Bass v. Fontleroy

11 Tex. 698

• Court: Texas Supreme Court
• Decided: July 1, 1854
• Status: Published

Opinion

Lipscomb, J.

On the 24th of January, A. D., 1850, the Legislature of the State of Texas passed an Act incorporating the city of Brownsville, as follows, i. e. “The citizens of “ Cameron county of the State of Texas, residing within the “ limits of that Section of the territory, situated and lying on “ the left margin of the Rio Grande, in the county of Cameron, “ aforesaid, formerly a part of the town tract of four leagues “ of land of the city of Matamoros in the Republic of Mexico, “ are hereby declared a body politic and incorporate by the “ name and title of the city of Brownsville. And all the right “ title and interest of the State of Texas in and to all the land “included in the said tract, that was owned by the town of “ Matamoros on the 19th day of December, 1836, shall be “ and is hereby relinquished to the corporation of Brownsville “ and" their successors in office, in trust for the use and benefit . “ of said city; provided this Act shall not impair private “ rights. Said corporation shall have power to sell and alien- “ ate any portion of the lands owned by said corporation, and “ appropriate the proceeds thereof to the erection of a substan- “ tial jail and courthouse for the use of the county of Cam- “ eron; and the balance shall be appropriated for the purpose “of education, within said city, and for no other purposes.” This charter was repealed by an Act of the Legislature, on the 2éth January, A. D., 1852. After the repeal of the charter, an information was filed by the District Attorney, praying the Court to appoint a trustee to carry out and execute the trust conferred on the corporation of Brownsville. Messrs. Hord & Bass made opposition to the appointment of a trustee, claiming to be the owners of the land, alleged to be trust property. The Court refused to receive evidence of their title, or to allow a trial of the same by a jury; but adjudicated the title ex parte to be trust property, conveyed by the Act of incorporation to the corporation of the city of Brownsville; and proceeded to appoint a trustee to supply the place of the extinguished corporation ; and vested, by its decree, the land claimed, in fee to the said trustee, to execute and carry out the objects of the trust. Bass & Hord appealed.

The case has been argued with great ability, and we regret that the short time allotted to us, and the pressure of other business prevents our giving an extended examination of the arguments of the counsel on both sides, and the authorities referred to by them.. We believe, however, that the main question, on which the case must depend, can be reduced to very narrow limits.

The primary and main object of the trust, created by the Act, was in the erection of a jail and courthouse for the county of Cameron, in the city of Brownsville; and, secondary to this object, was an appropriation of the balance of the proceeds, to the support of education within the city. If the primary object failed,- by the repeal of the Act of incorporation being repealed, it is difficult to perceive how the secondary one, the. support of education, can be supported.— Whether there would be any balance after the execution of the first object, is left altogether uncertain. And if there is no balance, there would be nothing appropriated to this secondary object. How is the trustee, appointed by the Court, to determine whether there would be any balance left, after the erection of the jail and courthouse, until those edifices have been erected. Under the decree of the Court, he seems to be charged with the whole trust, that had been conveyed to the corporation before the repeal of it, the erection of the jail and courthouse, and the application of the balance to educational purposes.

The appointment of the trustee, and vesting in him the fee of the land, are based upon the hypothesis, that the grant for a jail and courthouse created a vested right to the application of the fund to that purpose; that the Legislature had no power to divest the grant or control it. The 'consequences resulting from this doctrine, would be, that a grant by the Legislature, for these public edifices, would forever preclude the Legislature from abolishing or changing the county seat, a doctrine that cannot be tolerated for a moment If the Legislature cannot change county boundaries, and the seats of justice in the counties, or abolish a county and attach the territory comprehended in it to another county, it would be, to establish a rotten borough system, where the corporation would be sustained although the inhabitants may mostly have disappeared.— But corporations of this character are conceded by all jurists to be under the control of the Legislature, to alter or abolish at its pleasure. They are public corporations, distinguished from private. The latter alone are regarded as being founded upon and creating that kind of . contract that the Legislature has no right to violate. If a private corporation has forfeited its chartered rights and privileges, the forfeiture and abolition of its charter can only be inquired into by a resort to a judicial decision. Rot so, however, with a public corporation. It lives only at legislative will. This. doctrine is well established by eminent jurists; and we need not go further, however, for its support, than to the case of Woodward v. Dartmouth College, and to the principles discussed and decided in 3 How. 534.

It has, however, been contended, that admitting that the trust, so far as it refers to the erection of the jail and courthouse, was repealed by the repeal of the charter or Act of incorporation, yet so much of the trust as was to be appropriated to educational purposes, was a grant of a charter that could not be affected or defeated by the repeal of the Act. If this proposition were admitted, the difficulty in the execution of that trust, by a trustee substituted by the Court for the extinguished corporation, would not be removed. The substituted trustee, having no control of the primary object of the trust, would be powerless, for want of the means of ascertaining whether there was anything left, to be applied to educational purposes; and until the establishment of that fact, there would be nothing to support the trust, and it would therefore be void. If the trustee would have no authority to execute the trust by the erection of the public edifices, a jail and courthouse, the charter being repealed, it would seem that the trust property, conveyed by the State to the corporation for those purposes, would revert to the State, and whether these buildings should or should not ever be erected, would depend upon the legislative will.

But, to return to the charter that has been repealed, and to its legal character—if public or private. The establishment of counties, their boundaries, courthouses, jails, bridges, ferries, are all matters of public policy, dependent on the legislative will for their creation ; and according to the rules laid down by the Supreme Court of the United States, in the cases of East Hartford v. The Hartford Bridge Co., 10 How. 511, and Mills v. St. Clair Co., 8 How. 569, are equally dependent upon the same will for their continued existence. It would therefore follow that the Legislature could have abolished the county of Cameron, by dividing the territory comprehended within its limits, and annexing it to other counties; that it could have changed the county seat and the law providing for the erection of public buildings. The buildings referred to, form, a part of the public policy, and are required in each territorial subdivision of the State into county jurisdiction; but they are not exclusively for the use of the citizens comprehended within the county boundaries, but are under the control of the Legislature, open to all others, and for their use. We believe that the Act of incorporation of the city of Brownsville, granting the rights of the State to the corporation, for building a jail and a courthouse in the said city, did not confer a vested right in the citizens therefore, either to have those buildings within their city, nor a vested right in the trust property granted for their erection ; and that until the trust had been executed, it was competent for the Legislature to change or abolish the trust; and that such was the legal effect of the repeal of the charter, so far, at least, as concerned the primary object thereof, the erection of a jail and courthouse. And I believe that it had the same effect as regards the contingent trust for educational purposes. Although that portion, if any . there should be, after satisfying the first object of the trust, might be regarded as a charity, it was not a private charity, but was a public one, connected with, and dependent upon, the corporation, and was to my mind, alike under the control of legislative will, and was liable to, (and did,) fail by the extinction of the corporation, it being a public aud not a private corporation. The mere fact of its being a charity, could not place it beyond legislative control, so long as the trust remained unexecuted, if it was a public charity.

There was a preliminary motion, made to dismiss this case from the docket, on the ground, that it was not a case that would admit of an appeal. From the facts presented by the transcript of the record of the proceedings in the Court below, we think differently, and believe the appellants had a right to appeal.

The decree in the Court below is final, as to the subject matter to which it relates, the proceedings upon which it is predicated ; it decrees that the title to the trust property was vested in the corporation, at the time of its extinction or repeal. It appoints a trustee, vests in that trustee the absolute fee in the trust property, subject to the trusts created by the Act of incorporation. The appellants had appeared and made opposition to the appointment of the trustee, and offered to show that they were the true owners of the property, or land supposed to be trust property, and claimed a trial of their right by a jury. The Court refused to receive the evidence of their title, or to give them the benefit of a jury trial, but went ex parte into an examination of the title of the State, to the trust property at the time it was vested by the Act of the Legislature in the corporation. This examination was ex parte. It would seem, that after the apellants had made known and offered to interpose their title, the Court should not have undertaken to decree the legal title in fee to have been in the old corporation, and to decree that it be vested in a trustee, without giving them an opportunity to substantiate their title. True it is, that such a decree, so entered on an ex parte examination of the legality of the title, in favor of the trust, could not impair the validity of appellants’ title ; but it is most manifest that the decree was eminently calculated to injure the appellants, by creating a doubt as to their titles being valid. The appellants may, then, have well considered, and believed themselves aggrieved by a decree; and had a right to have it reversed. And the refusal of the Court to allow them to be made parties, was a distinct ground, on which they could claim a revision, after the final decree was entered in the Court below. The Court, however, did not stop in its opinion, with the investigation of the legality of the title, that it vested in the trustees, but proceeded to investigate, to some extent, the title of the appellants, although they had not been allowed to support its validity, and decided against its validity; and the case of Kemper v. The Corporation of Victoria, (3 Tex. R.) is referred to as conclusive against appellants’ title. We do not intend to decide upon the validity of appellants’ title, but only to correct an error as to the conclusiveness of that case. The corporation relied upon a final patent and legislative grant, without the reservation of the rights of others. Kemper relied on a location of a certificate, and it was ruled that an inchoate title could not stand against a perfect grant from the Government of Texas. And we did not decide upon what would have been the law, if the title of the corporation had reserved the rights of others; nor do we now. For the reasons expressed, we believe the judgment of the Court below should be reversed, and it is accordingly so ordered and the case dis- • missed.

Reversed and dismissed.

Wheeler, J., concurred in the reversal of the judgment, and gave notice that he would deliver a separate opinion, but failed to do so.