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|+Memorandum regarding the Titles of the University Property 关于大学财产所有权的备忘录
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|WEST CHINA UNION UNIVERSITY
1940

MEMORANDUM

regarding

THE TITLES OF THE UNIVERSITY PROPERTY

September 12, 1940

The following Memorandum is designed to cover only the position of the University as incorporated under the Regents of the University of the State of New York, and their power to hold property, whether in the United States or elsewhere, particularly in China; it does not touch on the present condition of affairs, by which the United Church of Canada holds the property in Trust for the Board of Governors and the cooperating units; rather it is intended to afford material for ascertaining by what method the Trusteeship now held by the United Church can be transferred to the University itself.

The following represents the terms of the Provisional Charter, which Charter is now absolute.

THIS INSTRUMENT WITNESSETH that the Regents of the University of the State of New York have granted this provisional charter incorporating

Rev. Austin K. De Blois, Rev. Joseph Beech, Rev. James Endicott, Vincent Massey, Rev. Canon E. Price Devereaux, James Edmund Clark, Rev. Cyril C. B. Bardsley, Rev. John Franklin Goucher, Mornay Williams, William North Rice, Rev. Richard Finch Bowles, Ross A. Hadley, Rev. F. Baylis, Henry T. Hodgkin, Michael Sadler, William O. Gantz, Rev. Emory William Hunt, Rev. James Henry Franklin, H. Wilson Harris, T. R. W. Luntz, Rev. Frank Mason North, James Wood, Newton W. Rowell, George Vaux, Jr., Rev. Frank Anderson,

and their successors and associates as a university for the elementary, secondary and higher education of youth in China, under the corporate name of "West China Union University", to be located at Chengtu, in the province of Szechwan, China, with the principal office to be located in the Borough of Manhattan, in the City, County and State of New York, with twenty-five trustees who shall be known as the Governors of the University, to be at first the persons named herein as incorporators, to hold in the order of their naming, eight until the annual meeting of the University in the year 1922, eight until the annual meeting in 1923, and nine until the annual meeting in 1924 and until their successors shall be chosen by the members of the corporation each year in place of those whose terms expire within that year, one from the American Baptist Foreign Mission Society, one from the Friends Foreign Mission Association, Great Britain and Ireland, one from the General Board of Missions of the Methodist Church of Canada, one from the Board of Foreign Missions of the Methodist Episcopal Church, one from the Church Missionary Society, and the remainder from the Board of Governors of the University as it may be constituted from time to time, and to hold office for terms of three years each with power in them to increase or decrease its membership in such manner and upon such terms as shall be provided for by the general rules of its trustees, with power in them from time to time by unanimous vote of their full board to fix their terms of office and their number to be not more than twenty-five nor less than five; and with the provisions that this charter will be replaced by an absolute charter authorizing the university to confer upon its graduates the usual degrees, subject to the restrictions 
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|and requirements of the University, if within five years the corporation shall acquire resources and equipment of the value of at least $500,000, available for its use and support and sufficient and suitable for its chartered purposes in the judgment of the Regents of the University and be maintaining an institution of educational usefulness and character satisfactory to them; and that until the granting of the absolute charter suitable degrees of The University of the State of New York will be conferred upon the graduates of the University who in the judgment of the Regents shall have duly earned the same.
GRANTED May 25, 1922, by the Regents of the University of the State of New York, executed under their seal and recorded in their office. Number 3126.

ADELBERT NOOT FRANK D. GRAVES

Vice Chancellor President of the University

Section 3 reads as follows: -

"The Board of Governors shall hold, either in the name of one or more of the participating Missionary Organizations, or as a corporate body on behalf of the University, all deeds of trust, endowments and other property of the University not otherwise provided for."

This does not in any way conflict with the terms of the Charter, as the twenty-five Trustees, who form the incorporated body, will always be members of the Board of Governors, and in this way the Board of Governors, which is a larger body, can hold property by means of a smaller incorporated body of its own members.

Extract from the Minutes of the Annual Meeting of the Board of Governors, May 15, 1940.

"(c) G-1403 - E-1433. Titles of University Property.

"The Secretary reported action of the Executive Committee on this matter as follows: -

'E-1433 VOTED (1) That Dr. Anderson, in cooperation with Mr. Langford, should be asked to proceed to a conclusion in the matter of clarifying the original position as between the Board of Governors and (a) the Society of Friends and (b) the Church Missionary Society.

'(2) That Dr. Garside's office should be asked to make a study of the present methods by which the property in Chengtu is held, the location of the deeds, and, specifically, what is covered by the original Declarations of Trust, and what, if any, is held by individual Mission Boards.

'(3) That the suggestion be further explored as to the wisdom of transferring the trusteeship from the Canadian to a United States Board.
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|"In connection with (1) above, the Secretary stated that Mr. Langford re- ported that the matter had not yet been brought to a conclusion.
"In connection with (3) the Secretary stated that the question had been raised as to whether the United Church of Canada is authorized, under its Act of Incorporation, to act in the capacity of a Trustee, and that he had addressed an enquiry on the point to Mr. A. T. Whitehead, Barrister-at-Law and Secretary to the Legal Committee of the United Church, to which Mr. Whitehead had replied as follows: -

'You have asked whether or not the United Church of Canada has the power to hold property in trust, and it is my view that it has not the power to act as a Trustee.'

"After some discussion it was

"G-1457 VOTED that the Secretary, Dr. Arnup and Dr. Cartwright be asked to set as a Committee to further investigate this last point raised, and re- port to the Executive Committee or the Board of Governors."

The following letter, dated July 11, 1940, was received by the Secretary from Dr. Cartwright: -

"We have enquired of the University of the State of New York concerning the question raised at the meeting of the Board of Governors of the West China Union University and I have in my possession an expression of judgment from Ernest E. Cole, Commissioner of Education for the State of New York. It reads as follows: -

'In my opinion, the West China Union University has the power to acquire real estate in China, in so far at least as the laws of this State are concerned. It seems to me that your real problem is whether or not it can acquire real property in China under the laws of China. Of course you under- stand that this is merely my opinion and it might be well for you to seek the advice of the attorneys who are handling the real estate transaction. So far as I have been able to find, there are no cases upon the question.'

"This seems to clear the matter from the standpoint of our own highest authority on this subject. If there is any further question from the attorneys in Canada, it will be necessary, I suppose, for 'the attorneys who are handling the real estate transaction' to secure a legal opinion through the above channel."

I referred the matter to Dr. Beech, sending him a copy of the above letter from Dr. Cartwright, and asking for his opinion. The following letter was received from him, dated August 20, 1940: -

"Thank you for your reply of August 16th and also for yours of July 19th with invitation to comment regarding the University right to hold property, etc. in China. I am not sure that I have anything definite to say beyond what has already been said when these matters have been before the Governors meetings, but in response to your invitation I venture the following comments: 
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|"(1) In using the term 'University' we should be quite clear if it refers to the 'Board of Governors of the University' and the property of this body, or if it implies the Board of Governors and the several Mission Boards and that also own property within the general term University. (See (5) below)
"(2) As to the Mission Boards or bodies, they have long since had rulings on that matter by their respective government officials in China. That right has been recognized - though often regarded as implying 'lease' for ninety-nine years or indefinite period, instead of the word 'sale'.

"(3) If the Board of Governors is a legal missionary body, I do not see the necessity of raising this question of the right of a missionary body incorporated in the State of New York, U.S.A. to hold property in China.

"(4) If there is any question as to the 'University', as that term is stated in the Articles of Incorporation, being a missionary body, I suggest that the whole question be referred to Ambassador Nelson T. Johnson, United States Embassy, Chungking, China, or to the United States Department of State, enclosing with the request for official opinion, (a) the Articles of Incorporation and (b) the opinion of Commissioner Ernest E. Cole, together with other legal opinions of the Board.

"(5) The property of the Woman's College requires definition. The Woman's College took over their present property from the Methodist Episcopal Mission or their Board of Foreign Missions. What is the status of the 'Woman's College' in this connection? Is it a legal entity of the 'University' as incorporated in New York and its property included in the 'University' holdings; if not, what is their legal status as a property holding body? They are not incorporated as the Woman's College.

"I do not raise this last question to bring it up for consideration by the Board of Governors, as that, in the first instance, concerns the Methodist Board and the Woman's College or the Mission Boards associated in the Woman's College. I state it to indicate the desirability of removing mis- understanding in our use of terms as legally defined.

"I am of the opinion that the Chinese Government will never deny the right of the University, the Board of Governors, or the Mission Boards co- operating in the University, to ownership of the 'University' property. But it is necessary for us all to know where ownership of it rests. Example:- If destroyed, and claim for compensation is made, who would make the claim or claims for the part or parts destroyed; example - the Woman's College? Etc .?

"May I suggest that the next Executive Committee meeting consider these aspects to understanding of our own terms and legal responsibilities. They are complex. If the Governors were holding trustees for all properties of the University - and the Governors as incorporated - a recognized legal church or missionary body - our situation would be far more clear, even if not simple."

It is, perhaps, natural to enquire how the other Christian Universities in China hold their property.

FRANK ANDERSON,

Secretary
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