Board of Commissioners v. State

9 Gill 379

• Court: Court of Appeals of Maryland
• Decided: December 15, 1850
• Status: Published

Opinion

Magrtjder, J.,

delivered the opinion of this court.

It was made know to the General Assembly, at its December session 1839, that citizens of Frederick were attempting to establish a female seminary in that city, but that individual contributions were found to be insufficient for the purpose.

What the memorialists aslced, it is not stated . What the General Assembly upon this representation being made to it thought proper to do for this Seminary, will be seen in the act passed during that session, entitled, “An act to aid in the establishment of a Female Seminary in the city of Frederick.'’'’

This law names four persons, and invests them with authority to raise $20,000 by a scheme or schemes of a lottery. These four persons are styled commissioners, and in some parts of the law, a board of commissioners. To them is given authority to sell the schemes or the tickets and apply the proceeds of sale towards defraying the expenses of the building, &c.

These commissioners are also the persons to purchase the ground for this institution, and to build such houses, make such inclosures or improvements as they or a majority of them shall deem necessary for a female academy, and the property was to be conveyed to them in trust, <fcc.

This seemed to be every thing the legislature offered to do for the seminary until the ground was purchased and paid for and the buildings or other improvements were erected. When all this was done, a body corporate was to be brought into ex - istence to be named. “ The trustees of the Frederick Female Seminary,” to sue and to be sued by that name, to have its corporate seal, and to discharge the duties which this law required of them.

It is further provided, that those who are the commissioners at the time when the ground is purchased and paid for, and the buildings erected, shall be the board of trustees, with the power of filling, themselves, any vacancies that may occur. Vacancies in the board of commissioners are to be filled by the governor.

Now this board of trustees when it comes into being, is unquestionably a body corporate. But it is insisted that the same act of Assembly creates another body politic, to continue such until and only until, the board of trustees have legal existence. These two bodies politic, we are told, cannot exist at the same time, the existence of the one must terminate, when that of the other commences, and thus the conclusion is arrived at, that there could be no board of trustees to open the school, while any of the duties of the board of commissioners remained to be performed, such as occasionally paying over the proceeds of another lottery grant.

We do not think so. The General Assembly, no doubt might have created another, and more than one other, corporate body, and might have assigned to each of them some of the .duties which it was thought proper to require of the board of trustees. It might have constituted a corporate body in perpetuum, with no power but to manage the finances of the institution and others for other purposes. The legislature might have incorporated those commissioners eo nomine, or by any other name, with such powers as it chose to confer upon that corporation, and then have made the same individuals a board of trustees, with corporate powers, and have brought them into existence at the same moment, and given to each immortality.

But it was deemed expedient not to have a corporate body, until there was a school tobe opened, but to have commissioners, having it is thought no corporate name, or existence, te perform all the duties which were imposed upon them for the present and for an indefinite time.

We are not able to discover when or how these commissioners were incorporated for fiscal purposes, and certainly cannot learn that an individual of one board who is a member of the one, may not at the same time be a member of the other, or that the two boards cannot be in existence at the same time, and for any period of time, if the legislature so willed it. To the faithful performance of any of the duties assigned to the commissioners a corporate existence was not at all necessary. All the duties required of them, might have beén performed by a single individual, as well as by a corporate body, and if a bond is required, os one was of the board of commissioners, then for any omissions of duty or wrongful and injurious acts, the bond, and not the charier of a body, never perhaps to be brought into existence, would be answerable.

.But if the view which we have taken of this whole subject be correct, it is quite immaterial, whether these commissioners be a corporation, or, it may be, what is called a quasi corporation. An act of incorporation would neither enlarge nor lessen theirpowers, and the period of their existence as commissioners, would in either event, be determined by the act of Assembly, if it had fixed any period; or as it has not, with the duties, for the performance of which, the board was created.

It is said, that be these commissioners incorporated or not, in fact, they must be regarded in this proceeding, as a body politic. It would seem, however, to be as necessary to let us have a sight of the charter, as it was in the case of Agnew against The Bank of Gettysburg, 2 H. & G., 478. Without inspecting it, how are we to determine, that the body corporate (if it be a body corporate,) has done in its corporate character, any thing which it ought not to have done. It is here assumed, that the various acts of Assembly, set forth in the scire facias, do not show to us the corporate duties, or even corporate existence of this board.

The defendants, we are told, have admitted, that they are a corporate body, by appearing and pleading. It is manifest. however, that the individuals could not deny that they constituted the board, which was summoned to appear, and answer to the charges made against that board.

But what were their powers, and duties, and responsibilities as a board of commissioners? Again, it would seem to be somewhat difficult to discover who are the defendants, how many, or how few of them there are. It is supposed that there were either five or nine, but the record does not tell us any thing at all satisfactory, in regard thereto. The scire facias directs the sheriff, to make known to “ the said board of commissioners,” (without giving us the names or numbers of them,) to appear and show cause, why, &o. The sheriff’s return is, “made known.” Thereupon, the record proceeds: “And the said board of commissioner's for the said Frederick Seminary, being, &c., forwarned, now here come by Joseph M. Palmer, their attorney.” Some persons then must be Mr. Palmer's clients, and we necessarily suppose that he has more than one. But the sheriff alone can tell us to whom he gave the notice', and he tells us nothing more than that he gave the notice to those who, in liis judgment, were “the commissioners.”

Here in.court, one great matter in controversy seems to be, for how many people Mr. Palmer appears. For nine, says one of the parties litigant, while the other is equally positive that there are but five. If we turn to the acts of Assembly to instruct us, it would appear from them, that there were some ten or twelve of these commissioners'. In answer, however, to this, as well as to some other statements we have heard about acts of Assembly, we may be (old of the remarks of Chancellor Hanson,- (4 Har. and McHenry, p. 10,) that “every allegation or matter, affirmed in a preamble to an act or resolution of the legislature, shall not be considered as incontrovertible. And that a man may conceal from the legislature facts, which if known to them, might have defeated his application.”

We cannot take it for granted, that all who possibly may cai m to be, really are clients of Mr. Palmer. 1st. Because there were but five, who, according to the act of 1845, were parties, affirming and denying, and afterwards, consenting to a reference of the matters in issue, to the court; and 2ndly. Because of the four persons, about whom the controversy arises, two of them appeared as counsel against the defendants.

There is some other matter which we notice in this record, and which may have some Connection with this controversy. This institution, it seems, was so1 fortunate, as to' obtain a second lottery grant,-which it is taken for granted, will be worth to it $30,000. This, however, was not obtained from the legislature. It is a constitutional grant. The same amendment of the constitution, which grants this to this seminary, expressly directs, that the lottery commissioners, as they shall “from time to time” raise said sum, shall pay the same over to “ the said board of commissioners for the Frederick Female Seminary.” No one can question* that “the said board” consisted but of five individuals, and a board consisting of a greater number, it would seem, can have no title to the proceeds of this (the second) lottery grant, without another change of the constitution-of the State.

In this change of the constitution, we are furnished with an answer to all that has been-said, in order to satisfy us, that the two boards cannot have a cotemporaneous existence. It is here required, that they shall have existence at the same time; the board of trustees to receive and apply as directed, the $20',000, all of which is to be paid to it by the commissioners.

It is made a question, what is correctly pleaded in this case? We have come to the conclusion, that the defendants have a right to insist, (the demurrer being- a general demurrer,) not that the whole matter, suggested in the breaches is untrue, but that notwithstanding some of the suggestions, there is no ground for this proceeding, or for the complaint against the board of commissioners, that the school was opened, as the latter was the act of the board of trustees, determined upon and carried into execution by the trustees, after the property had beed purchased and paid fot, and the buildings erected. These facts, (the purchase and payment of the money, and erection of the buildings,) k is thoyght the demurrer admits; and then arises the question, whether the board of trustees could come into being, and act in that character, before the money to arise from the lottery grant was, (as it has not been,) received? This whole sum, it is said, must be raised and paid over to the trustees, before they can consistently with the charter, open the school, or have existence as a board of trustees.

A conclusive answer, it is believed, will be found to this, in the 5th section of the act of 1839, which tells us when the board of commissioners shall become a board of trustees, and in this respect, certainly, the charter has never been changed.

If, when they had the power to open the school, there were females ready to enter it, and proper persons could be had to take charge of it, why should its doors be closed any longer?' Their charter nowhere requires it.,

Would an excuse for this non user be found in the inability of the lottery grant, to yield all it promised ? It might have been of advantage to the institution to have this fund; for the want of it the trustees might not have been enabled to employ teachers, and therefore could not have opened the school. But we are here to assume, that able professors could be had, and that there were scholars ready to enter the school; and the question is put to us, whence the authority of the trustees to open the school, until the $20,000 were paid over to them ? Their authority is to be found in their charter and office, which made it their duty to open the school as soon as they possibly could, after the building was ready to receive students, and the lot paid for. Could the mere grant of a lottery scheme have the effect to delay opening the school ? We are required here to believe, that although the buildings were all of them in a state of preparation, the library procured, the philosophical apparatus purchased, the ablest professors ready to enter upon their duties, students demanding admittance, and although too this institution was enriched by the contributions of individuals, yet the buildings must be unoccupied, the professors remain unemployed, the children uneducated, and all the wealth of the institution of no value to it until a lottery grant could be made to yield $30,000. Surely laws are not to be so interpreted.

But the demurrer brings to ournotice the objections to the scire facias, and perhaps it is needless to look at anything but this writ, and the act of Assembly, which authorized the issuing of it. This act of Assembly is a charter granted to the attorney general, and the inquiry now is whether in issuing this writ he was not guilty of an abuser or usurpation ?

Why is he required by the act of 1845 to institute proceedings against the board of commissioners? Because two of the commissioners (their names given) had represented to the General Assembly that the charter or franchises of the said institution had been forfeited by certain acts of three of the commissioners, (their names also given,) which acts have been denied by those three commissioners, “and by mutual consent of the said parties, it has been agreed that a scire facias be issued to try the alleged forfeiture.” The inquiry to be made is, whether the charter or corporate powers and franchises of said board of commissioners ought, “by reason of abuses of such powers and franchises, to be vacated or annulled.” If the acts of said commissioners, or a majority of them shall be judicially declared to amount to a forfeiture of their charter and franchises, all the property, effects and endowments, and all grants heretofore made by the General Assembly, shall vest in A. B. Hanson, and the eight others “as commissioners and trustees of the Frederick Female Seminary, in. the manner in which the said property and franchises are now vested in the original commissioners and trustees by the act of 1839, and the several supplements thereto, who shall be incorporated by said name, and shall be vested with the same powers, rights, duties and obligations conferred upon the said original commissioners and trustees by the last said act.”

In the remarks which have already been made, will be found reasons for the opinion of the court, that the act of Assembly does not authorise this proceeding. It is true, as we have been frequently reminded in the course of this argument, that corporations are mere creatures of the law, and must not violate the conditions upon which they are incorporated. But still legal causes must be stated, and the proceeding must be ■warranted by the law which directs it. For every imaginable breach the law does not design that the charter of a corporation must be revoked, Stephens, in his Commentaries on the laws of England, tells us, that “the exertion of this act of law for the purpose of the State, in the reigns of King Charles and King James the Second, particularly by revoking the charter of the city of London, gave great and just offence, though perhaps in strictness of law, the proceedings in most of the eases that occurred were sufficiently regular” and (by way of warning us of the consequence, but too frequently, of a wanton or even unnecessary exercise of power,)' he adds, “but the judgment against the charter of London was reversed by act of Parliament after the revolution; and by the same statute it is enacted, that the franchises of the city of London shall never more be forfeited for any cause whatever.” Hence it is that the sovereign authority reserves to itself the right to determine, not only when such proceedings shall be instituted, but also when violations of a charter shall be overlooked.

It is the opinion of the court, that the act of 1845, ch. 75, did not authorize any proceeding against the person spoken .of as additional commissioners.

It is also the opinion of the court, that the act just mentioned only authorized charges of abuse of franchises, and did not authorize any inquiries touching the breaches before us.

The court is not authorized by any thing to be found in this Record to say that the hoard of trustees was not in being, .and acting in that character in appointing the professor and opening the school. The court can discover in the record, pothing which \y.ould warrant it in deciding, that the board in opening the school, was not acting up to the end and design for which it was instituted.

JUDGMENT REVERSED, NO PROCEDENDO,