Strauss v. Marlboro County Gen. Hospital , 185 S.C. 425 ( 1937 )

December 10, 1937. The opinion of the Court was delivered by Funds were solicited from the people at large to establish and maintain a hospital at Bennettsville. The campaign for funds was successful; the subscribers met, elected trustees, who procured a charter which, on its face, is that of a private corporation. The trustees adopted rules for the regulation and control of the hospital.

The appellant brings his action alleging that the trustees have adopted certain rules which deprive him, as a duly licensed physician, of the privilege and opportunity of practicing surgery in this hospital; and asks that the hospital be declared a public one, and that the trustees revoke the rules which exclude plaintiff from practicing in that hospital.

The matter came before Judge Dennis of the Fourth Circuit on demurrer by defendant, which he sustained, and dismissed the complaint.

The plaintiff appeals.

It is conceded, we understand, that if Marlboro County General Hospital is a private institution, the action must fail and the appeal be dismissed.

"When, then, the argument assumes, that because the charity is public, the corporation is public, it manifestly confounds the popular, with the strictly legal, sense of the terms. * * * When the corporation is said, at the bar, to be public, it is not merely meant, that the whole community may be the proper objects of the bounty, but that the government have the sole right, as trustees of the public interests, to regulate, control and direct the corporation, and its funds and its franchises, at its own will and pleasure. Now, such an authority does not exist in the government, except where the corporation is in the strictest sense, public; that is, where its whole interests and franchises are the exclusive property and domain of the government itself."

This is the language in part of Mr. Justice Story for the Supreme Court of the United States in the celebrated case of the Trustees of Dartmouth College v. Woodward, 4 Wheat., 518, 671, 4 L.Ed., 629.

Since the rendition of that opinion its pronouncements have been uniformly approved and followed. The opinion is largely set forth in the brief of the respondent, from which we have quoted.

Numerous other authorities might be cited to the same effect, but it is not necessary.

It appears from the statements of the record that Marlboro County General Hospital was built by funds donated by individuals at large. It is governed by trustees named by the corporators, it is a public charity, but is a private corporation.

By way of contrast, it may be said that the Veterans' Hospital at Columbia is a public corporation.

We find no error in the order of Judge Dennis sustaining the demurrer.

Appeal dismissed. Judgment affirmed.

MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BAKER and FISHBURNE concur.

MR. JUSTICE CARTER did not participate on account of illness.