I dissent. Upon the record before us I think the writ should have issued. The relatrix was at least entitled to a hearing in accordance with her repeated demands. The deans' council and the president of the university acted arbitrarily in her expulsion, based upon prejudices resulting from rumors afloat to the effect that her husband was "the campus bootlegger," which gossip was admittedly baseless. Her plea to the chancellor of the University of Montana and to the state board of education for a hearing was unavailing. As a citizen of the state, she had an inherent right to avail herself of the privileges and benefits of the educational advantages afforded her by the state at the university by it established and maintained at public expense. Her case appears to have been prejudiced on the rankest kind of hearsay evidence, and it was by the president and deans' council determined to call her in and dismiss her, unless she were able to convince the president *Page 219 and the deans that they were wrong. Two days later she was called before the president and the deans' council. She had not theretofore had any conversation with the president concerning the charges against her, or otherwise. However, he thereupon announced to the relatrix his decision to suspend her. The president stated that the Ingersolls "had gained the reputation of being the campus bootleggers; that perhaps was substantiated by the fact that Mr. Ingersoll had been convicted on a liquor charge in Helena a year previous to that." At the trial, however, the president frankly admitted he was in error as to the facts. He testified: "Faculty members did speak to me that they had positive evidence that Mr. Ingersoll was selling liquor to students, and that, however, on further examination, we did not feel positive of it. * * * As far as I am concerned, I am convinced in my own mind that Mr. Ingersoll did not sell liquor to students."
The State University is a public institution, and its officers are public servants, and in dealing with pupils regularly enrolled they should be just and fair in their decisions respecting students' rights. Arbitrary action is un-American on any theory. At least, the relatrix was entitled to have been accorded a hearing. As said in the majority opinion, there is nothing to reflect upon the moral character of relatrix; her grades were excellent and she stood high on the honor roll. She does not drink intoxicating liquor, never served any such, and knew nothing of students having been served with intoxicating liquors in her home. She should not be condemned because of suspicions directed against her husband in consequence of campus gossip. When, as here, "a student demands to know the reason why, thereby challenging the existence of any grounds for the claim that he has failed to safeguard `ideals of scholarship' and `moral atmosphere' of the institution, and asks * * * an opportunity to state his side of the case, if there be a case against him, before he is deprived of valuable rights, that student is entitled to the elementary right *Page 220 of notice and opportunity to be heard." (Anthony v. SyracuseUniversity, 130 Misc. Rep. 249, 223 N.Y. Supp. 796.)
As was well said in the case above cited: "The position taken by the defendant is fraught with such obvious perils that it seems unnecessary to recite them; but what a field of rumor, for malice, for prejudice, for falsehood, to roam in, leading to conduct on the part of the university which might be entirely honest, but at the same time based upon a total lack or misapprehension of facts."
A case of this character should never be before the courts, and would not therein be given serious consideration were administrative officers disposed to perform their simple duty in the premises. Their determination made on facts presented ordinarily should never be disturbed by the courts; but where, as here, they act arbitrarily, it presents a proper case for judicial interference.
The relatrix appears to have possessed the required qualifications and to have regularly enrolled and been regularly accepted as a student of the university. Subsequently her conduct was such that she was placed on the honor roll. A contractual relation was created, and she could not be arbitrarily denied her right to attend the university as a student. I concede the necessity and propriety of maintaining discipline at such an institution, and that, generally speaking, the courts will not interfere with the judgment and discretion lodged with administrative officers in its proper conduct. But where, as here, the student is arbitrarily expelled, without being accorded a hearing after repeated demands made therefor, a proper case is presented for court action. The courts are loath to interfere with the judgment and discretion necessarily vested in the governing body of a college or university; yet they will unhesitatingly intervene to prevent arbitrary action or unjust discrimination as to individual students.
The relation between the university and a matriculated student is in nature contractual, and the law will protect the *Page 221 latter from arbitrary dismissal. (Goldstein v. New YorkUniversity, 76 A.D. 80, 78 N.Y. Supp. 739.)
"One who is admitted to a college has a contract right to be permitted to continue as a student until he in regular course attains the diploma and degree which he seeks, and which the institution is authorized to confer, and he cannot be arbitrarily dismissed. * * * While admitted students are at liberty to terminate all relations at any time, it does not follow that the college or university has the same right. In fact, when one is admitted to a college, there is an implied understanding that he shall not be arbitrarily dismissed therefrom. * * * It is clear that the fees for the first year are, in fact, paid and received with the understanding that the work of the year will not be made fruitless, a graduation and degree made impossible, by an arbitrary refusal to permit further attendance. In this understanding there is no want of mutuality. There is no want of good and valuable consideration. * * * An action for breach of contract is not an adequate remedy for such wrongful expulsion depriving the student of the opportunity of obtaining a diploma and degree to which, under his contract, he is entitled, and mandamus will lie to compel his reinstatement." (27 R.C.L. 144.)
The relatrix should not have been suspended without a hearing, and is therefore entitled to reinstatement. (11 C.J. 998.)
In this case it is my opinion that the record clearly discloses that the action of the president of the university and of the deans' council in dismissing the relatrix was arbitrary.
Rehearing denied January 18, 1928.
Cause taken to the supreme court of the United States March 7, 1928, on writ of error. *Page 222