| Summary: | Letter (most likely) from Dr. Edgar P. Hogan to University of Alabama President George H. Denny. This 9-page letter is dated June 23, 1915, is unsigned, and is on letterhead of the Graduate School of Medicine of The University of Alabama.The digitization of this collection was funded in part by a grant from the National Library of Medicine.June 23, 1915.
PERSONAL:
Hon. George H. Denny, President,
University of Alabama,
University, Alabama.
My Dear Dr. Denny: -
I need not tell you with how much pain and disappointment we heard your remarks of Monday night. Every man there who you met considers himself your personal friend. Every man there was a true and loyal friend of the University – most of them were alumni. Excluding myself, for I do not discuss my own character and standing, they were all men of the highest moral principles, and intellectually were of the best in the State. I cannot believe that it was your intention to assume the offensive manner which you did towards these men, your friends and your equals, morally and mentally, and then take up all the allotted time and give them no chance for a reply or defense. It is my belief that you were carried away with the importance of a false promise on which your whole case rested and that you did not stop to weigh adequately all that you said. It is because that I do not believe you meant to be personally insulting and offensive, altho [sic] your language scarcely admitted of any other construction, that I fell at liberty to write you.
Before coming to the marrow of the question, let us dispose of a small matter.
You started out with the assumption that Birmingham was trying to act as judge in this matter and you likened it to the case of a thief trying the question of his own guilt. I think it became clear in your mind that you had gone too far on this point.
The bill which it is proposed to introduce does not contemplate the decision of the matter by the people of Birmingham. I am sure you understood this all the time. The real effect of your argument, therefore, on this phase of the case was that the testimony of the residents of Birmingham was to be discredited and rejected beyond the hope of entertainment because of their supposed interest. Your attitude on this matter harks back to the state of law happily abolished nearly a century ago that an interested party could not testify in his own behalf; and it goes further than that to a state of law which was abolished more than two centuries ago that a person accused was not even entitled to counsel in his own behalf.
But, waiving both points of your final contention in the matter is opposed to all modern tenets and theories, as well as to the facts of everyday life. It may be proper to refer to the interest of a party to a cause, but the testimony of such party is received every day in court and the testimony of the parties is controlling in ninety per cent of all the controversies that are there thrashed out. The question always is, even when parties are testifying; - what is their manner and demeanor on the stand and what is their previous character and standing – and it has never been seriously considered that a mere remote contingent interest such as residence in the community was even ground for impeachment in the mildest degree of a man of character when he was stating his opinion or belief on a question involving the public interest. From any standpoint of the case, either as originally stated by you or as subsequently modified in the course of conversation, your position is ententable [sic]; particularly as you did not traverse, or question a single statement set out in the pamphlet prepared here.
Your next proposition was that the Legislature had designated a court and we were seeking to take the case away from the jurisdiction of that court. This is far from an accurate statement of the matter. The Legislature designated the court; the court has declined or refused or neglected to act; is has shown something in the nature of resentment at being requested to act by outsiders. It was due to act this summer and it postponed action for two more years. In such circumstances the Legislature which created the court undoubtedly has the right to abolish it. The fair implication from the act of the Legislature was that the court would accept the assignment and act on it. This, they have not done, but upon the contrary, as I understand, they have refused to do, at least for a period of two years, altho [sic] they were due to have done so before the reconvening of the Legislature. I say this without any disrespect to the court. If they are going to act upon the assignment it ought to be done before the convening of the Legislature so that the question of appropriation can be properly determined.
Your next proposition is a terrific indictment of a number of your personal friends for alleged breach of faith and unethical practice. I confess I was never more astonished.
At the beginning, having written out your remarks before you came here and holding fast to the letter of them, you absolutely ignored the statements which I made at the opening of the conference. I stated distinctly that we had requested you to meet with us in order that we might confer together as to what was best in the circumstances. I stated that we had had a meeting a few days before and that some of us, being in doubt as to what was best, had felt that before taking final action, a full and free conference and exchange of views should be had with you. It was not our idea that we should dominate the conference, nor that you would, but simply that we should thrash out the matters, mutually explaining our positions, and see if for the good of the University, as well as for the good of Medical Education, we could not find somewhere a common ground upon which to meet. I regret to say that we did not get a conference. We had no exchange of views, nor for that matter, did we have a chance to speak to clear up our positions upon any of the questions involved. Upon the contrary, you spent more than one hour in anathematizing our positions and you gave us no opportunity for explanation or defense; you assumed all the points at issue and proceeded to your indictment and arraignment. Your action was not judicial, but my trust is that upon sober second thought we can still discuss the matter in a way to conserve the interests of the University and of the cause of Medical Education in this State. It is certainly our wish and hope to do so.
In the frist [sic] place your theory is predicated upon a premise essentially unfounded and unsound. You started out in discussing the question of bad faith by assuming that the Legislature entered into a contract of some sort with the Mobile Medical College. I assert without fear of successful contradiction that the Legislature did nothing of the kind. There is no difference here in the matter of recollection – it is a matter of record. I think that you were lead to the conclusion that there was such a contract on the part of the Legislature thru the reiterated assertions of interested parties and that you assumed that what they said was so and upon such assumption based your conclusion.
There were two acts dealing with the Medical College passed in 1907. The first, Acts 1907, page 340, was a donation of $45,000.00; “for the purpose of making needed improvements in the material equipment of the Medical College of Alabama”, etc. Section three of the act provided that this appropriation should not be available until the title to the property was vested in the Board of Trustees “and until the Board of Trustees of the University of Alabama shall have assumed full, complete and absolute management of, and control over, the said Medical College of Alabama.” Not one line or syllable of this act was in the nature of a contract, nor could it be tortured or twisted. In addition to this donation of $45,000.00 for needed buildings, etc., the sum of $5,000.00 annually was appropriated for maintenance. The making of these appropriations was the entire consideration for the conveyance of the title. The question of location was not so much as mentioned therein.
The second act approved March 6th, 1907 (Acts of 1907, P-357) simply dissolved the Board of Trustees of the Medical College of Alabama and vested the ownership and control on the institution in the Board of Trustees of the University of Alabama. There is in this act no element of contract express or implied. (Newton v. County Com., 100 U.S. 548)
The statement in the act “Provided that the said medical Department shall remain at Mobile for all time” is as shown by its context a mere joker, and is unconstitutional because it is not embraced within the title, and moreover it is a mere act of the Legislature which could be changed at any subsequent session of the Legislature. (Newton v. County Co., supra.) It could not in any sense bind the conscience even of the Legislature which passed it, let alone any subsequent Legislature thereafter existing. This is true even if it was constitutional, which it is not. Read the title and you will see that the question of location was not remotely referred to.
There being no element of contract whatever in either of the acts of the Legislature as assumed by you, the next question is – did the Board of Trustees of the University of Alabama enter any contract with reference to the location? If they did I have never seen it. If they did, it was not authorized by, or within the perview [sic] of, either of the acts of the Legislature quoted. Unless there is something in the general authority of the Board of Trustees independent of the acts in question authorizing them to make and enter into such a contract (and of this I have never been advised) then the act of the Trustees in assuming to make such a contract is void because in excess of its powers.
Moreover, the pretended contract not to remove the college, if one was ever made, is void because it is without real consideration and is absolutely unilateral. The facts are, as you would have known if you had been here at the time, that the Medical College of Mobile had reached a state of collapse. It went to the Legislature with its hat in its hand asking for an appropriation, temporary for its physical needs, and permanent, for its permanent needs. The consent which they gave vesting of the legal title in the State. (they retaining the entire unsufruct [sic] of the transaction and receiving a large bonus in the way of both temporary and permanent appropriations) was a mere form. The physical property was not moved a foot. There was no change whatever in its management and they were simply the recipients of an appropriation which they actively sought. I do not question the wisdom or the policy of the Legislature in making this appropriation, but certainly that involved merely a matter of legislative discretion which the Legislature was not bound thereafter to continue should it ever reach the conclusion that it was unwise. The owners of the Medical College of Mobile were the sole beneficiaries of this legislation. They parted with a liability and not an asset; they initiated the entire proceeding for their own benefit. If there be in the records of the University anything in the form of a contract preventing a subsequent removal, it was an act done in excess of the authority granted by the law making power. The truth is that the Legislature simply did what it thought at the time public policy required. It is absolutely free to do at this time what it thinks public policy now requires. If I were a member of the Legislature I would seriously resent the statement that its powers and authority had been curtailed in any manner so as to deny to it the exercise of its supreme authority and duty to consult and conserve the public welfare. If it thinks the public welfare will be better served by a removal of the college from its present location, it has the right to do so and no man can challenge that right, either on the score of contract, estoppel [sic] or bad faith, and whatever the Legislature can lawfully do the citizens of the State can lawfully and properly urge it to do. The Legislature has the right to consider one, and only one question, and that is, - what will best promote the public welfare? It is not estopped [sic] morally or otherwise by anything which took place in 1907, or since.
The Members of the Faculty of the Birmingham Medical College are the ones who have been agitating this matter. They have made larger sacrifices of time and money for the sake of medical education in Alabama than any other man or men in it. They are inspired by the motive of patriotism only. They are not inspired by motives of self-interest, for if they were, they would want the property and would want to sell it for whatever they could get out of it, as it is, and has been a financial loss to them. They have borne the brunt of the deficits of the college, and have paid them out of their private funds. In addition, they have paid for the property itself and have given it freely to the State. They have helped to raise, and have materially contributed to, a substantial sum for a free dispensary. It may not be so large as it should be, but still it involves sacrifices on their part. Their one compensation has been the belief that they were rendering a public service. They did not father the bill lately passed by the Legislature. They consented to it because it was all that could be done at the time. They expected and had a right to expect a prompt decision of the matter by the tribunal which was there created. It was a tribunal unknown to our laws heretofore. That tribunal has elected so far not to exervise [sic] its functions. If it would still exercise its functions this matter can be adjusted; if it will not, in the Legislature rests the only power in the State to determine a question essentially of public policy for the state. And in appealing to that Legislature from the refusal of tris [sic] tribunal to act they are within their legal and moral rights and no man can justly challenge them.
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