The Trustees of the New Gloucester School Fund vs. William Bradbury, 11 Me. 118

Mellen C. J. This is an action of trover for sundry notes of hand, sundry deeds, and certain books, particularly described in the writ. The question is, whether, upon the facts reported, the action can by law be maintained. The first objection is, that there is no such corporation as that described in the writ, and to which the defendant is called to answer. The second objection is, that the case presents no evidence whatever of a conversion: and the third objection is, that the plaintiffs have no merits or legal ground of action.

In our examination of the cause, we shall reverse the order pursued by the counsel for the defendant, in the argument, and commence with an examination of the facts ' and principles, on which the plaintiffs place their claim to retain the verdict which has been returned in their favor. The cause is important in principle and influence, and deserves particular and careful consideration. A brief

summary of the principal facts will be useful in this place, in presenting our opinion, and the grounds of it, in a clear and'distinct point of view. [See preceding statement.] The great principles collected, discussed and established in the cases of the Trustees of Dartmouth College v. Woodward, and Allen v. McKean, treasurer of Bowdoin College, have been referred to, and relied on by the counsel for the defendant, as decisive of the merits of this cause in his favor.

The counsel for the plaintiff, distinctly disclaims all objections against the decision of either of those cases, on the points arising in this case, and, thus far, admits the perfect correctness of the principles on which both decisions repose. But he has contended, that th"’ case before us differs from both those in some important particulars : that it is a case sui generis, in respect to the character of the quasi corporation, with which it was connected in its origin, and afterwards in its liabilities, viz. the town of New Gloucester.

Hence, our inquiries are confined to the alleged reality and legal importance of these distinctions. In the act establishing Bowdoin College, and making provision for its first and continued organization, there is also a grant of five townships, for the use of the College and for the purposes of instruction, Sic., and the seventeenth section, by which they are granted, provides that the lands, so granted, shall be vested in the trustees, with power to settle, divide, and manage the same, or sell, convey, or dispose of the same. And the sixth

section provides that the clear rents, issues, and profits of all the estate, real and personal, shall be appropriated to the endowment of the College : so that they have an interest in, and control over the personal, as well as the real estate, before it is sold and converted into personal. Here, by one process, the lands passed from the Commonwealth to the Trustees, for the use of the College, in either of the forms above stated.

In the case under consideration, the school lands were first granted by the Commonwealth to the town of New Gloucester, for the use of schools in that town, and the fee vested in the town, in trust for the purposes mentioned : and by a second process, many years afterwards, the estate, so vested in the town, was sold and conveyed by the Trustees named in the act of 1803, which was passed, on tbe application of the town, for the purpose of converting the real estate into a personal fund.; and this fund, by that act, was placed under the exclusive management and control of the Trustees.

The Commonwealth, the Town, and the Trustees were all parties to this arrangement, made for the better security and productiveness of the property originally granted to the town. In both cases, the property was derived from public bounty, for promoting the cause of education, and the funds produced by the property, were in the same manner, placed under the exclusive management of Trustees. Why are not the Trustees, in both cases, equally protected from legislative control or interference, if no right is reserved to interfere, to modify, limit, or destroy their powers and privileges.

In the act of 1803, no such authority is reserved to the legislature. “ A corporation is defined by Mr. Justice Dlackstone, 2 Com. 37, to be a franchise. To this grant or franchise, the parties are the King and the persons for whose benefit it is created, or trustees for them. Certain obligations are created, binding on both parties, the' grantor and grantees. It implies, therefore, a contract not to reassert the right to grant the franchise to another, or to impair it.

The subjects of the grant are not only privileges and immunities, but property, or which is the same thing, a capacity to acquire and hold property in perpetuity.” Judge Washington’s opinion in Dartmouth College case.

The legislature was bound by the act of 1803, so that they could not resume any powers by them granted to the Trustees: and for the same reason, or perhaps a stronger one, why was not the town bound by its own act, in requesting the legislature to -pass the act of 1803, in which the only rights reserved to the town, are, to be furnished annually by the Trustees with a fair statement of their doings; and a right of action against the Trustees, for any losses occasioned by their negligence or misconduct.

The counsel for the plaintiff contends, that though the corporation in question, is of a peculiar character, and different from those described in our law books, it still is a public corporation, and subject to be regulated, controlled, and directed by the government. On this point, the doctrine laid down in the case of Dartmouth College v. Woodward, seems decisive. Marshall C.

J. in delivering the opinion of the Court, in that case, says, “ Strictly speaking, public corporations are such only, as are founded by the government, for public purposes, where the whole interests belong to the government.” — “ The charter of the crown cannot make a charity more or less public, but only more permanent.” He further states, that no authority exists in the government, to regulate, control, or direct a corporation or its funds, “ 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.” Surely the case under consideration is not of such a character.

The school lands, the avails of which constitute the present school fund in New Gloucester, were granted by Massachusetts, for the use of schools in that town; and for that purpose, they annually realize the amount of its interest, under the management and control of the Trustees, acting under the law of 1803, by a reduction of the sum to be raised and collected by taxation, for the support of schools in the town.

In this manner, New Gloucester possesses and enjoys a beneficial interest in the funds of the corporation; which brings the present case within the very language of the court, in the case of Dartmouth College v. Woodward. By the original grant of the Commonwealth, of the lands to New Gloucester, the fee of the lands vested in the town, in trust for the purposes of the grant. The sovereign power then had no further control of the lands.

By the act of 1803, passed by the consent, and on the application of the town, its right of managing the lands was at an end, and the right to the control of the fund, raised hy the sale of the lands, was never in the town, but was expressly vested in the designated Trustees. This proceeding constituted a contract, and, in virtue of this contract, the Trustees acquired an interest — a legal interest: they accepted their appointment, and became entitled to a compensation for their services, which the town'was bound to pay.

But after a lapse of thirty years, during which period, the business relating to the school fund, seems to have been carefully and peaceably managed, according to the act of 1803 — 'the town and the Trustees enjoying their respective rights and privileges undisturbed, the legislature of this State passed the act of 1833, thereby undertaking to legislate the Trustees under the former act, at once out of office; and authorise the town to choose trustees, who were to have the same powers as the former trustees, except of filling vacancies, and ordering the former trustees to deliver all the books, papers, and property belonging to the school fund, to the Trustees named in the last act.

The object of legitimate legislation is to define, establish, and secure to all the citizens, their legal rights: but there is another kind of legislation, expressly forbidden in the 11th

section of the declaration of rights, which declares that the legislature shall pass no law impairing the obligation of contracts. The same thing is forbidden in the Constitution of the United States. The act of 1833 professes to di vest those rights which vested under the act of 1803, and to impair and dissolve those contracts which were created by that act. The prominent case of Dartmouth College v. Woodward, on constitutional law, as well as Pawlet v. Clark, Hampshire v. Franklin, Greene v. Brunswick, and Richardson v. Brown, forbid such a proceeding.

There is another objection to the contemplated operation and effect of the act of 1833, grounded on the 7th condition, in the act relating to the separation of this State from Massachusetts, which seems to be an immovable foundation.

It is in these words: “ All grants of lands, franchises, immunities, corporate or other rights, and all contracts for, or grants of land not yet located, which have been or may be made by the said Commonwealth, before the separation of said District shall take place, and having or to have effect within the said District, shall continue in full force, after the said District shall become a separate State.” The above paragraph, being part of the seventh condition, is incorporated in our Constitution.

It is an undisputed principle, that every act of the legislature, passed in due form, is presumed to be constitutional. Respect for that body requires such presumption. It is a principle equally clear, that this Court ought not, in a doubtful case, to pronounce such

an act unconstitutional; it should be plainly in violation of constitutional requirements or restraints, and beyond the boundaries of correct legislation, to authorize the Court so to adjudge it. But when, upon patient investigation, it is ascertained to be so, we are solemnly bound, steadily to obey the requisitions of duty, by pronouncing it unconstitutional and void. In so doing, how-éver, we may still believe that the same was enacted with the purest motives, under a full conviction that it was, in all its provisions, conformable to constitutional principles.

The result to which we have been conducted by our examination of the main question in the cause, is, that the act of 1833 violates the Constitution of the United States and of this State, and therefore we are not authorised to give any operation or effect to its provisions. Our decision on this point, renders it unnecessary for us to express any opinion as to the merits of the first and second objections made by defendant’s counsel. The verdict must be set aside and the plaintiffs called.