case are not so much of fact as of proper 
 construction of documents and written records of various kinds 
 offered in evidence, and of questions of law arising thereon. We will 
 now pass, to a consideration and decision of these questions. 
 
 The University was incorporated under the Act of 1871, Chapter 
 54. Section i thereof provides: “Hereafter when persons in this State 
 shall desire to be incorporated with the powers and privileges of a 
 corporate body, they shall file a petition in the Chancery Court of the 
 county in which the largest number of petitioners reside, setting forth 
 the purpose and objects of the corporation prayed for.” Then, after 
 describing the publication to bq made, the court is directed to proceed 
 to an eAT parte hearing of the petition, and, “it appearing to the court 
 that the objects of the corporation prayed for are not in conflict with 
 the laws of the land nor detrimental to public interests or morals, the 
 court shall so adjudicate and decree . . . and shall enumerate such 
 
 usual powers and privileges of corporate bodies as may be necessary 
 to carry out the legitimate objects of said corporation.” Section 9 
 thereof provides: “That the powers granted to Chancery Courts by 
 this Act shall extend to the incorporation of institutions of learning, 
 churches, religious and charitable institutions, and the powers and. 
 privileges of such corporations shall be as prescribed in Sections 1470, 
 1471, 1472 and 1473 of the Code of Tennessee.” 
 
— 24 — 
 
 Code, Section 1470, applies to corporations with stockholders. 
 
 Section 1471 provides: “If the members are not interested as stock¬ 
 holders, each member is entitled to vote, at all elections, one vote, and 
 to bear an equal voice in all the deliberations of the whole body. Such 
 members may fix the number of trustees, the officers of the associa¬ 
 tion, their terms of service and compensation.’' 
 
 Section 1472: “Corporations created under this article may hold 
 real and personal property, not exceeding in value $50,000, may receive 
 property by gift, will or devise, holding the same for purposes of their 
 incorporation, with all the lawful conditions imposed by the donor, and 
 may exercise such powers as are incident to private corporations.” 
 
 Section 1473 provides for service of process on the corporation in 
 case of suits, etc. 
 
 The Code of 1858, from which these sections are taken, had pro¬ 
 vided for the organization of corporations of various kinds by pro¬ 
 ceedings quite different from those provided by the Act in question. 
 The Constitution of 1870 had forbidden the granting of charters by 
 special act, and required that all charters of incorporations should be 
 granted by general laws. In pursuance of this provision the Legisla¬ 
 ture of 1870-71 passed the Act in question as a general corporation act, 
 providing for the organization of various kinds of corporations. We 
 have quoted so much thereof as is applicable to the class of corporations 
 to which this educational institution belongs. This is a general Act, 
 covering the whole subject, and therefore superseded the Code pro¬ 
 visions, except so far as they were adopted and reenacted thereby. 
 
 Terrell vs. State, 86 Tenn., 523. 
 
 Malone vs. Williams, 118 Tenn., 445. 
 
 It changed entirely the method of procedure necessary to obtain a 
 charter and organize a corporation, but as to institutions of learning 
 etc.. Section 9 of the Act gave them the same powers as were given 
 to like corporations organized under the Code. 
 
 Heck vs. McEwen, 12 Lea, 97. 
 
 Caldwell ex parte, 3 Bax., 98. 
 
 Whether that Act would authorize representative incorporation, that 
 is to say, the incorporation of a certain body or class of individuals 
 as an educational institution upon the application of a few acting as the 
 representatives, it is not necessary in this case to decide, for the reason 
 that the applicants for this charter had not been authorized to repre¬ 
 sent for that purpose anyone other than themselves, unless, perchance, 
 it were the members of the Memphis convention, by whom they had 
 
25 — 
 
 been named. The members of that convention formed a mere tem¬ 
 porary body, without permanence or succession, and clearly they did 
 not contemplate their own incorporation. The insistence in this case 
 is not to this effect, but that they represented the Annual Conferences, 
 whose committees constituted that convention. We cannot agree with 
 this contention for several reasons. The conferences had not author¬ 
 ized that convention to bind them, and the convention did not under¬ 
 take to do so. The conferences, whether incorporated or mere volun¬ 
 tary associations, were not competent to form an association with each 
 other for the purpose of incorporation or, without express statutory au¬ 
 thority, to act as members of a corporation. 
 
 I Thomp. Corp., 2d Ed., Sec. 176. 
 
 I Wilgus Corp., 56, 553. 
 
 I Clark & Marsh Corp., p. 127. 
 
 I Meacham, Sec. 130. 
 
 See also Mallory vs. Oil Works, 86 Tenn., 598. 
 
 Rhodes vs. Rhodes, 88 Tenn., 637. 
 
 Green vs. Allen, 5 Humph., 158. 
 
 The Tennessee Act in question clearly contemplates the incorpora¬ 
 tion of natural persons and not corporations or voluntary associations. 
 These annual conferences, whether incorporated or not, were repre¬ 
 sentative bodies, composed of delegates from the several churches with¬ 
 in their 'bounds, and the churches were composed of individual mem¬ 
 bers. It has been suggested that, if the conferences could not act as 
 incorporators, the delegates of whom they were composed might do 
 so, but it is clear that they had no such intention, or that the individual 
 members of the several churches could do so. It is equally clear that 
 they had no such intention. The Memphis convention and its Board 
 of Trust entertained no such thought. This would be carrying repre¬ 
 sentative incorporation beyond the limit. If such were permissible, a 
 large class of persons who had never even dreamed of the subject might 
 wake up and find themselves incorporated. The Act provides only for 
 persons so desiring to be incorporated. 
 
 The subsequent ratification of the action of the convention and the 
 Board of Trust could not change the result, for the action taken did not 
 purport to incorporate any but the petitioners; and the by-law adopted 
 in furtherance of the Memphis resolutions proclaimed that ‘'the charter 
 leaves the perpetuity of the Board in its own power,'* and requested 
 the several conferences cooperating to nominate four members for 
 election, etc. This was certified along with the charter and the Mem- 
 
— 26 — 
 
 phis resolutions to the conferences; and when they ratified, they could 
 not possibly have understood that they thereby became incorporators, 
 and such ratification could not, in any event, change the legal effect 
 of the charter already granted. 
 
 Moreover, the petition for the charter was filed by the applicants 
 as individuals, and not as representatives of anyone, and the publica¬ 
 tion thereon was made accordingly. The fact that they are described 
 in the decree or charter as representatives of certain Annual Confer¬ 
 ences does not in this respect change the result. While the court, in 
 pronouncing this decree, was acting not judicially, but ministerially 
 (Chadwell ex parte 3 Bax., 108), yet the proceeding was according to 
 judicial forms, and the decree or charter cannot depart in substance 
 from the petition. The petition is the basis and measure of the thing 
 to be granted. The court might grant less, but not more, than was 
 sought by the petition. 
 
 Wilson vs. Schaefer, 107 Tenn., 300. 
 
 Gilbreath vs. Gilliland, 95 Tenn., 383. 
 
 Therefore, we are of opinion that, under this Act and these proceed¬ 
 ings, the person's applying for the charter became the incorporators, the 
 body politic or corporate, in other words, the members of the corpora¬ 
 tion; and had the right of perpetual succession. Neither" the Act nor 
 the charter provides how their successors shall be chosen; and, in the 
 absence of such provision, in the case of a corporation aggregate, that 
 right, by necessary implication, would be vested in the persons so in¬ 
 corporated. 
 
 I Blackst. Com., 475-576. 
 
 Taylor on Corp., Sec. 14. 
 
 Kyd on Corp., 69. 
 
 Ang. & Ames on Corp., 70, 89. 
 
 Fowler on Charitable Uses, 138, Note 3. 
 
 Such, indeed, for a period of thirty-five years or more after the or¬ 
 ganization of this corporation was the uniform construction of its char¬ 
 ter by all parties concerned. 
 
 It is to be observed that many members of the Board of Trust from 
 its inception have been eminent lawyers, not only of Tennessee, but 
 also of other States. 
 
 The practical interpretation of a contract by the parties thereto 
 is entitled to great, if not controlling, influence. 
 
 Chicago vs. Sheldon, 9 Wall., 54. 
 
27 — 
 
 THE MEMPHIS RESOLUTIONS WERE AND ARE A VALID 
 
 PART OF THE CHARTER 
 
 There is great contention in this case as to the effect of the Mem¬ 
 phis resolutions, which are embodied in this charter. Complainants 
 insist that they constitute the essence, or soul, of the charter, and the 
 defendants that they are mere surplusage, and of no effect whatever. 
 It seems that, throughout the history of this institution, much doubt on 
 this question has arisen in the minds of the Board of Trust and other 
 parties concerned, and to settle that doubt more than one effort was 
 made to eliminate them from the charter, and it is now contended by 
 the defendants that this was in fact done by the amended charter of 
 1873 . We do not regard it as very material whether they became tech¬ 
 nically a part of the charter or not. At any rate, they were not im¬ 
 properly incorporated therein. 
 
 The Act of 1871, Chapter 54, requires, among other things, that 
 the petition shall set forth the purposes and objects of the corporation 
 prayed for, to the end that the court may adjudge and decree that the 
 objects of the corporation are not in conflict with the laws of the land, 
 etc. The objects of this corporation, as stated in the petition, were 
 “for the purpose of soliciting subscriptions, (and) donations, and for 
 the erection and maintenance of an institution of learning of the high¬ 
 est order, maintaining all the schools belonging to a university of that 
 character, together with the rights, powers and privileges which by law 
 may belong to literary institutions chartered by the laws of the State.’’ 
 It was altogether proper for the court, under this petition, to inquire 
 into, find and insert into the decree the objects and purposes of this 
 corporation, not merely in the general terms of the petition, but the 
 more amplified and particular form as stated in the Memphis resolu¬ 
 tions, which constitute the plan and specifications upon which this insti¬ 
 tution was to be^built, and then, as directed by the statute, “enumerate 
 such usual powers and privileges of corporate bodies as may be neces¬ 
 sary to carry out the legitimate objects of said corporation”; and so 
 the court did in this charter. 
 
 Mr. Thompson, in his work on Corporations, says: “The statute 
 of perhaps every State in the country, authorizing the organization of 
 corporations, requires the articles to state, definitely and clearly, the 
 objects and purposes of the proposed corporation. This is regarded in 
 some respects as the most important requirement, for by this the powers 
 of the corporation are to 'be determined, and its acts, to be legal and 
 
— 28 — 
 
 binding, except as otherwise hereinafter shown, must be measured by 
 the objects and purposes stated.” 
 
 I Thomp. Corp., 2d Ed., Sec. 191. 
 
 See also Idem, Sec. 40. 
 
 We are of opinion that the Memphis resolutions were not eliminated 
 from the charter by the amendment thereto of 1873. 
 
 The petition asked, not for a new charter, but for certain specific 
 amendments to the existing charter. The decree shows that only two 
 of these were allowed, to wdt: the change of name, and the power to 
 increase or diminish the number of members of the Board. Nothing i§ 
 said of the others. However, the decree passes to Vanderbilt Univer¬ 
 sity all rights, powers, privileges, immunities and franchises, “which 
 heretofore by law% under the decree of this court, were conferred upon 
 said corporation” under its former name and style, and so seems to con¬ 
 firm, rather than eliminate, the provisions of the original charter in re¬ 
 gard to the Memphis resolutions. But whether they had ever been 
 incorporated in the charter or not, or whether they had been eliminated 
 therefrom by this decree of 1873 or not, we think they would still con¬ 
 stitute, in so far as their provisions are legal, the underlying plan of 
 this institution, and their character and effect would, in either event, 
 be the same, to wit: its so-called “articles of foundation.” 
 
 COMMODORE VANDERBILT, AND NOT THE CHURCH, 
 
 WAS THE FOUNDER 
 
 This leads up to the much discussed question as to who is the 
 founder of this institution. 
 
 The Memphis convention, composed of delegates from the several 
 Annual Conferences, without power, however, to bind them by its 
 action, was the original designer—architect, as it were—of this educa¬ 
 tional enterprise. It devised and formulated the general plans and 
 specifications or so-called “articles of foundation,” upon which it 
 w^as to be built. It named a Board of Trust, w’ho should procure an 
 act of incorporation in order to give it permanence and carry out the 
 founders intention with more convenience. 
 
 2 Perry on Trusts, Sec. 742. 
 
 Dartmouth College case, 4 Wheat, 574. 
 
 Attorney-General vs. Pierce, 2d Atk., 87. 
 
 Tudor on Charities, Sec. 63. 
 
 Nelson vs. Cushing, 2d Cushing, 527. 
 
 State vs. Toledo, 23 Ohio Cir. Ct., 327. 
 
— 29 — 
 
 It also authorized and enjoined on this Board of Trust, when so 
 incorporated, to seek and, if possible, find a founder or builder who 
 would supply the necessary funds to accomplish its objects. It had 
 prescribed a million dollars as the amount desired, and a half million 
 dollars as the minimum amount upon which it could be founded or 
 begun. 
 
 In pursuance of this authority and injunction, the Board of Trust 
 at first sought this founder and funds necessary to its project among 
 the cooperating Annual Conferences and the mem.bers of the Metho- 
 dist Episcopal Church, South. In this efifort they succeeded in raising 
 but a fraction of the minimum amount required, and that fraction 
 rested only in promises. Possibly those promises or subscriptions 
 were not binding or, in law, collectible, until the minimum required 
 had been procured. They had about despaired of success from this 
 source when Mr. Vanderbilt made his first donation of not less than 
 half a million dollars, the full minimum required; and directly after¬ 
 wards doubled the amount, thus making the full endowment called 
 for by said Memphis resolutions. 
 
 With these funds so donated by Mr. Vanderbilt, and a compara¬ 
 tively small amount contributed by citizens of Nashville, in order to 
 secure a particular location of the institution, the Board of Trust pro¬ 
 vided a campus, buildings, outfit, and endowment for the University. 
 Such amounts as they realized from antecedent subscriptions were 
 subsequently devoted to the so-called ‘'sustentation fund," foi defray¬ 
 ing personal expenses of students attending the theological department 
 of the University. 
 
 Then, so far as money was concerned, it was Mr. Vanderbilt, and 
 not the church, who breathed life into this corporate body, if not dead, 
 at least, until then, inert and powerless. Hence, on this issue we find 
 that Mr. Vanderbilt, and not the Annual Conferences nor the church, 
 was the founder and original patron of this institution. 
 
 THE RELATION OF THE CHURCH TO THE UNIVERSITY IS 
 ONE OF COOPERATION AND NOT ONE OF OWNERSHIP 
 
 Nevertheless, in so far as their provisions are valid and legal, he 
 founded the institution upon the plans and specifications or so-called 
 “articles of foundation" contained in the Memphis resolutions, except 
 so far as he saw fit to append other legal conditions to his gifts. He 
 did impose on these gifts some conditions which modified to some 
 extent these Memphis resolutions, the chief of which was that Bishop 
 
— 30 — 
 
 McTyeire, through whom the gift was communicated to the corpora¬ 
 tion, should be made president for life, at a fixed salary and the use 
 of a dwelling house free of rent; that as such president he, and possi¬ 
 bly his successors in office, should have a veto power over the acts 
 of the Board of Trust, the legality and validity of which is open to 
 very serious question; and that the University should be located in or 
 near Nashville. It will thus be seen that they did not supplant the 
 main body of the Memphis resolutions, but were engrafted thereon. 
 Whether the seventh and ninth of these resolutions do not attempt an 
 unwarrantable and illegal interference with the normal and legitimate 
 powers of a Tennessee corporation and its governing body of directors 
 or trustees presents a very serious question, but is not in issue here, 
 and for that reason not discussed and decided. 
 
 The petitioners for this charter were incorporated as a Board of 
 Trust or Trustees. Trustees for what purposes and trust? Originally 
 to administer this charity, as planned by the Memphis convention, or, 
 in the language of the resolutions, for “the carrying out of this whole 
 scheme . . . with power to solicit and invest funds . . . and 
 to do whatever is necessary for the execution of this scheme.’’ This 
 trust was recognized by incorporating in the charter these resolutions 
 in full; also by describing therein the petitioners or Board of Trust 
 as representatives of the several Annual Conferences from which 
 they came. The law, as well as their charter, imposed upon them the 
 further trust of holding such real estate and personal property as they 
 may receive by contract, gift, will, or devise “for the purposes of said 
 corporation, with all the lawful conditions imposed by the donor.” 
 
 A charitable corporation is in itself a trustee, and its charter con¬ 
 stitutes a declaration of trust. 
 
 2 Morawetz on Corp., Sec. 1046, cited in Church vs. Hinton, 92 
 Tenn., 188. 
 
 In Perry on Trusts, cited above, it is said: “The trustees of a 
 charity frequently procure an act of incorporation, in order to carry 
 out the intention of their donor with more convenience.” 
 
 In Nelson vs. Cushing, supra, where trustees, appointed by will 
 for the establishment of a free school, had become incorporated, the 
 court said: “This act, in our judgment, does not vai*}^ the powers or 
 the duties of the trustees, or change the character of the school placed 
 under their management. It enables them to act in a corporate name 
 and to have a corporate seal, and it affords them the facility of tak¬ 
 ing conveyances, obligations and securities in their corporate name. 
 
— 31 — 
 
 and avoids the necessity of changing such securities upon a change 
 of individual members composing the board/^ 
 
 In State vs. Toledo, supra, a corporation had been formed for the 
 purpose of carrying out a trust founded’ by one Scott, and the court 
 held that “a person establishing an institution of learning of such a 
 character and for such purposes as he deems proper, and such as he 
 deems useful and beneficial to his fellow men, has a right to place 
 such restrictions, or conditions, upon the trust which he creates as he 
 sees fit; and the act of incorporation, while made under general laws 
 for the purposes of carrying out the trust, is subordinate and sub¬ 
 sidiary to such trust. The purposes and objects of the donation must 
 govern the institution, unless by some act of those who ha'\’^e power 
 over the fund some change is made. The legislature has no inde¬ 
 pendent power to change, or alter, the trust.” 
 
 This brings us to the consideration of the eighth of the Memphis 
 resolutions. We find in it nothing that contravenes the express pro¬ 
 visions or policy of the law. It is in furtherance of the general ob¬ 
 jects and purposes of this corporation as expressed in its charter and 
 the petition therefor. 
 
 Then what was the effect upon the constitution of the Board of 
 Trust of this eighth of the Memphis resolutions: ^‘That provision be 
 made in the charter for giving a fair representation in the manage¬ 
 ment of the University to any Annual Conference hereafter co¬ 
 operating with us?” With us? With whom? Not the Annual Con¬ 
 ferences, from whom the delegates came, for they were not bound by 
 the convention’s action, and might not, any or all, cooperate in this 
 enterprise. Therefore “with us” means primarily the convention which 
 was speaking, and ultimately the Board of Trust—the corporation— 
 the University itself, the sole survivor and heir of that convention. 
 What “Annual Conferences, hereafter cooperating with us?” Not 
 merely those which were not then represented in the convention, but 
 any Annual Conference, whether there represented or not, which rati¬ 
 fied the action of the convention, and thereafter would cooperate with 
 the Board of Trust in “the carrying out of this whole scheme.” This, 
 then, calls for giving a “fair representation in the management of the 
 University to any and all conferences hereafter cooperating,” thereby 
 recognizing that none were at the present time bound to do so. 
 
 This scheme was not conditioned upon the ratification of the con¬ 
 ferences. The very first resolution was to the effect “that measures 
 be adopted looking to the establishment, as speedily as practicable, of 
 
—32 
 
 
 an institution of learning/' etc., and the sixth provided “that the carry¬ 
 ing out of this whole scheme is hereby committed to the following 
 persons”—to wit, the Board of Trust named—who shall take imme¬ 
 diate steps to carry it out; and this eighth resolution does not con¬ 
 template ownership of the institution by the conferences, but merely 
 cooperation by them—“with us,” the Board of Trust, the University 
 itself; and, in return for such cooperation, each conference should 
 have a fair representation in the management of the University—that 
 is to say, on the Board of Trust. The second resolution, “that the 
 institution shall be called the Central University of the Methodist 
 Episcopal Church, South,” does not necessarily mean ownership of 
 the University by the church. If it stood alone in might imply as 
 much, but, in connection with the other resolutions, it is intended mere¬ 
 ly to define the character of the institution, and invite the affiliation 
 and influence of the church. Such, too, was the purpose of the fifth 
 resolution, as to its location by the Bishops, and the ninth, as to the 
 relation of the Bishops to the University. The effect of the latter 
 resolution will be hereinafter more fully noticed, in connection with 
 another matter. 
 
 The charter expressly provided that the Board of Trust “shall 
 make all by-laws necessary and proper to carry out said reso¬ 
 lutions.” The Board properly construed this “fair representation” to 
 mean equal representation; and originally provided for it by By-law 
 No. 2, allowing to each conference four members on the Board. The 
 number was subsequently reduced, first to two, and finally to one, 
 from each. Originally they provided that the conferences should name 
 their representatives, and the Board would elect. Then for very good 
 reasons, wisely suggested by Bishop McTyeire, they reversed this rule, 
 and provided that the Board should elect, subject to confirmation by 
 the conferences. They excluded members from conferences repre¬ 
 sented in the Memphis convention and the charter but failing after¬ 
 wards to ratify and cooperate. One such conference subsequently 
 approved and named representatives, who were then admitted to mem¬ 
 bership. They also admitted members from one cooperating confer¬ 
 ence not represented in the convention and charter. They reduced 
 the terms of members from life to eight years. At first the whole Board 
 was made up of representatives of the several conferences. Then, 
 as these representative members were reduced in number, others were 
 admitted, who did not represent, and were not named or confirmed 
 by the conferences. All of these changes were originated and made 
 
-~ 33 — 
 
 by the Board; but most of them—at least the more radical ones, affect¬ 
 ing the representation of the conferences—were submitted to and ap¬ 
 proved by the conferences. This arrangement, from the first, was re¬ 
 ferred to by the conferences as a contract, and usually by the Board 
 as a by-law relation between the parties. We think both were right, 
 and that it amounted, in fact, to a trust relation between them. 
 
 The relation, both by the Memphis resolutions and the practical in¬ 
 terpretation thereof by the parties, was not that of ownership by the con¬ 
 ferences, but of cooperation with the University and fair representa¬ 
 tion in its management. What this fair representation should be, con¬ 
 sidering the best interests of the University, was, from time to time, 
 settled and fixed by mutual agreement. Neither party was at liberty 
 to violate these agreements. 
 
 Finally, in 1898, this relation between the Annual Conferences 
 and the University was by mutual consent terminated, and the General 
 Conference of the whole church was substituted to the rights and 
 privileges theretofore enjoyed by the Annual Conferences. It was 
 agreed between the General Conference and the Board of Trust 
 that the Board should elect, and the General Conference con¬ 
 firm, all members of the Board. This arrangement was entirely 
 consonant with the original plans and purposes of the corporation, 
 and with the Memphis resolutions. It was merely an acknowledgpnent 
 of the underlying principle that the church should cooperate with the 
 University and have fair representation in its management. In this 
 way this relation was to be extended from a part of the Annual Con¬ 
 ferences theretofore cooperating to the General Conference, composed 
 of delegates from and having jurisdiction over all Annual Conferences 
 and the church at large. The by-laws of the University and the prac¬ 
 tice of the parties were conformed to that agreement until 1910 when 
 this controversy arose. Then both parties—the General Conference 
 first and the Board afterwards—undertook to repudiate that arrange¬ 
 ment without consent of the other, and each asserted the right to elect 
 members independently of the other. Unless controlled by Act of 1895, 
 Ch. 6, hereafter to be noticed, that agreement could no more be ig¬ 
 nored or violated by the parties thereto than those formerly existing 
 between the Annual Conferences and the University. 
 
 The power of this corporation to enter into such agreements and 
 pass such by-laws appears to be expressly given by the charter; but, 
 if not, it is so consistent with the charter and its declared purposes and 
 objects that it may be well implied. 3 Thomp. on Corp., 2d Ed., Secs. 
 2108-2112. In Sec. 2112 it is said: ^‘When an express power is 
 
granted to do a particular act or to engage in a stated business, this 
 carries with it by implication the right to do every act which may be 
 found necessary to give effect to the power expressly granted. On this 
 principle every corporation, at least in the absence of restrictive lan¬ 
 guage, possesses the powers found necessary, not only to its existence 
 and self-preservation, but, as already said, to powers expressly granted, 
 or to effectuate the purposes and objects of the incorporation.” 
 
 The by-laws of a corporation must be consistent with the spirit 
 and terms of the corporate charter, and, when such a by-law is adopted, 
 it becomes, while in force, as much a part of the law of the corpora¬ 
 tion as though its provisions had been a part of the charter. When a 
 by-law enters into a compact between the corporation and its share¬ 
 holders, it is in the nature of a contract between them, and is not 
 revocable to the prejudice of the shareholder. So, too, a by-law of a 
 nonstockholding corporation, which enters into, or constitutes, a con¬ 
 tract or declaration of trust between that corporation and its bene¬ 
 ficiaries, cannot be repealed so as to deprive the parties of their rights 
 under such contract or declaration of trust. 
 
 See 5 Am. & Eng. Ency. Law, 2d Ed., 88, 91, 95; Kent vs. Quick¬ 
 silver Mining Co., 78 N. Y., 179; i Thomp. Corp., Sec. 1017; Mat¬ 
 thews vs. Associated Press, 136 N. Y., 333; i Cook Corp., Sec. 4-a 
 and notes. 
 
 THE BISHOPS DO NOT POSSESS VISITORIAL POWER 
 
 We will next inquire into the effect and operation of the ninth 
 of the Memphis resolutions: “That the Bishops of the Methodist 
 Episcopal Church, South, be, and are hereby, requested to act as a 
 Board of Supervision of the University, or any of its departments, 
 and, jointly with the Board of Trust, to elect officers and professors, 
 and prescribe the course of study and plan of government.” 
 
 It is claimed by complainants that this vested in the College of 
 Bishops the common law right of visitors over this corporation. At 
 common law, this visitorial power was a property right, belonging to 
 the first donor and founder of a charity, and arose by implication from 
 the gift, or it might be vested by him in his appointee. There is no 
 claim in this case that the Bishops were donors to, and founders of, 
 this charity, and hence no such right can arise on that ground; but 
 it is said that they were appointed by the founder to be the visitors. 
 As we have already said, the founder of this charity, by gift of its 
 endowment, was C. Vanderbilt, and he did not appoint the College of 
 
— 36 — 
 
 Bishops visitors. If he appointed any visitor, it was a limited appoint¬ 
 ment of Bishop McTyeire (and possibly his successors in office), who 
 was, as a condition of his gift, made president of the Board for life, 
 with veto power over its action. Whether this was a lawful condition 
 or an unwarranted interference with the power and authority of the 
 directors of a Tennessee corporation, it is not necessary in this case 
 to inquire or decide. The condition was made, and complied with, 
 and by the death of Bishop McTyeire has been treated as terminated. 
 Whether this is so is not an issue here. 
 
 But it is insisted that, by providing the plan or ‘‘articles of foun¬ 
 dation,’’ the Memphis convention, or the Methodist church, founded 
 this institution, and by this ninth resolution appointed the Bishops 
 visitors, and it may be asserted that Mr. Vanderbilt, as founder, 
 adopted this appointment, if such it was. Let us inquire into the mean¬ 
 ing and effect of this resolution. As to what, if any, relation other than 
 that of visitors is created between the College of Bishops and the 
 corporation, it is not necessary to decide, as no issue of that kind is 
 made in this case. Hence we limit the inquiry to the question as to 
 whether it vested in the College of Bishops this common law visitorial 
 power. 
 
 By Act of 1857-8, Chapter 32, certain persons named were granted 
 a charter and incorporated under the name and style of “The Board 
 of Trustees of Central University of the General Conference of the 
 Methodist Episcopal Church, South.” Several of those named therein 
 as incorporators were also members of the Memphis convention; and 
 it is asserted by both parties to this case, and seems altogether prob¬ 
 able, that the committee of that convention who drafted its resolutions 
 had before it as a precedent this Act of 1857-8. Section 2 thereof pro¬ 
 vides: “That the General Conference of the Methodist Episcopal 
 Church, South, shall have supervision over the above incorporated 
 Board of Trustees; they shall have and possess power of visitation, 
 and also power to fill vacancies in the Board by death, resignation, 
 or removal.” 
 
 A comparison thereof with this resolution is significant, in that 
 both provide for “supervision” of the corporation, while the former 
 confers the additional power of “visitation” and “to fill vacancies in 
 the Board,” and the latter omits both. 
 
 The Act of 1857-8 thus makes a distinction between the power 
 of “supervision” and of “visitation.” 
 
— 36 — 
 
 That the Memphis resolutions adopted the one and rejected the 
 other can mean nothing less than an intention not to give the power of 
 '‘visitation/^ Moreover, we think the power of “supervision*’ is not 
 equivalent to and does not necessarily include that of “visitation." 
 The latter was probably omitted for the very good reason that it was 
 not pertinent to the corporation contemplated by the Memphis resolu¬ 
 tion. At common law the right of visitation vests only where the 
 persons interested in the charity were themselves incorporated and 
 not where disinterested trustees were appointed and incorporated to 
 administer the trust for the beneficiaries. 
 
 In the leading case on this subject it is said by Lx>rd Holt: “For it 
 is fit the members that are endowed and that have the charity bestowed 
 upon them should not be left to themselves (for divisions and contests 
 will arise amongst them about the dividend of the charity), but pursue 
 the intent and design of him that bestowed it upon them. 
 
 “Now, indeed, where the poor, or those that receive the charity, 
 are not incorporated, but there are certain trustees who dispose of the 
 charity, according to the case in lo Coke, there is no visitor; because 
 the interest of the revenue is not vested in the poor that have the 
 benefit of the charity, but they are subject to the orders and direction 
 of the trustees. But where they, who are to enjoy the benefit of the 
 charity, are incorporated, then, to prevent all perverting of the charity, 
 or to compose differences that may happen among them, there is by 
 law a visitorial power." 
 
 Phillips vs. Bury, 2 Term, R., 352. 
 
 In Green vs. Rutherford, i Vesey Sen., 471, Lord Hardwicke said: 
 “If the charity is not vested in the persons who are to partake, but in 
 the trustees for their benefit, no visitor can arise by implication." 
 
 A like rule is recog^nized in the Dartmouth College case, 4 Wheat, 
 563,565-6, 645,675-6. 
 
 Allen vs. McKean, i Sumn., 276, Fed. Cas., 229. 
 
 Sanderson vs. White, 18 Pick. (Mass.), 328. 
 
 In 2 Kent’s Commentaries (13 ed.), 300, it is said: “Where gov¬ 
 ernors or trustees are appointed by a charter, acording to the will 
 of the founder, to manage a charity (as is usually the case in colleges 
 and hospitals), the visitorial power is deemed to belong to the trus¬ 
 tees in their corporate capacity." 
 
 There is yet another reason why we think the visitorial power did 
 not vest in the College of Bishops. This ninth resolution did not 
 appoint the Bishops to anything, but merely requested them to act 
 
as a Board of Supervision, etc. Soon after the convention adjourned 
 the Board of Trust communicated this resolution, tog’ether with the 
 fifth in regard to locating the University, to the College of Bishops, 
 then in session, “with the view of obtaining an acceptance of the fore¬ 
 going official relation to the University.’^ The Bishops first con¬ 
 sidered a motion to decline the request outright, but on second thought 
 resolved: First, that they would locate the institution when the five 
 hundred thousand dollars shall be pledged for the enterprise; second, 
 “that by this act we are not to be understood as implying that the said 
 institution is to be considered connectional, to the damage of existing 
 colleges and universities. We can take no official relation to the Cen¬ 
 tral University that will discriminate between it and any and every other 
 institution of the church. Nevertheless, we feel free to give our de¬ 
 cided approval to the combination of the several Annual Conferences 
 represented in the convention in Memphis, or so many of them as 
 may agree together, acting through their respective bodies, in get¬ 
 ting up an institution of the highest grade;” and third, withholding 
 any opinion upon the subject of a theological department, about which 
 there was grave controversy among the churchmen. It does not appear 
 that the Bishops had any official relation to any other educational in¬ 
 stitution of the church, so that their acceptance, in this case, would 
 apparently operate as a discrimination in its favor. The Board (as 
 do we also), construed this answer of the Bishops as a declination of 
 all official relations with the University contemplated by that ninth 
 resolution. This is manifest from their reference to the Bishops’ con¬ 
 ditional promise to locate the University, and their significant silence 
 as to what the Bishops say about assuming no official relations to the 
 institution. 
 
 After Mr. Vanderbilt had endowed the University, and the Board 
 by means of his gifts had established it, the Bishops seemed to be 
 ready and willing to adopt the enterprise. All parties seemed to be 
 in doubt about what relation they bore to the institution. They as¬ 
 sumed and exercised very uncertain and fitful rights and privileges. 
 After a time the Board resolved to admit them as members ex officio, 
 and later rescinded that action and elected five of their number td 
 active membership. Not until after the so-called Vanderbilt Com¬ 
 mission had reported that they had no right to membership in the 
 Board, but that they held the right of visitation, were they heard to 
 claim such a right, or did they attempt to exercise it; and this was 
 nearly forty years after the charter was granted to the University, 
 
—38— • 
 
 and after they had, in the outset, declined all official relations to the 
 corporation. If there ever had been any merit in the claim we think 
 they had long since abandoned it. and were then estopped to assert it. 
 
 Whether this resolution invests them with legal power of any kind 
 we very much doubt, but, as hereinbeforre stated, the alleged visitorial 
 power is all that is here in issue, and for that reason we limit our de¬ 
 cision to that point. 
 
 THE CHURCH HAS NOT MAINTAINED AND PATRONIZED 
 THIS UNIVERSITY WITHIN THE MEANING 
 OF THE ACT OF 1895 
 
 We turn now to the consideration of the Act of 1895, Chapter 6, 
 entitled, ‘^A.n Act for the benefit of incorporated educational insti¬ 
 tutions.^^ 
 
 Section i empowers such institutions to acquire, receive and hold 
 property for educational purposes, without limit of amount. 
 
 Section 2 provides: “That, wherever any such educational institution 
 has been established, and is being maintained and patronized by, or, 
 having been otherwise established, is now being maintained and patron¬ 
 ized by, any religious society or denomination, or shall hereafter be so 
 established, maintained and patronized, the representative governing 
 body of such society or denomination shall have the power and au¬ 
 thority, at its option, to elect its board of directors or trustees, or fill 
 vacancies occurring therein, and, with the consent of such boards, to 
 increase or diminish the number of members thereof, as may seem 
 to such body best for the welfare and judicious management of the 
 institution; provided, that in case such governing body shall fail or 
 refuse to exercise the power given herein, then the vacancies shall be 
 filled as now provided by law.” 
 
 Section 3 authorizes the consolidation of two or more such institu¬ 
 tions. 
 
 Complainants claim that Section 2 of this Act authorizes and em¬ 
 powers the General Conference of the Methodist Episcopal Church, 
 South, at its option, to elect the Board of Trust, or fill vacancies there¬ 
 in, of Vanderbilt University. The defendants, upon several grounds, 
 deny this claim. They say that this Act violates Article 2, Section 17, 
 of the State Constitution, which provides that “no bill shall become a 
 law which embraces more than one subject, that subject to be ex¬ 
 pressed in the title.” 
 
 They further say that the title in this Act is so vague and indefinite 
 that it does not express or indicate the subject; and that the Act itself 
 
39 — 
 
 contains three distinct subjects, and hence is void. If this were an 
 open question, the writer of this opinion would regard it as very 
 serious, but in the case of State ex rel. Dodson vs. Washington & 
 Tusculum College (Mss., Knoxville, September Term, 1912), involv¬ 
 ing the validity or invalidity of an attempted consolidation of two 
 incorporated educational institutions under Section 3 of this Act, the 
 same attack was made on its constitutionality, and the court, by a 
 majority opinion, sustained the Act. 
 
 It is now said in argument that the case was decided on another 
 question, rendering it unnecessary to pass on the validity of this Act, 
 but that the court did hold the title sufficient; and that the point that 
 the Act contained more than one subject was not raised, discussed or 
 passed upon, and therefore is yet an open question. 
 
 It is true that the case turned principally upon another question, 
 but the decision of this question was not an improper or unnecessary 
 one in the case. The discussion of this act in the opinion is rather 
 meager, but the court states not only the title, but also the substance 
 of the act. It says its constitutionality is attacked upon several 
 grounds. It then refers particularly to the question raised on the 
 title and the subject expressed therein, and says: “The majority of 
 the court is of the opinion that the caption of the statute in question 
 does sufficiently express the subject of the legislation, and that, there¬ 
 fore, complainant’s contention must be overruled. The authorities 
 upon which the majority rest their decision on this subject are State 
 vs. Yardley, 95 Tenn., 516; State vs. Brown, 103 Tenn., 450; Furnace 
 Company vs. Railroad, 113 Tenn., 728; Scott vs. Marley, 124 Tenn., 
 390, and other cases in these cited and referred to.” 
 
 It is only fair to presume that both questions here made were 
 there made by counsel in that case and considered by the court, 
 although the second point is not particularly discussed by the court. 
 The one almost necessarily involved the other. Then we think that, 
 if the title to this act is sufficient, as was distinctly held in that case, 
 it is general enough to include all the provisions of this act. In State 
 vs. Yardley, supra, this court has said: “Generality of title is not 
 objectionable so long as it is not made to cover legislation, incongru¬ 
 ous in itself, or which, by fair intendment, may not be considered as 
 having a necessary or proper connection with the subject expressed.” 
 Citing authorities. 
 
 We therefore think that this objection to the act is precluded by 
 these authorities, and we overrule it. 
 
— 40 — 
 
 Defendants also contend that this university does not come within 
 the purvdew of this statute. That is to say, that it had not been estab¬ 
 lished, and was not being maintained and patronized by, or, having 
 been otherwise established, was not being maintained and patronized 
 by, any religious society or denomination (particularly the Methodist 
 Episcopal Church, South,) within the meaning of this act, at the time 
 of its passage, or thereafter, and particularly at the time the General 
 Conference undertook to elect its trustees, and hence it was not sub¬ 
 ject to the operation of this act. 
 
 The most significant terms of this act are defined by the Standard 
 Dictionary as follows: 
 
 ‘‘Establish—To settle or fix firmly; place on a permanent footing; 
 settle securely, as in a business; found.” 
 
 “Maintain—To support; to supply with means of support; provide 
 for; sustain; keep up.” 
 
 “Patronize—To act as a patron; extend patronage; lend counte¬ 
 nance ; encourage; favor.” 
 
 “Patron—One who protects, countenances, or supports some per¬ 
 son or thing; one who habitually extends material assistance; a regu¬ 
 lar customer; a protector or benefactor.” 
 
 At common law, as applied to charities, such as universities, the 
 patron was the founder, the endower. 
 
 ''Patronum faciunt dos, aediHcatio, fundus (Black’s Law Diction¬ 
 ary) ; this is to say: Endowment, building and land make a patron. 
 So, in the leading case of Phillips vs. Bury, 2 Term R., 346, Lord Holt 
 said: “It is now admitted on all hands that the founder is patron.” 
 
 And again, in the Dartmouth College case. Judge Story said: “The 
 patron or endower is the perficient founder.” 
 
 From these various definitions it will be seen that to establish, to 
 maintain, to patronize, mean, in short, to found and support. Now, 
 did the church establish—found—this University? We have already 
 answered this in the negative. 
 
 Has it maintained and patronized it ? In the sense of lending coun¬ 
 tenance, encouragement and favor, and being a regular customer, it has 
 undoubtedly patronized it. The University has drawn probably half 
 or more of its students from Southern Methodists, but its doors have 
 always been open to all, and many other denominations have, in this 
 sense, patronized it. If this were sufficient, a number of denomina¬ 
 tions might set up similar claims under this statute. This is clearly 
 not the maintenance and patronage contemplated by this Act. 
 
— 41 — 
 
 Has the M. E. Church, South, then, maintained and patronized 
 this institution in the more substantial and legal meaning of said 
 terms of providing the means of support, founding, endowing, sus¬ 
 taining? 
 
 To answer this question, let us again briefly review the facts. The 
 original eflfort to raise, by subscriptions from the conferences and 
 churches and their members, the endowment called for and required 
 was an acknowledged failure. Altogether, from the first to last, about 
 a hundred thousand dollars of subscriptions or promises were had 
 from these sources, of which about fifteen thousand dollars have been 
 realized, and the whole has been devoted to the '^sustentation fund,” 
 as hereinbefore explained. Outside of the Vanderbilt gifts and Nash¬ 
 ville’s contributions to the purchase of the campus, and about $23,000 
 from the same source for rebuilding after destruction by fire of some 
 of the buildings, there has been received at various times from the 
 church, churchmen and all other sources, excepting tuition and fees of 
 students, about $325,000 for specific purposes, such as endowing cer¬ 
 tain chairs or professorships, lecture courses and scholarships, most or 
 all in the theological department, and to enlarge that department, 
 without, however, relieving to any extent the general endowment 
 from allowances made therefrom to that department. Nothing from 
 these sources has been realized and applied to the general endowment 
 and support of the University in any of its other departments. Mr. Cor¬ 
 nelius Vanderbilt gave the original endowment of a million dollars, and 
 other members of the family subsequently added another million, 
 partly to pay expenses, but chiefly to add to the general endowment, 
 and this endowment has provided the blood, bones and sinews of this 
 body corporate, properly and justly called, after his first gift, “Vander¬ 
 bilt University.” 
 
 COMMODORE VANDERBILT’S GIFT THAT ESTABLISHED 
 THE UNIVERSITY WAS NOT PROCURED BY 
 OR THROUGH THE CHURCH 
 
 It is now claimed that the church is entitled to credit for these 
 Vanderbilt gifts. The original endowment was given by Mr. C. Van¬ 
 derbilt, through Bishop McTyeire, without solicitation, to the cor¬ 
 poration itself. It was not given to or through the church. Mr. Van¬ 
 derbilt was not a church man. At the time of his gift he must have 
 been acquainted with the charter, including the Memphis resolutions, 
 and the by-laws of the University. He made his gifts to the corpora¬ 
 tion by its corporate name. 
 
Vi' 
 
 :K 
 
 In Carson vs. Carson, 115 Tenn., 50, this court has said: “The de¬ 
 vise and bequest, being made direct to a corporation which is chari¬ 
 table, the trusts need not be set out so specifically and definitely as 
 if made to individuals, in order to make them valid. The reason is 
 that a corporation, organized for charitable purposes, has these pur¬ 
 poses and trusts set out in its charter and articles of foundation, so 
 that the trusts are thus made certain and will control, due deference 
 being paid to the directions of the' testator, if any are given, but no 
 trusts, in such case, need be declared, as they are set out in the charter 
 and articles of foundation. To illustrate, if a bequest bo made to the 
 Vanderbilt University, or Cumberland University, by name, the trust 
 to which the fund is to be applied need not be further specified by 
 the grantee, since these are well known charitable corporations, whose 
 objects, purposes and trusts are fully set forth in their charters and 
 other instruments of foundation.^^ 
 
 Hence, subject to the particular conditions imposed by him in his 
 deed of gift, his endowment was impressed by the trusts, specified in 
 the charter and by-laws of this institution. He knew that the Board 
 of Trust claimed, and in fact had, the right of self-perpetuation by 
 electing its own members, subject, however, to the condition imposed 
 by the by-laws, in pursuance of the Memphis resolutions, to the effect 
 that the conferences cooperating with the University should have a fair 
 representation in its management, to-wit: on its Board of Trust; and 
 doubtless relied upon that fact for the proper administration and appli¬ 
 cation of the endowment so provided, subject, of course, to such other 
 legal conditions as he imposed in his deed of gift. The same is doubt¬ 
 less true of the subsequent gifts by other members of his family. 
 
 Upon these facts we hold that the church cannot properly lay 
 claim to the Vanderbilt gifts as coming from it. 
 
 COMMODORE VANDERBILT WAS THE FOUNDER AND HE 
 AND HIS FAMILY HAVE “MAINTAINED AND 
 PATRONIZED” THIS INSTITUTION 
 
 From the time of these gifts until this present controversy arose, 
 and the report of the Vanderbilt Commission was made, not only the 
 University and its Board of Trust, but the church at large, its Bishops, 
 conferences and members recognized Mr. Vanderbilt as the founder, 
 the patron, of this institution. His birthday was early declared to be 
 Founder’s Day, and was ever afterwards celebrated as such. The 
 
43- 
 
 present claim that the church was the founder first took form, if it 
 did not originate, with the report of the Vfeinderbilt Commission. We 
 repeat our holding that Mr. Vanderbilt, and not the church, was the 
 true founder and patron of this University, and now further hold that 
 he and his family, by their endowments, have maintained and patronized 
 this institution in the true and proper sense and meaning of those 
 terms, and that, therefore, this University does not come within the 
 purview and operation of this statute. 
 
 THE ACT OF 1895 DOES NOT APPLY TO EDUCATIONAL 
 INSTITUTIONS INCORPORATED UNDER 
 THE ACT OF 1871 
 
 There are yet other reasons to support this view. It must be re¬ 
 membered, as we have heretofore held, that this Board of Trust are 
 not only the directors, or trustees, of this corporation, but also the in¬ 
 corporators themselves. By their charter and the Code, Section 1471, 
 hereinbefore quoted, they are authorized, as members of the corpora¬ 
 tion, to fix the number of trustees, the officers, etc., and, under this 
 authority, they might have fixed the number of trustees or directors 
 at less than their whole body, buit not less than the minimum number 
 required by statute (at present, not less than five nor more than thirty- 
 three. Act of 1889, Chapter 181, Shannon's Code, Sec. 2520); but, as 
 their whole body did not exceed the maximum allowed by law, they 
 all chose to act as directors or trustees. This, however, cannot affect 
 their character as incorporators, nor can they be deprived of any of 
 their rights as such by dealing with them as directors or trustees. 
 .This act deals only with the election of directors or trustees, and not 
 members of the corporation. 
 
 It was not intended to apply to corporations like this, but rather to 
 such as are organized under Act of 1875, Ch. 4*2, Sec. 2 (or similar 
 acts), which provides: 'Tf said corporation is organized as a literary 
 or educational institution, under the patronage of any Christian or 
 Jewish denomination, the corporation shall have the power to increase 
 the number of directors or trustees; to regulate the mode aand manner 
 of appointment of the same, on expiration of terms of service; to 
 regulate the number, duties and manner of election of officers, either 
 actual or ex officio; to appoint executive agencies; and to pass all other 
 by-laws for the government of said institution, as may be required by 
 the denomination establishing the same, provided said by-laws are not 
 inconsistent with the Constitution and laws of this State." 
 
Such was the case of Southwestern Presbyterian University vs. 
 Presbyterian Synods of Tennessee, decided by this court at Nashville, 
 March 31, 1905, referred to by complainants as authority for their 
 contentions in this case. In that case the University was chartered 
 under the last Act mentioned, and as an institution under the pat¬ 
 ronage of the Presbyterian Church in the United States, and in pur¬ 
 suance of a certain plan of union entered into by certain synods of 
 that church, for the purpose of establishing, maintaining and patroniz¬ 
 ing said university. This court, in its decree, decided: “That the 
 said university is under the patronage of the Presbyterian Church 
 in the United States, and that, in this relation of patronage, the said 
 synods of Tennessee, Mississippi, Louisiana and Alabama act for said 
 church, and, for it and in such capacity, have the right to elect, each, 
 two directors of the said university corporation, according to the plan 
 of union adopted by the synods originally cooperating in the establish¬ 
 ing of said Southwestern Presbyterian University, which provided 
 in substance, that the government of the university shall be in the 
 hands of the directorate, consisting of two members from each synod, 
 one elected each year after the first; and that, therefore, the trustees 
 or directors of the said university have no power or authority to select 
 their successors and perpetuate the said board, regardless of the will 
 and desire of the said synods, as hereinbefore stated; and that the 
 trustees and directors are rightfully to be selected, or chosen, in ac¬ 
 cordance with the customs and by-laws of said university, adopted 
 in pursuance of said plan of union, and in practice before the 21st of 
 June, 1904, when this bill was filed.” 
 
 The case seemed to turn more upon the construction of the char¬ 
 ter, and the plan of union upon which it was based, than upon this 
 Act of 1895 in question, but the decision might well be supported by 
 that Act. The case, however, is not controlling, or, indeed, applicable 
 to the facts in the case at bar. This case at bar would be quite different 
 if the university were chartered under the Act of 1875, or if, as con¬ 
 tended by complainants’ counsel, its charter could be construed so as 
 to make the Annual Conferences in the first instance, and after¬ 
 wards the General Conference, as their sole assignee and successor, 
 the incorporators of this institution, and the Board of Trust merely 
 its directors or trustees. In that event, however, as is well said by 
 defendants’ counsel, they would have no need to appeal to the Act of 
 1895 for authority to elect members of the board of directors or trus¬ 
 tees. They would already have that power, as did the synods in the 
 
- 45 — 
 
 Southwestern Presbyterian University case, by virtue of their charter. 
 This case is more like that of State ex rel. Duncan vs. Martin Female 
 College, decided by this court at Nashville, February 26, 1888, referred 
 to by both parties as authority for their respective contentions. In 
 that case it appears that the testator, Thomas Martin, in 1870, had be¬ 
 queathed a fund “to the officers of the Methodist Episcopal Church, 
 South, established in the town of Pulaski,’’ to be used “for the purchas- 
 ing of grounds, and erecting suitable buildings for a female school.” 
 The officers of the local church met and accepted the bequest, and, in 
 conformity with the procedure prescribed by the Code of 1858, elected 
 trustees to procure a charter, and a charter was accordingly procured. 
 The charter, among other provisions, contained the following: 
 
 “Item 3. The trustees herein named shall hold their offices until 
 their places become vacant by death, resignation or removal from the 
 county, or removal by the board for cause; and any vacancy occurring 
 shall be filled by the board at a regular meeting from nominations made 
 by the officers of the said Methodist Episcopal Church, South, estab¬ 
 lished at Pulaski; that is to say, by the present officers and their suc¬ 
 cessors of the Methodist Episcopal Church, South, now established 
 at Pulaski, and by whom the present trustees were elected.” 
 
 The insistence of the bill in that case was that this church was under 
 the control of the quarterly conference and of the Tennessee Annual 
 Conference, and that the charter as taken out had denied this right. 
 It also appears that for many years the school was regularly reported 
 to the Tennessee Conference as a church school and an endowed insti¬ 
 tute belonging to the conference; and its President was “appointed,” 
 that is to say, being a minister of that conference, was assigned by the 
 conference to that position. The issue for decision in the case was 
 whether this school corporation was under the control of the church, 
 or rather the Tennessee Annual Conference representing the church, as 
 an ecclesiastical body. The court decided and decreed: “That there is 
 nothing in the will of Thomas Martin, or in the charter of Martin 
 Female College, or in the resolutions of the officers of the Methodist 
 Episcopal Church, South, at Pulaski, invoking and putting said charter 
 into existence, which requires or contemplates that the female school 
 founded thereunder should be under the dominion, control, or direction 
 of the Methodist Episcopal Church, South, through its annual or quar¬ 
 terly conference or otherwise, or under the dominion, control, or direc¬ 
 tion of any religious denomination or sect whatever; that it was not 
 the object of Thomas Martin, by his will, to place the school founded 
 
-46 
 
 thereby under the control of the local officers of the Methodist Episcopal 
 Church, South, at Pulaski, as a church organization and in a church 
 capacity, but said officers were designated as a body of individuals who 
 were to inaugurate such school in conformity with the will of said 
 Thomas Martin, by invoking and putting on foot a corporate organiza¬ 
 tion with the proper founding, establishment and subsequent control 
 and management of said school, which they did in the incorporation of 
 Martin Female College; and that the charter of said college is in con¬ 
 formity with said will, and not in conflict with same.’’ See the citation 
 of this case in Johnson vs. Johnson, 92 Tenn., 567. 
 
 This case app>ears to be authority for the following propositions: 
 That the local officers of the Methodist Episcopal Church, South, at 
 Pulaski, not as a church organization or in a church capacity, but as a 
 body of individuals, were members of this corporation by virtue of their 
 charter and the provisions of the Code under which it was granted, 
 and as such were entitled to name the trustees or directors of the cor¬ 
 poration; that the charter proceedings, although had under the Code 
 provisions which expressly allowed representative incorporation, incor¬ 
 porated them as natural persons and not the church of which they were 
 officers; and that the court, in order to determine the purpose and plan 
 of government of the charity, will look to the articles of foundation. 
 
 Our view of this matter, to-wit, that this statute does not apply 
 to this particular corporation, is reinforced by the common understand¬ 
 ing and conduct of all the parties. Notwithstanding the fact that this 
 Act was passed in 1895, yet the Annual Conferences cooperating with 
 the University up to 1898 made no claim of right or power, under this 
 statute, to elect members of the Board of Trust of Vanderbilt Univer¬ 
 sity. In 1898, in the memorial addressed by the Board of Trust to the 
 General Conference, it was said: “By the charter of the University the 
 Board of Trustees is vested with the power and obligation to fill its 
 own vacancies, but the election of any member is not valid, under the 
 law of the University, until said member has been confirmed by the 
 conference which he is designed to represent. Under the new plan the 
 Board would be at liberty to select its members without geographical 
 restrictions of any kind and the General Conference would confirm or 
 1 eject the appointment.” 
 
 In accepting the proposal of the University through this memorial, 
 the General Conference resolved: “That the General Conference of the 
 M. E. Church, South, hereby accepts the proposed relation and control 
 of the Vanderbilt University, and commits to the General Board of 
 
47 — 
 
 Education the confirmation of all trustees elected by the Board of Trust 
 of Vanderbilt University/' It asserted at that time no claim of right 
 under the act in question to elect these trustees, and at no time subse¬ 
 quent, until after this controversy arose and the Vanderbilt Commission 
 had made its report. Here were twelve years of acquiescence in the 
 former relation existing between the University and the conference, 
 and thereby an acknowledgment and tacit admission that this University 
 did not fall within the provisions of this Act of 1895. 
 
 AS TO THE CAUSE OF THE CONTROVERSY 
 
 \ 
 
 In fact, at the time this controversy culminated in the election by the 
 General Conference of three members of the Board upon the assertion 
 of its exclusive right to do so, this action appears to have been taken, 
 not from a dissatisfaction with the former relation existing between the 
 General Conference and the University, but merely to force and test the 
 issue as to its exclusive right to elect members-of the Board; for at the 
 same time it adopted a resolution to the effect: “That, following this 
 election, the General Conference will, for the future, continue the 
 method of choosing the trustees adopted by the General Conference held 
 at Baltimore in 1898, when it committed to the General Board of Edu>- 
 cation the confirmation of all trustees (elected) by the Board of Trust 
 of Vanderbilt University." This rather indicates that the real quarrel 
 or controversy between these parties was not, in fact, upon this issue. 
 
 Other objections are made by the defendant to this Act of 1895, but 
 in the view which we have taken of this case, it is not necessary to take 
 further notice thereof. 
 
 SUMMARY OF COURTS CONCLUSIONS 
 
 From the foregoing conclusions, it results that in the opinion of this 
 court the relations maintained by the University with the Annual Con¬ 
 ferences from its birth to 1898, and afterwards with the General Con¬ 
 ference to 1910, were their proper and legal relations, under the charter 
 and by-laws of the University and its contracts and agreements with 
 the conferences; and that the General Conference in 1910, when it un¬ 
 dertook to elect members of the Board of Trust, was not acting within 
 its rights, and its appointees are not entitled to seats in that Board; that 
 the action of the Board of Trust, in rescinding its existing by-laws and 
 electing members independently of the General Conference, was like¬ 
 wise unauthorized, except upon the assumption that the General Con¬ 
 ference had surrendered its relation of cooperation with and represen- 
 
- 48 - 
 
 tation in the Board of Trust. We think that the General Conference 
 did not mean to do this, or to abandon any part or right it had in the 
 management of the University; but was asserting a right to more than 
 it was entitled to. ‘Tf one party to the contract claims, as contract 
 rights thereunder, more than he is given by the contract, such claim 
 does not of itself amount to a renunciation of the contract.” 3 Page 
 on Contracts, Sec. 1439, and cases cited. Of course, at any time, if it 
 should voluntarily surrender, or renounce, this relation, or contuma¬ 
 ciously refuse to confirm members elected, and cease to cooperate with 
 the University, its rights to representation in its Board of Trustees and 
 in its management would as a consequence cease; and, in that event, 
 the Board of Trust could proceed, independently of the General Con¬ 
 ference, to the election of members to fill vacancies in its own body. 
 
 We are further of opinion that the inherent power of the Board of 
 Trust to fill vacancies in its own body authorizes it to elect and install 
 members to fill such vacancies, and that such new members are entitled 
 to their seats on the board ad interim, until such time as they may be 
 rejected by the General Conference, or its General Board of Education, 
 acting for it and under its authority. It has the right to keep its mem¬ 
 bership full, and cannot legally divest itself of that power and duty, 
 except conditionally upon the refusal of the General Conference to 
 confirm its appointees. The rejection of such member or members 
 by the General Conference would at once create a vacancy to be again 
 filled b}^ the Board, subject to the like conditions. 
 
 We therefore conclude that the relators, Messrs. Harris, Godbey and 
 Biggs, are not entitled to membership in the Board of Trust; that the 
 defendants. Waller, Robins and Jackson, are entitled to such mem¬ 
 bership, subject to the action of the General Conference, or its General 
 Board of Education, to whom it has committed the duty of confirm¬ 
 ing or rejecting the members elected by the Board, and that they are 
 entitled to act as such members until such time as they may be rejected 
 by that conference or Board. Since their election has not been so 
 rejected, they cannot be ousted under this proceeding from their seats 
 in the Board of Trust. It results, therefore, that the Chancellor’s de¬ 
 cree will be reversed, and the complainants’ bill be dismissed at their 
 costs. 
 
 Let decree be drawn accordingly. 
 
 W. R. Turner, Special Judge. 
 
 Petition for Rehearing dismissed x^pril 2, 1914.