Cary Library v. Bliss

7 L.R.A. 765, 25 N.E. 92, 151 Mass. 364, 1890 Mass. LEXIS 224

• Court: Massachusetts Supreme Judicial Court
• Decided: May 1, 1890
• Status: Published

Opinion

KnO'WLTON, J.

The foundation of the Cary Library in Lexington was a gift of a thousand dollars, made by Maria Cary in accordance with the terms of her letter of December 10,1867. Upon compliance by the town with the condition named in the letter, her gift was to go to the inhabitants of the town, to be held by a board of trustees consisting of the selectmen and the school committee of the town for the time being, and the settled ministers of the place, who were to invest it, and expend the accruing interest in their best discretion for such books as they should deem suitable for the library, and were to have the general supervision of the library, and to make such rules and regulations for the management of it as they should consider most conducive to the public interest, such rules and regulations to be submitted to the town for approval. Her scheme contemplated the establishment of a public library for the benefit of all the inhabitants of Lexington, supported in part by the income of a fund furnished by her, and in part by moneys supplied by the town. It is perhaps not of much consequence in the consideration of this case, or in the practical management of the trust, whether the legal title to the fund, or to the library itself, was in the trustees or in the town. In either case, the trustees had the management and control of the fund and of the library. They had not a mere naked power, but a power coupled -with a trust. Drury v. Natick, 10 Allen, 169. We are of opinion that they had the legal title to the fund contributed by Mrs. Cary, and that the interest of the inhabitants was merely beneficiary. The considerations which induced the court to make a similar decision as to the legacj’' referred to in Attorney General v. Parker, 126 Mass. 216, apply equally to this case. There the legacy was to the town “ for the benefit of all the youth of the town.” It was said in the opinion, that the powers given to the trustees were inconsistent with tl^e idea that the town was to be the owner of the legal title to the money. It is true in this case also that the rights and duties of the trustees in the management and disposition of the fund show that they have the legal title. The principal reason for holding, in Drury v. Natick, ubi supra, that the town took the fee in the property devised, is wanting in the case at bar. See also Hadley v. Hopkins Academy, 14 Pick. 240, 262. It seems to have been intended that the legal title to the library itself should he in the town. The letter required the town, as a condition precedent to receiving the gift, to “ vote to establish a free public library,” and to provide a sum of money towards the establishment and support of it. It was nowhere said that the title to the money supplied b}1, the town, or to the books procured with it, should pass to the trustees, but it was rather implied that the library should be the property of the inhabitants, although under a trust that it should be supervised and managed by the trustees.

By another communication, on April 6,1870, Mrs. Cary made another gift of six thousand dollars on precisely the same terms as the first, except that the trustees were directed to expend a thousand dollars of it in appropriately fitting up and furnishing the library rooms. On her death five thousand dollars more passed by her will to the Cary Library, without a particular designation of the trust. It may be doubtful, and it is immaterial, whether that sum went to the trustees as holders of the legal estate or to the town. At all events, it was to be held solely for the support and maintenance of the library, and the proceeds of it were to be used and expended under the supervision of the same trustees.

That part of the donor’s scheme which relates to the management and control of the fund and of the library cannot be disregarded as unimportant. It prescribed the method of administering the charity which she thought best adapted to the accomplishment of her purpose. She chose to give her money to be used in that way. She did not authorize the use of it in any other way, unless for some reason it should become impracticable to pursue the course which she prescribed. It is fair to presume that, before founding this charity, she carefully considered the subject of its administration, and thought it wise to select for her board of trustees those public officers who have in their special charge the business interests of the town, and those whose duty it is to superintend the education of children, together with such reverend gentlemen as regularly minister in the churches, and,are expected earnestly to desire the moral and religious welfare of all the people. This part of Mrs. Cary’s proposal was carefully regarded by the town in all its proceedings, and was treated as an important element in the agreement which resulted from the acceptance of her offer.

The St. of 1888, c. 342, by which the plaintiff' was incorporated and under which it claims title, purports to authorize the town to vote to transfer to the plaintiff all the funds and property held by the town for the purposes of a public library, or for the Cary Library then existing, and also the books, pamphlets, and other property constituting the Cary Library, and to vote to assent to a taking by the plaintiff of all the funds and property held by the trustees of the Cary Library under the terms of the gifts and bequests of Maria Cary. The town voted to make the transfer and to assent to the taking, and the plaintiff filed a statement of a taking in accordance with the provisions of the statute. The principal question now before us is whether by these proceedings the plaintiff acquired a valid title.

The statute to which we have referred undertakes materially to change the execution of the trust. It allows the town by a single act to divest itself of all property in the library, and of all connection with it, and of all right to have reports as to its condition or the investment of its funds. A transfer and taking under the statute place the library and the funds given by Maria Cary and acquired from other sources in the hands of a corporation, which, besides the school committee and the selectmen of the town for the time being, is to consist of not less than thirty nor more than fifty members, of whom nine are named in the act, and the others are to be chosen by these. It vests the management and control of the property, subject to the by-laws of the corporation, in a board of nine trustees, to be elected by the corporation from its members. The settled ministers of the town are not made corporators. While the selectmen and school committee are ex offieiis members of the corporation, they cannot be upon the board of trustees unless they chance to be elected to that place by their associates. No one of the trustees created by the acceptance of Mrs. Cary’s gift is left upon the managing board under this statute.

Without the consent of the donor, such a change in the execution of a charitable trust has never been authorized by the courts in England when it was practicable to execute the trust according to the original intention. In Attorney General v. Boultbee, 2 Ves. Jr. 380, 387, it is said by the Master of the Rolls that “ the court will not decree execution of a trust of a charity in a manner different from that intended, except so far as they see that the intention cannot be executed literally.” It is only when it becomes impracticable to administer a charitable trust according to its terms, that a court of chancery will apply the doctrine of 'ey pres. Attorney General v. Hartley, 2 Jac. & W. 353, 382. Attorney General v. Earl of Mansfield, 2 Russ. 501, 520. Attorney General v. Whitchurch, 3 Ves. Jr. 141. Attorney General v. Whiteley, 11 Ves. 241. Attorney General v. Dedham School, 23 Beav. 350, 357.

This subject has repeatedly been considered by this court. In Winthrop v. Attorney General, 128 Mass. 258, the trustees under a deed of trust, who held a large sum to be used in founding and maintaining a Museum of American Archaeology and Ethnology in connection with Harvard University, sought to make an agreement whereby the fund should be placed under the control and management of the President and Fellows of Harvard College, to be held as a part of their general funds, a part of the income bearing the proportion to the whole which this part of the fund bore to the whole fund to be paid over to ^the trustees. The court said that such a departure from the directions of the donor could be justified, if at all, only upon proof of the most pressing exigency; and that the court cannot alter the scheme of a donor, “either as to the objects of the charity or the agents by whom it is to be administered, unless it appears to be impossible to carry out the scheme according to its terms.” A similar decision was made in Harvard College v. Society for Theological Education, 3 Gray, 280. In Fellows v. Miner, 119 Mass. 541, a bequest was made by a testator residing in this State to the town of Kinderhook, New York, in trust for the charitable uses declared in the will. Under the laws of the State of New York, a town could not take such a charitable bequest without express authority from the Legislature, and, an act having been passed giving the town authority to receive the bequest, it was held that the money could not be paid over, because the act authorized the appointment of the persons who were to collect and distribute the income of the fund to be made by the supervisor and justices of the peace of the town, while the will directed that they should be appointed by the town itself. See also Baker v. Smith, 13 Met. 34, 41; Trustees of Smith Charities v. Northampton, 10 Allen, 498, 501, 502; Jackson v. Phillips, 14 Allen, 539, 591, 592; Morville v. Fowle, 144 Mass. 109.

It is quite clear, that, upon grounds of mere expediency, and in the absence of an emergency requiring it, the court could not decree such a change in the administration of the trust as is contemplated by this statute; and it becomes necessary to inquire whether the principles of law which limit the authority of the court? in a case of this kind are equally applicable to the action of the Legislature under our Constitution.

The acceptance by the town of Maria Cary’s proposition contained in her letter created a contract, which was executed on her part by the payment of the money, and which continued binding on the town and the trustees as to their conduct in reference to the charity. Prior to the decision in Dartmouth College v. Woodward, 4 Wheat. 518, it was uncertain what construction would be given by the Supreme Court of the United States to the word “ contracts ” in Section 10 of Article I. of the Constitution of the United States, which provides that no State shall pass any “ law impairing the obligation of contracts.” It was settled by that case that the word is to be interpreted broadly and liberally, so as to include all obligations which should be enforced and held sacred growing out of agreements, express or implied, for which there is a valuable consideration. There can be no doubt that the money of Maria Cary was paid under a contract, within the meaning of that word in this clause of the Constitution. The principles by which the courts of England and of this country have been controlled, in the decisions to which we have referred, are those rules of common right which' protect men in their transactions with one another. Among them is that fundamental one which is embodied in this provision of the Constitution. If it applies to a change in the administration of a charitable trust such as has been attempted in the present case, it controls the action of the Legislature as effectually as that of the courts.

We think it does apply. The town impliedly agreed with Maria Cary to conform to the terms of her letter. The trustees also agreed that, so long as they continued to be members of the board, they would execute their trust according to her stipulations. She indicated a general purpose to devote her money to this charity, even if it should become impossible to administer it in the manner proposed, and she impliedly agreed that the court might make any reasonable modification of her scheme which might at any time become necessary. The town might become a city, and the board of selectmen or the school committee might be abolished by law, or many other things might occur which would render it impossible or impracticable literally to follow her directions. She impliedly agreed that in such a case the court or the Legislature might modify her method to adapt it to changed conditions. But she did not agree that any material change might be made unless there should be an exigency for it.

It does not appear to be necessary to depart from the plan of administration adopted by the original donor. There seems to be no practical difficulty in conforming literally to the scheme at first proposed. Under these circumstances, none of the parties can be relieved from the obligations of their contract without the consent of all the others. The statute makes no provision for obtaining the consent of any party except the town. Besides Maria Cary, many others have made gifts for the library,- of ■which, some were given in terms to the trustees of the Cary .Library, some to Cary Library, and some to the town. It is to be presumed that these persons knew on what trusts the library was established and was to be managed, and that they made their gifts to be held under the same trusts. In connection with each of the gifts, the donor, the town, and the trustees impliedly became parties to the same contract in regard to the management of the library as that made with Mrs. Cary. Hadley v. Hopkins Academy, 14 Pick. 240, 262. Edwards v. Jagers, 19 Ind. 407, 415. So far as appears, George W. Robinson is the only donor who has consented to a change of the contract. If it be assumed that Alice B. Cary, the residuary legatee of Maria Cary, has assented by petitioning for the passage of the statute and becoming one of the corporators and a trustee, her assent is not equivalent to the assent of the original donor. Two of the gifts of Maria Cary were made in her lifetime, and the contract was fully executed on her part. ' Her residuary legatee does not legally represent her desire to secure a permanent benefit to the inhabitants of Lexington. Her representative succeeds only to her rights of property. Her right to have the trust executed in the interest of charity is a personal right, whose value was in her enjoyment of doing good, and it is not allied to the interest which an heir might have to avail himself of property which belonged to his ancestor. Sanderson v. White, 18 Pick. 328, 333. American Academy v. Harvard College, 12 Gray, 582. Attorney General v. Margaret and Regius Professors in Cambridge, 1 Vern. 55. The possibility of a reversion under the last clause of the letter gives the residuary legatee no right to consent to a modification of the scheme. So far as there is a succession to a mere right of property in the contract, her executor and residuary legatee might represent her, although such a representation could not incluqe a right to consent to the change proposed. But it is no' necessary to decide that Alice B. Cary cannot give consent for Maria Cary. It is enough that there is no one who assumes to represent the other donors, and that their consent is not obtained.

If, in a case of this kind, either the original donor, or those who subsequently contributed to the charity, might be sufficiently represented by the trustees, the statute in the present case makes no provision for obtaining the trustees’ consent; and the paper signed by a majority of them separately, and without conference with their associates, is so inconsistent with the performance of the ordinary duties of their trust that it cannot be taken as representing a valid act of the board. Morville v. Fowle, 144 Mass. 109. We are of opinion that the statute which we are considering impairs the obligation of the contract under which this charity is administered. The principles which lie at the foundation of the Dartmouth College case, and of other similar decisions, are decisive of the question before us. Louisville v. University of Louisville, 15 B. Mon. (Ky.) 642. Dartmouth College v. Woodward, 4 Wheat. 518. Allen v. McKeen, 1 Sumner, 276. New Gloucester School Fund v. Bradbury, 2 Fairf. 118. Regents of University of Maryland v. Williams, 9 Gill & J. 365, 408. Norris v. Abingdon Academy, 7 Gill & J. 7. Brown v. Hummel, 6 Penn. St. 86, 96. The law laid down in these cases, that a charter establishing an eleemosynary corporation is a contract which cannot be changed by the Legislature without the consent of the parties to it, is a mere extension of the doctrine which gives a similar effect to the written statement of a scheme that is made the foundation of donations to unincorporated trustees of a public charity.

As if apprehensive that the statute, in the parts already considered, was in conflict with the Constitution, the framers of the act embodied in it a provision for taking the property under the right of eminent domain. Of this property, fifteen hundred dollars was money deposited in a savings bank; and there were two promissory notes of the town of Lexington, amounting to eleven thousand dollars, bearing interest, and payable to the treasurer of the board of trustees.

Property can be taken in this way only in the exercise of the paramount right of the government, founded on a public necessity. The question has been somewhat considered whether that necessity can ever extend to the taking of money. In Burnett v. Sacramento, 12 Cal. 76, Mr. Justice Field, now of the Supreme Court of thfe United States, says: “ Money is not that species of property which the sovereign authority can authorize to be taken in the exercise of its right of eminent domain. That right can be exercised only with reference to other property than money, for the property taken is to be the subject of compensation in money itself, and the general doctrine of the authorities of the present day is, that the compensation must be either made, or a fund provided for it in advance.”

In Cooley on Constitutional Limitations, (4th ed.) 656, a similar opinion is expressed, and language to the same effect is found in People v. Brooklyn, 4 N. Y. 419, 424. There may be a great public exigency, as in time of war, which will authorize the government to take money in the exercise of this right. Mitchell v. Harmony, 13 How. 115, 128. Williams v. Wilkerman, 44 Misso. 484. Yost v. Stout, 4 Cold. 205. But it cannot truly be said that the taking of money by a private corporation, created to administer a public charity, is a taking of property for public use. The money taken must be paid for in money. It cannot be taken unless it is paid for in advance, or sufficient provision is made for immediate payment, which provision must be in money or in that which is deemed its equivalent. There can be no necessity for such a taking. In its nature it is not a taking for a public use. There can be a taking for a public use under this power only when, in the nature of the case, there is, or may be, a public necessity for the taking. There cannot be such a necessity in favor of a private corporation, which must provide money to pay for money. For this reason, we are of opinion that the Legislature could not authorize the taking of this property by the petitioner.

The only statement of the use to which the property is to be put is found in the provision of the St. of 1888, c. 342, § 5, that it is “ to be held and applied by the corporation in the same manner as if held by said trustees.” The question arises, whether taking property from one party, who holds it for a public use, by another, to hold it in the same manner for precisely the same public use, can be authorized under the Constitution. Can such a taking be founded on a public necessity? It is unlike taking for a public use property which is already devoted to a different public use. There may be a necessity for that. In the first case, the property is already appropriated to a public use as completely in every particular as it is to be. Can the taking be found to be for the purpose which must exist to give it validity? In every case it is a judicial question whether the taking is of such a nature that it is or may be founded on a public necessity. If it is of that nature, it is for the Legislature to say whether in a particular case the necessity exists. We are of opinion that the proceeding authorized by the statute was in its nature merely a transfer of property from one party to another, and not an appropriation of property to public use, nor a taking which was, or which could be found by the Legislature to be, a matter of public necessity. West River Bridge v. Dix, 6 How. 507. Lake Shore & Michigan Southern Railway v. Chicago & Western Indiana Railroad, 97 Ill. 506. Chicago & Northwestern Railway v. Chicago & Evanston Railroad,, 112 Ill. 589.

For these reasons, a majority of the court are of opinion that the St. of 1888, c. 342, is not in conformity with the Constitution of the United States. It follows, that the petitioner has no title to the property in the hands of the trustees of the Cary Librai’y, and that the petition must be dismissed. -

Petition dismissed.