Appeal, No. 159, Jan. T., 1953, from decree of Court of Common Pleas of Montgomery County, Feb. T., 1952, in Equity, No. 2, in case of Harold J. Wiegand, Individually and as Editorial Writer for The Philadelphia Inquirer Division of Triangle Publications, Inc. v. The Barnes Foundation et al., Officers and Trustees. Dismissal of bill affirmed.
Harold E. Kohn, with him Elmer L. Menges, C. Leo Sutton and Dilworth, Paxson, Kalish & Green, for appellant.
Victor J. Roberts, with him High, Swarts, Childs & Roberts, for appellees.
Before Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The plaintiff, Harold J. Wiegand, individually as a citizen of the County of Montgomery, Commonwealth of Pennsylvania, and as editorial writer for The Philadelphia Inquirer Division of Triangle Publications, Inc., with the consent of the Attorney General, filed a bill in equity against The Barnes Foundation and the individual defendants who comprise its officers and trustees, averring that the latter were not carrying out the purposes for which the Foundation was incorporated as a corporation of the first class. The defendants filed an answer raising a number of preliminary objections to the bill, two of which the lower court, composed of four judges sitting en banc, sustained, and entered a final decree dismissing the bill. From this decree the plaintiff has appealed.
Dr. Albert C. Barnes, now deceased, was the progenitor of The Barnes Foundation, and following the grant of its charter on December 4, 1922, by indenture and agreement dated December 6, 1922, conveyed to the Foundation certain real estate on which was erected a large art gallery and other buildings, and transferred and delivered to the Foundation his valuable and outstanding collection of works of art consisting, inter alia, of hundreds of paintings, drawings, etchings and lithographs. In addition, he gave to the Foundation large sums of money and securities. The indenture and agreement contained conditions and stipulations under which the donation was made and received by the corporation, and as provided therein, was made a part of the by-laws of the corporation. The primary purpose of the incorporation, as set forth in the Foundation's charter, was "to promote the advancement of education and the appreciation of the fine arts.".
The gravamen of plaintiff's complaint is that the Barnes Foundation is a charitable institution exempt
from taxation and that the manner in which it is administered by the officers and board of trustees (all of the officers are members of the board) so drastically limits access to the art gallery by the public as to defeat the purposes for which the corporation was founded.*fn1
The preliminary objections sustained by the court below challenged the bill on the ground that the deed of gift and the by-laws of the corporation confer discretionary powers upon the trustees in the management of the corporation and its assets, and in the exercise of these discretionary powers the court may not interfere unless the trustees are guilty of bad faith.
While we are in accord with the conclusion reached by the court below on the merits of the bill, we are of opinion that the bill should have been dismissed for want of a proper party plaintiff by sustaining defendants' preliminary objection that "... The person named
as plaintiff in said Amended Bill, to wit, Harold J. Wiegand, either individually or as editorial writer for The Philadelphia Inquirer Division of Triangle Publications, Inc., is not alleged to be a member of the defendant corporation, to wit, The Barnes Foundation, nor to have any right or interest therein other than such right or interest, if any, which he may hold in common with other members of the general public....".
In the absence of statutory authority, no person whose interest is only that held in common with other members of the public, can compel the performance of a duty owed by the corporation to the public. Only a member of the corporation itself or someone having a special interest therein or the Commonwealth, acting through the Attorney General, is qualified to bring an action of such nature. In the early case of The Buck Mountain Coal Company v. The Lehigh Coal and Navigation Company, 50 Pa. 91, this Court, at p. 99, speaking through Mr. Justice THOMPSON, said: "There are many authorities in England and in this country which deny the right of private parties in their own names -- in the absence of special laws -- when their interests are only in common with the public, to compel the performance of a duty to the public. The reason is, that if one individual may interpose, any other may, and as the decision in one individual case would be no bar to any other, there would be no end to litigation and strife. The general laws of order so necessary to good government forbid anything like this.". As a matter of public policy we see no reason for departing from this sound concept. No cases have been cited by appellant in this or any other jurisdiction of contrary import.
In Healy v. Loomis Institute, 128 A. 774 (1925), the Supreme Court of Errors of Connecticut at p. 778 said: "So that if the trustees do not pursue the objects
of the charity, or abuse the charity by violating its franchises, its charter or act of incorporation, or the conditions attached to it or by the perversion of its funds, the court of chancery will intervene and compel the trustees to establish or execute the trust in accordance with their power under the charter or act of incorporation and in accordance with the law of the land. The Attorney General is the proper person to have brought this action, and the bill in equity a proper remedy....".
In State ex rel. Heddens v. Rusk, 139 S.W. 199 (1911), the Supreme Court of Missouri at p. 203 said: "... At such time as his [the chancellor's] power is invoked to construe the trust instrument or to restrain an abuse of power on the part of such trustees, or correct a negligent performance of duty whereby the estate is put in peril or diverted, or to remove or suspend an unfaithful trustee, or to protect and conserve the corpus of the trust estate from being dissipated or lost, he may move only at the instance of the Attorney General who moves on behalf of the people, or at the instance of some other proper party, whereby he grants relief on due process of law on giving parties their day in court. The proceedings complained of in the instant case are not of that sort.".
In MacKenzie et al. v. Trustees of Presbytery of Jersey City, 61 A. 1027 (N.J. 1905) at p. 1041 the following language appears: "In the case in hand the persons interested in the estate or fund, being an indefinite or fluctuating body, are properly represented only by the Attorney General; and only he or the Presbytery of Jersey City, by and through the body charged with the duties of trusteeship, or some member of that body, can ...