Town of Montpelier v. Town of East Montpelier
29 Vt. 12
Vt.
1856
Check Treatment

The opinion of the court was delivered by

Isham, J.

The general question arises in this case, whether the plaintiffs are entitled, upon the facts admitted, by the demurrer, to the relief prayed for in their bill. In a former case between these parties, 27 Vt. 704, involving the subject matter now in controversy, it was held that the plaintiffs had not that legal interest in the money for which the suit was brought, which would enable them to sustain the action of assumpsit. This bill is now brought in behalf of the inhabitants of Montpelier, for the purpose of having the money in the hands of the defendants appropriated as directed in the original charter of the town, and for the appointment of a trustee to collect, manage and control the trust fund and estate, as directed by the charter. The town of Montpelier was originally chartered in 1781, by which charter the territory therein described *18was incorporated into a township by that name, and its inhabitants were invested with all the rights and immunities which belong to the inhabitants of other towns in this state. It is admitted by the demurrer, and it also appears from the charter, that among other public rights, the state reserved, granted and appropriated three rights of land for the settlement and support of a minister or ministers and the social worship of God in that town, and also for the use and support of English schools in such places as shall best accommodate the inhabitants of that township; and when located by the proprietors, it is declared that “ the lands, together with the improvements, rights, rents, profits, dues and interests shall remain inalienably appropriated to the uses and purposes for which they are respectfully assigned; and be under the charge, direction and disposal of the inhabitants of said township forever.” There can be no doubt as to the legal construction which should be given t© that charter. So far as these rights of land are concerned, the town of Montpelier, as originally chartered and as a municipal corporation, is invested with the legal title and interest to these lands in trust for the use and benefit of those who were, and should thereafter become inhabitants of the territory described in that charter. The town, as a municipal corporation, became the trustees of the grant, and the inhabitants of that territory the cestui que trusts, or persons beneficially interested; and the avails of those rights of land, when received by the town, are to be under the direction and disposal of its inhabitants, for the specific purposes mentioned in the charter. That construction was given to this grant in the case reported in 27 Vt., and that decision is regarded as a satisfactory exposition of the views now entertained on the several questions, which have arisen out of that charter and grant. The construction of that charter should obviously be the same in equity, as at law.

The town of Montpelier, as originally chartered, was invested with the powers of a municipal corporation, and like all other towns in this state, was instituted as an auxiliary of the state in the regulation and establishment of its form of government. The rights and franchises of such municipal corporations can never become vested rights as against the state. It was so held by Justice Johnson in People v. Morris, 13 Wend. 331, and Ch. Kent has *19observed that “a public corporation is not a contract witliin the purview of the constitution, when instituted for purposes connected with the administration of the government.” For that reason, so far as their public and municipal franchises and existence are concerned, it has become a well settled principle in the courts of this country, that the legislature may exercise over them exclusive control, and constitutionally may enlarge, restrain, and even destroy their municipal existence; as the public interests may require. Such an act defeats no vested rights, nor does it impair the obligation of any contract; Memphis v. South Memphis, 11 Humphrey 558. They have also under their control the disposition of its corporate property, or that which is held for municipal and corporate purposes. Hence, in thp division of towns, where a part of one town is set off and incorporated into a new town, or annexed to another town, a division of its corporate property is generally made by the act making the division. But while this legislative power may be exercised over public and municipal corporations, it has as uniformly been held that towns, and other public corporations, may have private rights and interests vested in them under their charter; and as to those rights, they are to be regarded and protected the same as if they were the rights and interests of individuals, or of private corporations; and grants of property to them, in trust for other purposes than corporate and municipal use, are no more the subject of legislative control, than are the private and vested rights of individuals. It was upon this ground that it was held in the case from the 27 Vt., that the act of the legislature of this state dividing the original township of Montpelier, and from that territory incorporating the towns of Montpelier and East Montpelier, and dividing also the debts, choses in action, and property of the original township between those towns, in proportion to their grand lists, had no effect whatever upon these rights of land, nor upon the rents and profits arising from them. The statute constitutionally directed a division of the property held by the town of Montpelier under its original charter in their corporate and municipal capacity, and which was to be applied for municipal purposes, but it had no effect upon this property, held by them in trust for the specific purposes mentioned in the charter, and which was not designed for their use as a municipal corporation. These principles *20are fully sustained in Dartmouth College v. Woodward, 4 Wheat. 663, 9, 8; Memphis v. South Memphis, 11 Humphrey 558; Trustees of Aberdeen Academy v. The Mayor of Aberdeen, 13 Smedes & Marshalls, 645; Bailey v. Mayor of New York, 3 Hill 541; Harrison v. Bridgton, 16 Mass. 16; Angel & Ames on Corp. sec. 767, and various other cases to which we were referred in the argument of the case.

The act of 1848 dividing the town of Montpelier-as it was originally chartered, and thereupon incorporating two new towns, abolished its corporate and municipal existence. It has ordinarily been the course in this and other states, when a town has been divided, to set off a portion of its territory to another town, or to organize that part into a new town, leaving the town itself to exist under its charter, as if no division had been made, but with a diminished territory. In such case, unless some provision is otherwise made by the statute making the division, the former corporation retains all the property held by the town before its division, and is subject to all its obligations and duties. 4 Mass. 384, 539; 7 Mass. 441, 445; 16 Mass. 86. But in the division of the town of Montpelier a different course was pursued. In the case from the 27 Vt., in speaking of the division of the town under the act of 1848, it was observed that “from the peculiar and explicit language of the act, it is clear that it was the intention of the legislature to make two new and distinct corporations ; and the effect of this, from necessity, must be to abolish the old municipality.”

It was, upon that view of the case, held that the parties were without remedy at law. The new town of Montpelier was not the trustee of this property, and as a corporation they had no interest in the trust fund. These rights of land were not conveyed to them in trust, and therefore the suit could not be sustained by them at law. That the former township of Montpelier, to which this property belonged, and in which the legal title to these lands and the money arising from their use was vested, was abolished by the operation of that statute, we must therefore consider as having been settled in this state by that decision, and from which we are not now at liberty to depart; and on this demurrer, we are not to presume that the division was made without the consent of all interested in the matter. But the beneficial interest and rights of *21the inhabitants of Montpelier, as it was originally chartered, remain. Unaffected, and as perfect as if no division had been made. The township of Montpelier being abolished by that act of the legislature, there is consequently no person, or body corporate in existence, in whom the legal title of this trust property is vested. The trust estate, and the persons beneficially interested remain, but there is no trustee or person in whom, is vested the right to collect and receive the avails of that property, for the purposes to which they were appropriated. If, in ordinary cases, the state can abolish the corporate and municipal existence of a town, and from that territory establish two new towns, when it is deemed necessary, as auxiliary to the state in the regulation and establishment of its government, we think there can be no insuperable difficulty in the exercise of that power in this case, though it has the incidental effect to leave this trust estate and fund without the trustee as created by the charter. It is not the case, where individual trustees while living, are removed from their trust by an act of the legislature, nor where the cumber of the trustees is increased by the addition of others without the consent of parties interested. Such acts have been held invalid and unconstitutional. In such cases, the legislature can no more defeat the title of a trustee, or affect his right over the trust fund, than they can divert or destroy the fund itself. But this principle must not he regarded as depriving the state of their power to alter or abolish the municipal organization of towns, when it is deemed necessary for public interests. If a town was organized for the purpose of aiding' the state in sustaining its form of government, the power must necessarily reside in the state to abolish that organization, when it ceases to have that effect. That power is inherent in every state; it is a part of its sovereignty, and the exercise of that light is necessary to establish and sustain its government. It is the greater right, to which all others are held subservient. It is not competent for a town, or any other mere municipal organization, which is made the trustee of such an estate or of any charity, to set up a vested right of that character as against the government, and thereby prevent the state •from changing its political and municipal organization as the public interests may demand. If towns, by their charter or in any other way, are made trustees of such an estate for such purposes, their *22right and title as such is held subject to he defeated, whenever the state shall deem it necessary to abolish their existence as a town, or as a municipal organization. This case, therefore, is one in which the, trust estate and fund is in existence; the same as if the town had never been divided. The inhabitants of the territory of Montpelier, as it was originally chartered, are entitled to the- use and disposal of that fund, as is provided in that charter; but there is in existence no trustee having the legal title to that estate, or to the avails arising from it. In such case, the relief should be granted for which this bill is brought.

It is a settled rule in equity that a trust shall not fail for want of a trustee. If a trustee has been named, who refuses to accept the trust, or has since deceased, or if from any other cause, there is a failure of a regular appointed trustee, a court of equity will take upon themselves the due execution of the trust, and if necessary will appoint other trustees to carry the trust into effect; De Pestu v. Clendining, 8 Paige 296; Peter v. Beverly, 10 Peters 532; 2 Story’s Eq. Jur. secs. 976, 1059, 1061. As there is now no trustee who is authorized to take charge of these lands, or of the rents and profits arising from their use, we think the orators are entitled to the relief for which this bill is brought; and among the sources of relief therein mentioned, a trustee or trustees should be appointed by the chancellor, whose duty should he to take charge of this entire trust property, and hold the same subject to the direction and disposal of the inhabitants of the territory of the town of Montpelier as it was originally chartered, and for the purposes specified in that charter.

The decree of the chancellor, dismissing the bill, must be reversed, and the case remanded to the court of chancery with directions to appoint a trustee or trustees of that trust property, and appropriate the same as directed in the charter.