City of Columbus v. Town of Columbus

| Wis. | May 24, 1892

LyoN, C. J.

It seems to us quite immaterial whether the city or the town has succeeded in maintaining the control of the cemetery in question. Ch. 266, Laws of 1876 (R. S. sec. 1439), by its terms gives the common council of the city all the powers, and imposes upon it all the duties, in respect to the cemetery, conferred and imposed upon the town board by the statutes in force when that chapter was enacted. That is to say, cb. 266 attempts to give the control and management of the cemetery exclusively to the city authorities, subject to the rights of burial therein by the inhabitants of the town. If that statute is a valid enactment, the city authorities are exclusively entitled to exercise such control and management, even though such right was never recognized by the town or asserted by the city. Hence the controlling question is whether ch. 266 is a valid law, and not (as the circuit court held) whether the town ever surrendered to the city the management and control of the cemetery.

The question thus to be determined is not a difficult one. The town holds the naked legal title to the cemetery grounds in trust for the inhabitants of the town and city, exclusively for burial purposes. The town has no beneficial interest whatever in the property. It is powerless to convey it for any other than burial purposes, without special legislative authority, or to appropriate to its own use any portion of the proceeds of sales of burial lots. Such proceeds must all be used to pay for the cemetery grounds, and to defray the expenses of, caring for, fencing, and embellishing the same. R. S. secs. 1438-1440.

Because the town has no beneficial interest in the property, and because the use for which it holds the legal title thereto in trust is purely a public use, the fact that it holds the legal title is no impediment to the exercise by the legislature in its discretion of the power to change the trustee,' saving to the inhabitants of the town and city all their beneficial interests and rights in the trust property. The act of 1816 merely changes such trustee, and saves all the rights of the beneficiaries tinder the trust. It is therefore a valid law. The authorities cited by counsel for the city in support of the power of the legislature to change the trustee, in such a case fully sustain it.

Counsel for the town place much reliance upon the case .of Milwaulc.ee v. Milwaukee, 12 Wis. 93" court="Wis." date_filed="1860-06-15" href="https://app.midpage.ai/document/town-of-milwaukee-v-city-of-milwaukee-6598182?utm_source=webapp" opinion_id="6598182">12 Wis. 93, as holding the opposite doctrine. We do not think it sustains the position. In that case the town held the legal title to forty acres of land within its limits “ in trust for the sole use and benefit of said town forever.’’ A conveyance in fee of land to A. in trust for the sole use and benefit of A. is necessarily a conveyance to him of the absolute title in fee. Hence the absolute title in fee to the land was in the town so far as the town was competent under the statutes to take and hold the same. This forty acres was afterwards detached from the town, and made a part of the city of Milwaukee, and the city took actual possession thereof. The town brought ejectment to recover the land, and succeeded in the action. This court affirmed the recovery. The real controversy was necessarily confined to the questions of legal title and right of possession, which are purely proprietary and therefore vested rights. The case did not involve the question we have in the present case of the power of the legislature, where one municipality holds the mere naked title, without any beneficial interest therein, to land in another municipality, in trust for the beneficial use and enjoyment of the inhabitants of both municipalities for a specified purpose, to enact that the municipality in which the land is located shall have the exclusive care and management thereof for the beneficiaries. We do not think that case negatives the power of the legislature to enact ch. 266,-Laws of 1876.

It must be held, thereh re that ch. 266, Laws of 1876, is a valid law, and that under it the common council of the •city of Oolumbus is vested with the management and control of the cemetery in the interest and for the beneficial use of the inhabitants, both of the town and city.

By the Court.— The order of the circuit court dissolving the preliminary injunction of the city and granting a similar injunction against the city and its officers is reversed, and the cause will be remanded for further proceedings in accordance with this opinion. The printed case is unnecessarily voluminous. In the adjustment of costs the clerk will only allow for printing one hundred pages thereof.