(dissenting).
I dissent. The majority of the court have assumed that the university council, and not the athletic association, is the body which conducts athletic games, and transacts business with the public. This is a mistake. The foundation of the entire athletic system of the University is the defendant. According to its constitution the athletic association is composed of those members of the student body and *428faculty who subscribe to the constitution. Its officers consist of a president, vice president, and secretary. It has charge of the athletics at the University, viz., football, baseball, tennis, field and track athletics, and aquatic and winter sports. The duties of the officers are those generally performed by officers of similar associations. The “executive committee” is called the “board of athletic control,” and it is given authority to conduct the business of the association. This board is composed of the officers of the association, two members of the faculty, to be chosen by the faculty, and two members of the alumni, to be chosen by the board of directors of the athletic alumni association. The officers of the association act as the officers of the board of control. The board of control selects a treasurer for the association, defines the duties of the various departments, authorizes the expenditure of the moneys of the association, audits the accounts of the treasurer, makes a report to the association, and has power to suspend or remove any department manager or captain. There are other articles defining the duties of the association, providing for meetings, how amendments to the constitution may be made, and adopting Robert’s Rules of Order for its procedure. The by-laws regulate the meetings of the board of control, provide the committees to have charge of its exhibitions, and declare that the board of control shall authorize and approve all contracts and agreements on behalf of the association.
The “University Council” was established by the board of regents May 31, 1905. It consists of the president, the deans of the various schools, one representative from each college for each four hundred students, and one representative of the general alumni association. This council has authority to appoint the following committees: University auditing committee, committee on press athletics, on university relations to other institutions of higher learning, on health and sanitation, on commencement and other functions, on catalogue, programme and courses of study, and on • entertainments and social affairs. The council was also authorized to appoint such other committees as the interests of the University might require, to receive reports of all committees, and make recommendations to the board of regents. In March, 1906, the council passed a resolution increasing its subcommittee on athletics to five, and providing that two of them *429should serve on the board of control of the athletic association and be represented on the auditing committee by two members. This subcommittee of five were required to pass upon the eligibility of students to participate in athletic sports and to approve expenditures proposed to be made by the board of control. The resolution directed this committee to have supervision of Northrup Field, and to satisfy themselves of the safety of the stands; and “that the methods of administering in detail the business of the athletic association shall be subject to the approval of the athletic committee; that this committee is given entire control of university athletics, subject to the constant revision and ratification of the university council.”
It is clear to me that the purpose of this athletic committee, appointed by the university council, was merely to check up and to see that the business of the athletic association was properly conducted. This was done, in part, by holding office in that association. The members of the committee were members of the association. They officiated as officers of the board of control. They possessed the power of veto in certain cases; but the university council and the athletic association were two entirely independent organizations. The business of the latter was, according to its constitution and by-laws, to conduct all athletic exhibitions. To the former was delegated the authority to see that the business was properly conducted. Such was the understanding of all the parties, according to the evidence. The athletic association made all contracts with employees and for materials necessary to accomplish the purposes of its existence. The very person who put up the defective bleacher was in the employ of the association, and had been for six or seven years. It invited the public to transact business with it, and on the occasion in question the business engaged in was within its powers defined by its constitution and bylaws, and the members of the association were associates in business, within the meaning of section 4068, R. L. 1905.
That the surplus funds, after paying the expenses of the association, were used in improving the state’s property, is immaterial. The result would be the same, had the money been used in leasing grounds for that purpose, or in buying and improving its own property. That the board of regents had authority to abolish athletics entirely is of no importance in determining the question. The regents have not *430deemed it proper to do so, but they have established a system of espionage over athletic sports, without attempting to engage in the business themselves.