(dissenting).
I respectfully dissent. Rice University sought and secured equitable relief in the trial court under the doctrine of cy pres which has been available to trustees of public trusts for centuries, and such doctrine is specifically made available to trustees of public trusts by express provisions of Section 2,1 Article 4412a, Vernon’s Annotated Civil Statutes of Texas. Section 52 of the Article outlines the duties and responsibilities of the Attorney General in regard to any dispute, claim or controversy of a character described in Section 2 of Article 4412a. There is nothing in the act which even indicates that the Attorney General, having been served with process and having made his appearance as a party, loses his status as a necessary party, as provided by statute, merely because members of the general public, who might be interested in subject matter of the lawsuit, see fit to intervene and align themselves on the side of the Attorney General. It is undisputed that the Attorney General did file an answer and actually participated in the trial of the case. While it is true that the attorneys for the intervenors (Petitioners in this Court) associated themselves with the Attorney General, nevertheless the Attorney General actively participated in the defense of the case.
The ultimate issues before the court were whether Rice University may charge reasonable tuition of its students; and whether Rice University must exclude otherwise qualified students solely because of the color of their skin. These issues, which were thoroughly litigated in the trial court between the Rice University and the Trustees and their allied intervenors on the one hand and the Attorney General and his allied intervenors on the other, arose because the trustees, in the exercise of their judgment, concluded to invoke the doctrine of cy pres through the courts in order to remove the restrictive features provided in the original indenture, dated May 13, 1891, and executed by William Marsh Rice and *349six other persons chosen by him and named as trustees by him.
This suit was tried before the court and a jury. The petitioners and the Attorney General closed the case without introducing any direct evidence. The respondents introduced all of the evidence and the petitioners cross-examined respondents’ witnesses.
The court submitted special issues to a jury, and thereafter entered its judgment in favor of the trustees and among other things the judgment “ordered, adjudged and decreed, that William Marsh Rice University, and its trustees, now and hereafter, under the law, and notwithstanding the color and tuition restrictions in the indenture of 1891 and in the charter of William Marsh Rice University, may disregard such restrictions, and are no longer bound thereby, in the administration and operation of said University; and said trustees are hereby authorized and empowered to alter or amend the charter of said University, if they wish to do so, in order to reflect therein the provisions of this judgment eliminating the said two restrictions so as to render it practicable for the trustees to achieve the main purpose of William Marsh Rice, i. e., the devolpment of an educational institution of the first class.”
All of the Attorneys, including Waggoner Carr, Attorney General, by Hawthorne Phillips, defendant, approved this judgment as to form except the attorneys for Petitioners, John B. Coffee and Val T. Billups, the allied intervenors of the Attorney General. These intervenors were the only persons dissatisfied with the judgment and the only persons who gave notice of appeal.
To further demonstrate that the Attorney General actively participated throughout the trial, I point out that Waggoner Carr, Attorney General, by his Assistant Attorney General, Hawthorne Phillips, joined the attorneys for Coffee and Billups, in approving their Bill of Exception to the action of the Trial Court in refusing to enter judgment decreeing that “the plaintiffs take nothing by their suit and that all relief sought be denied.”
Regardless of whether the Attorney General was in accord with the judgment, in toto, or whether he thought that the plaintiffs-respondents were entitled to some relief, and regardless of whether or not he felt that the judgment “went too far,” the fact remains that the Attorney General, as the only defendant, did not appeal from the judgment entered by the trial court.
The conclusion is inescapable that the litigation ended in the trial court between all of the parties who had a justiciable interest therein, and the finality of the trial court judgment became certain when the Attorney General did not file a motion for a new trial or appeal from the judgment of the trial court. Since the statute makes the Attorney General a necessary party to litigation of this type, and since the Respondents made the Attorney General the sole party defendant, it naturally follows that private individuals have no legal right to maintain or direct the defense of the suit, nor do they have the power to substitute their judgment for that of the Attorney General in determining the question of whether or not to appeal from an adverse judgment rendered in the trial court. The Court takes the position that since the petitioners were permitted to intervene without their voluntary intervention being challenged, they are to be regarded as being in the same position as though they had been named defendants along with the Attorney General from the beginning. The fact remains that they were not named defendants. Therefore, these petitioners occupy the status, by their voluntary intervention, of being assistants to the only defendant, the Attorney General of Texas. It is wholly untenable to contend that, merely because no plea in abatement was filed, Coffee et al. became defendants with power to override the judgment of the Attorney General, the only real defendant in the case. Coffee et al. have no authority to displace the Attorney General in the exercise of his judg*350ment and decision not to appeal. See Maud v. Terrell, 109 Tex. 97, 200 S.W. 375 (1918); Staples v. State ex rel. King, 112 Tex. 61, 245 S.W. 639 (1922); State ex rel. Hancock et al. v. Ennis, Sheriff, Tex.Civ.App., 195 S.W.2d 151 (1946), wr. ref. N.R.E. While these cases grew out of quo warranto and mandamus proceedings, I contend that they are analogous on the particular, question this Court has under consideration. For example, in the Ennis case, supra, the trial court granted the District Attorney’s motion to dismiss ouster proceedings which had been instituted by the State of Texas acting by and through the duly elected and qualified District Attorney of the 36th Judicial District of Texas. The relators, who had joined in the ouster petition, resisted the motion to dismiss, excepted to the ruling of the court in granting the motion to dismiss, and carried the case to the Court of Civil Appeals as appellants. The paramount question presented by the appeal was: Did the District Attorney have the right or authority to control the course of the litigation, or did the private individuals, as original relators, have the right to prosecute the suit to final judgment in the appellate courts contrary to the desire of the District Attorney to discontinue the case ? The issue was stated by the Court of Civil Appeals thusly: “But the issue here has reference to the asserted right of private individuals to maintain a suit which ‘is emphatically a proceeding on the part of the State,’ despite the action of a proper state official, the district attorney, in requesting a discontinuance.”
In principle, the Court has the same issue here: Do these petitioners, Coffee et al., have the right or authority to appeal, and thereby control the litigation, between Rice University et al. and the Attorney General in concluding to not appeal from a judgment rendered adversely to his position? The Court in the Ennis case answered the question in the negative. It is my view that when the courts speak of “maintaining a suit” it is meant not only the filing of a suit, but the term is meant to include the right of appeal whether the appealing party be a plaintiff or a defendant who is dissatisfied with the judgment. Coffee et al. could not have legally filed this suit in the first instance, nor could they have defended this suit without the Attorney General being a party defendant. Granting that Coffee et al. intervened without objection, and granting further that they thereby attained a status in the lawsuit, the Attorney General being the only party defendant, the acts and services of Coffee et al. were rendered in subordination to the controlling authority of the Attorney General. This being true, the effort to appeal, contrary to the course taken by the Attorney General, was a nullity. Any judgment other than the one of dismissal by the Court of Civil Appeals in this case would have been a nullity. In the case of Akin Foundation v. Trustees for Preston Road Church of Christ, Dallas, Texas, Tex.Civ.App., 367 S.W.2d 351 (1963), no writ hist., the judgment and judgment rolls disclosed the absence of the Attorney General as a necessary party under Article 4412a, supra. The Akin Foundation was seeking a declaratory judgment without the Attorney General being made a party, as required by the statute. The Court, under the authority of Williams v. Steele, 101 Tex. 382, 108 S.W. 155 (1908) and McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957), exercised appellate jurisdiction to the extent of declaring the judgment invalid because of the absence of the Attorney General as a party. The case' was reversed and remanded to the trial court with direction that The Akin Foundation have a reasonable time to effect the joinder of the Attorney General of Texas as a party to the suit. I refer to this case mainly to point out that while the Court of Civil Appeals correctly declined to pass upon the merits of the appeal in the Akin case, the Court of Civil Appeals in this case had no authority or jurisdiction to require the Attorney General to further “maintain the suit” by appeal.
The petitioners, Coffee and Billups, are in no position to challenge the Attorney Gen*351eral’s decision to refrain from seeking a reversal of the judgment of the trial court by way of appeal. In fact these petitioners have failed to present any point or argument that the Attorney General’s conduct in terminating the litigation was in violation of his statutory duty. This Court is concerned with a matter of jurisdiction, and not merely a question of the procedural rights of in-tervenors. The fact that no objection was registered by either party to the entry into the case by both groups of intervenors does not settle the jurisdictional question one way or the other. Certainly, the petitioners cannot successfully assert that merely because they intervened in the case without objection, they thereby became vested with all the rights of the Attorney General, including the right of appeal. Yet, they are here making just such argument. Their position is squarely in the teeth of Section 63 of Article 4412a, supra. The statute does not authorize the Attorney General to delegate the authority vested solely in him. The record reflects that Albert Jones, the First Assistant Attorney General during the trial, and his successor, Hawthorne Phillips, actively participated in the trial. Although the petitioners are to be commended for their zeal and their obviously valuable services in furnishing able counsel to aid the Attorney General, they have no legal authority to overrule the considered judgment of the Attorney General. They have no legal standing in the appellate courts. Even the Attorney General admits that he no longer has any standing in the appellate courts.
Another thing to be considered. The statute expressly authorizes the Attorney General to “join and enter into such compromises, settlement agreements, contracts, and judgments * * *, as in his judgment and discretion may be in the best interests of the public.” If the Attorney General can settle cases without the benefit of a trial court judgment, why should he be prohibited from terminating litigation after a full and complete trial and entry of judgment in the trial court.
Another example of the fallacy of in-tervenors’ position is this: Suppose Rice University had at some time during the proceedings decided to enter into a settlement agreement with the Attorney General and by the terms of such agreement, Rice University either dismissed the suit or a judgment was entered that Rice University take nothing, does anyone think for one minute that the intervenors, the group allied with Rice University, would have the right to break the settlement or maintain an appeal? Certainly not. Neither group of in-tervenors had standing to sue, consequently neither group had the right or authority to maintain an appeal. The right to appeal is determined by the same standard which determines the right of a party to initiate an action. The generally accepted rule is that “appellate courts do not decide cases where no actual controversy exists between the parties at the time of the hearing.” City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638 (1939). There was no actual controversy between Coffee et al., and Rice University in the Court of Civil Appeals.
The petitioners-intervenors’ attempted appeal to the Court of Civil Appeals complained primarily of the ruling of the trial court in denying an instructed verdict in their favor, and in denying them a judgment non obstante veredicto, and rendering judgment in favor of respondents based upon the application of the doctrine of cy pres. Only the Attorney General could appeal from such rulings. In the case of Duffey v. Cross, 175 S.W.2d 637 (Tex.Civ.App.1943, wr. ref. want of merit), the Court, in overruling Duffey’s contention in regard to a *352judgment denying him a recovery over against Cross, said:
“As to this * * * ruling it is only necessary to point out that Duffey had no justiciable interest in that controversy, since his rights were not in any way prejudiced by that ruling. Only the State could challenge that ruling and it has not appealed.” See City of Chicago v. Chicago Rapid Transit Co., 284 U.S. 577, 52 S.Ct. 2, 76 L.Ed. 501 (1931).
The petitioners-intervenors rely upon the cases such as Gibson v. Richter, 97 S.W.2d 351 (Tex.Civ.App.1936, no wr. hist.) and Metcalfe v. McCarty, 301 S.W.2d 263 (Tex.Civ.App.1957, no wr. hist.). These cases merely stand for the proposition that an intervenor, once permitted to intervene, may appeal the judgment of the trial court if, but only if, he has a justiciable interest in the subject matter and the judgment rendered is adverse to this interest. In the Metcalfe case, the intervenor had a monetary interest in the judgment. In the Gibson case, the Court merely said, by way of dictum, that an intervenor is permitted to appeal “from a judgment adverse to his interest.”
The Court seems to rely upon such cases as Tunstall v. Wormley, 54 Tex. 476 (1881); Pierce v. Weaver, 65 Tex. 44 (1885); Woods v. Bell, 195 S.W. 902 (Tex.Civ.App. 1917, writ refused); and Inglish v. Johnson, 42 Tex.Civ.App. 118, 95 S.W. 558 (1906, writ refused) to support its construction of Article 4412a which is to the effect that Coffee et al. are not precluded from perfecting an appeal despite the action of the Attorney General in declining to appeal. My examination of these particular cases leads me to conclude that they have no application to the case at bar. Aside from the fact that the parties, under the circumstances of each case, had a special interest therein separate and apart from that of the general public in the charitable trust, these cases, all decided before the enactment of Article 4412a,- supra, were rendered obsolete after the passage of the Act by the Legislature. These particular cases are completely out of harmony with the manifest intention of the Legislature. The Legislature definitely fixed the control of litigation involving charitable trusts. Just as the Constitution of Texas lodged with the county and district attorneys the duty of representing the State in ouster proceedings, the Legislature by the enactment of Article 4412a definitely designated the Attorney General to act for the public and all classes of beneficiaries to charitable trusts in this State. By implication all others are excluded. Under the statute, which is absolutely controlling in any controversy involving the construction of the terms of a charitable trust, the Attorney General is clothed with the responsibility and authority for conducting litigation involving public trusts. In this proceeding for the application of the doctrine of cy pres, the Attorney General has discharged that responsibility. At least, this Court does not have before it the question of whether or not the Attorney General has discharged his responsibility.
The Court discusses other earlier cases which held that the Attorney General, not only had the right to intervene in a case where he had not been made a party, but that it was his duty to protect and enforce any trust which had been declared to be charitable. The force of the holdings in these cases,4 aside from being in harmony with Article 4412a, lies in the fact that such holdings, no doubt, influenced the Legislature in placing the responsibility with the Attorney General. The Court’s view in the present case, if adopted, will continue the uncertainty which existed because of conflict of authority prior to the enactment of Article 4412a, supra. In adopting this statute it is convincing that the Legislature intended to put to' rest the troublesome questions raised in the past by *353persons of the same class, but with different views endeavoring to direct how a charitable trust should be administered.
Rice University and its trustees had the right pursuant to Article 4412a, supra, to file this suit against the Attorney General of Texas. The issues drawn between these parties were tried in the District Court to judgment and the Attorney General determined not to appeal. Therefore, the judgment having become final, the litigation ended then and there. Though petitioners and others intervened at the trial level, they had no standing to maintain this appeal. The opinion of the Court of Civil Appeals is correct and well supported by authority. I would affirm that Court’s judgment rendered herein.
NORVELL and HAMILTON, JJ., join in this dissent.
. “See. 2. Por and on behalf of the interests of the general public of this state in such matters, the Attorney General shall be a necessary party to and shall be served with process, as hereinafter provided, in any suit or judicial proceeding, the object of which is:
“a. To terminate a charitable trust or to distribute its assets to other than charitable donees, or
“b. To depart from the objects of a charitable trust as the same are set forth in the instrument creating the trust, including any proceedings for the application of the doctrine of cy pres, or
“c. To construe, nullify or impair the provisions of any instrument, testamentary or otherwise, creating or affecting a charitable trust, or
“d. To contest or set aside the probate of an alleged will by the terms of wbicb any money, property or other thing of value is given, devised or bequeathed for charitable purposes.”
. “Sec. 5. Any dispute, claim or controversy of a character described in Section 2 of this Article, and affecting a charitable trust may be settled or compromised by agreement, with or without the intervention or approval of a court, provided, however, that no such compromise, settlement agreement, contract, or judgment shall be valid or binding unless the Attorney General is a party thereto and joins therein. The Attorney General is expressly authorized to join and enter into such compromises, settlement agreements, contracts, and judgments, as aforesaid, as in his judgment and discretion may be in the best interests of the public.”
. “See. 6. It is the purpose of this Article to resolve and clarify what is thought by some to be uncertainties existing at common law with respect to the subject matter hereof. Nothing contained herein, however, shall ever be construed, deemed or held to be in limitation of the common law powers and duties of the Attorney General.”
. Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223 (1935); Powers v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273 (1942); Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326 (1946).