Court Takes Action on University Suit

A lawsuit brought against the University by the Attorney General of Massachusetts came into one of its final stages Monday, when Supreme Court Justice John V. Spalding referred it to a court appointed official for investigation.

The Attorney General's Information, field against the University in the interest of friends of the Arnold Arboretum, charges that the Corporation violated the terms of the trust establishing the Arboretum when it moved a large quantity of plant materials and books to the University Herbarium in Cambridge.

Henry E. Foley, S.J.D. '26 is the "Master," a court-appointed attorney who will report the facts of the case to Justice Spalding within the next two and a half months.

Because the University is a charitable corporation, private parties cannot bring suit against it under Massachusetts law. In 1955, then Attorney General George Fingold refused to use his special powers to bring suit. However, after his death, Attorney General Edward J. McCormack, Jr. acquiesced and allowed the Information to be entered in his name.

Since December 1953, changes in personnel representing the friends of the Arboretum, revisions, and several amendments have prevented the case from progressing to the courts. This June the friends filed a motion for a Master to hear only one facet of the case.

They insisted that when the plants and books were moved the University was favoring botanical study over horticultural and arboreal study. If a court had found this to be so, this would have constituted a violation of the original trust.

DEFINITIONS

Arboretum: A collection of tress and shrubs grown for educational and scientific purposes.

Herbarium: A collection of dried plants.

In defense, the Corporation claims that the original will did not specify any particular place for the library and Arboretum, and that the purposes of scientific investigation could best be served if much of this material was placed near the laboratories and students. Thus the University claims that it has served the best interests of the Arboretum and its herbarium by moving certain parts to Cambridge.

The Arboretum will still maintain almost all the living plants, and anything directly affecting horticulture and agriculture.

According to the original 1872 inden- ture creating the trust, the money left by James Arnold was to be for the promotion of horticulture agriculture, and related fields.

Under an agreement with the University, the trustees gave money to the Corporation to support a Professor and Arboretum in exchange for certain land in West Roxbury, now called Jamaioa plain, to house the Arboretum.

In 1953, the Corporation voted to transfer part of the Arnold Library and Herbarium to the University Herbarium and in 1954 the officials of the University completed the transfer.

After Fingold refused to file an Information against the University, the Arboretum ease went before the Supreme Court of Massachusetts on charges that Fingold had acted on faulty legal principles in refusing to press a suit. The "friends" asked the Supreme Court to force Fingold to reconsider his decision.

When the Court ruled that only the Attorney General himself could make such a decision, and that it could not force a man to reconsider his principles, the case was dropped. In filing the Information in 1958, Attorney General McCormack announced that he was taking no sides in the affair, but so long as one of the parties thought it was being wronged, he felt it was his duty to allow it to go to court