The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1894-05-27
ELLERT IS RIGHT.
DR.. COgsWeIl's Demurrer
OVER uled.
Judge Hunt Decides That the PeopIe
May Sue TO Enforce Public
Trust.

Judge Hunt has overruled the demurrer In
terposed by Dr. II. D. COgswell and bis wife TO
the Injunction suit brought against them by
the People Of the State OF California upon the
relation OF Mayor i. r. Ebert.
The suit Is TO restrain the defendants from
interfering with a trust which they the mselves
created, the Cogsweli Polytechnic College. II
is charged that Dr.. Cogswell desires to declare
the trust impracticable. and, therefore abolish
it, and thar be has entered into conspiracy for
that purpose. Trustees have resigned from the
board and their vacancies have not been filed
aud the present action is TO decree that the de-
PENDANTS have violated their trust, to obtain a
permanent injunction against them and TO ap-
point receiver.
A demurrer was lnterpOSed by the defendants
on the ground that the people bad no legal
authority TO bring any such suit, and was not a
necessary party thereto. On this point Judge
Hunt decides: The deed IN question creates A
public charity. or rather a trust for a charitable
use In this State actions on the part of the
State must be brought IN The name of the peO-
pie OF the State
Ii was further claimed by the defendants
that the beuehciaries OF the trust were the
boys and girls of the State, and that any action
10 enforce it must be brought in their names.
Judge Hunt says:
at Will be observed that the bill charges
upon the founder OF the trust, Dr. Cogswell,
Inc determination TO destroy the trust, alleging
that he Is hostile 10 It's further continuance and
that he refuses to appoint successors of the
trustees who have resigned their trust. 1t also
charges him with conspiracy and with intent 10
destroy the trust and 10 recover the trust prop
eTty 10 his own use.
Under such circumstances il is manifest
that an action Of this character designed for
the eOnse walton OF the trust could not be MAIN
tanned In The name Of the founder, nor could 10
In he name OF the trustees. inasmuch as The
Two trustees associated with the founder are
alleged to have participated In the conspiracy
and shared in the design 70 destroy The trust.
III i tine that The trust was designed for he
benefit OF the boys and girls OF this state. but
an action 10 enforce such a trust could not be
Instituted by any Ol.the benehciaries, who are
minors. The trust or charitable use in cues
ton being OF quasi public nature, Il is, IN my
opinion. enforceable by the peopl OF the STATE,
when, as ia this case, The benehcaries are or
may be minors"
Another objection 10 the bill in consequence
of the fact tlat The suit was instituted by
the people on tie relation of the Mayor OF the
city is owe ruled In this way: The reIator
although a nominal party 10 the action, is not
a necessary party 10 a suit Tor he enforcement
OF public charity. The only purpose of his
presence In the suit IS TO secure person re-
SpUnSble for costs
Il am Of the opinion that the action is prop
erly brought In the name OF the people, and that
the presence Of the ielatOr neither aids nor de
featS the cause OF action. The demurrer is
therefore overrnled; the application for an in-
junction and appointment Of a receiver Will
only be determined upon the Trial OF the case