200 Mass. 61 | Mass. | 1908
In order to understand rightly the provisions of St. 1890, c. 422, it is necessary to have in mind the circumstances under which that act was passed.
Gardner S. Burbank, by his last will, had bequeathed the residue of his estate, subject to the contingency of his daughter’s leaving children and to certain conditions stated in his will and codicils, to the city of Fitchburg for the founding and maintaining of a hospital. The result of this disposition was of course, upon the taking effect of the legacy, to create a charitable trust.
But he was of course aware of the fact that the city of Fitch-burg could act as the trustee of this fund and could exercise the wide discretion which he had given to it only through the medium of its officers' and agents. The charter of the city, St. 1872, c. 81, provided in § 2 that the administration of all its “ fiscal, prudential and municipal affairs,” together with its government, should be vested in its mayor, board of aldermen and common council, and in § 12 that the city council should have care and management of all. city property, . Apart from the principle that the testator must be regarded as acquainted with all the general laws of this Commonwealth, the presumption is strong that as a citizen of Fitchburg and the founder of this charity he was familiar with these provisions. And he knew of course that the full control over the city in its character of a municipal corporation and one of the instrumentalities of government was vested in the State; and that the Legislature at any time, at its mere will and pleasure, as it might deem to be for the public good, could alter the frame of the city government, abolish existing offices and substitute new ones, and
But there were some manifest inconveniences in the administration of a trust like this by the officers of a city government, chosen for different purposes,. perhaps merely for political reasons, and subject to change at every municipal election. There were, so far as appears, no officers of the city who, without interference with their other duties, could receive and manage this fund or properly carry on and administer the hospital. There was no department of the city government authorized and adapted to take charge of this matter. It may be that the mayor and the city council, under their general powers of administration could have provided for the creation of such a department and for the appointment or election of such officers; but this was not attempted to be done. Instead of this, the Legislature, acting under its general powers of control over all municipal governments, passed the statute now under consideration.
The preamble of this statute, after reciting the bequest of Mr. Burbank which then amounted to more than $430,000, declares its purpose to be “ to enable the inhabitants of said city of Fitchburg to receive the benefits of said generous bequests of said testator and effectually to realize and meet the benevolent intention expressed in his said will.” For this purpose it created a corporation, by the name of the Burbank Hospital, composed of fifteen citizens of Fitchburg, who are named, and who, with
In our opinion, it is manifest that the purpose of this statute was to do away with any doubt of the power of the city of Fitchburg to accept this legacy and execute the trust thereby created, and also to provide a means whereby the city might, through the instrumentality of a board created and constituted its agent for that purpose, administer the trust in a proper manner, upon a consistent scheme, with due regard to the desires of the testator, and without risk of any sudden breaks or changes in the mode of administration by reason of any political or other overturns in the personnel of the city government that might be caused by the annual elections of mayor, aldermen and common council. Accordingly it was provided that only five of the trustees should vacate their positions each year, and that vacancies should be filled in the first instance by the remaining trustees, so that a proper permanence of management should be ensured, while sufficient facilities are afforded to the city government for supervision of their action and for securing a prompt redress of any possible maladministration or errors of judgment on their part by the provisions that the mayor, the president of the common council and the city treasurer for the time being shall be members of the board of trustees, and that the trustees shall make to the city council the annual report which is required by the statute. We find nothing in these provisions contrary to any article of the Declaration of Eights.
Nor can it be said that this act is unconstitutional because it takes away from the city the property which had become vested in it under the will of Mr. Burbank. Even if the statute had this effect, the objection would be cured by the fact that it was not to come into force until accepted by the city of Fitchburg,
Nor is the statute open to the objections which were found to be fatal to a somewhat similar act in Cary Library v. Bliss, 151 Mass. 364. As we have already seen, there is no taking of property here, as was the case there. There was no such particular method of administration provided for this charitable trust as was found there. No special persons were designated here to act as individual trustees. This founder was content to have his foundation managed by such officers or agents of the city as might from time to time be lawfully designated for that purpose; and we have already seen that in this Commonwealth the Legislature may, especially with the formally expressed assent of the city by its acceptance of the statute, prescribe who shall be such officers or agents and the mode of their selection. Such
The argument that the Legislature has attempted in this act to exert a judicial power, contrary to art. 30 of the Declaration of Rights, by removing one trustee and appointing another, fails, because this is neither the intention nor the result of the statute. The city of Fitchburg, as we have seen, retains its legal title to the fund and its position as trustee. As it must act through some instrumentality, the Legislature has provided what it deemed to be a proper one for that purpose; and we of course could not revise that conclusion if we were disposed to do so. We need not consider whether the act would be unconstitutional if it did take away the trusteeship from the city and give it to the Burbank Hospital. Stone v. Charlestown, 114 Mass. 214, 228, 229. The existence of the conditions which have been imposed by the will upon the city is not of importance. The statute has made no alteration in the rights or liabilities of any one in respect to them. The trust is not affected; the personality of the trustee is not changed. The effect of the conditions remains unchanged. The result of their breach will be the same. The obligation of the city to comply with them, if there is such an obligation, is- in no way increased or diminished. As was said in Drury v. Natick, 10 Allen, 169, already referred to, it is not to be presumed that the city will fail to carry out, to the extent of its legal powers, the wishes of its benefactor.
But the defendant city contends that the Burbank Hospital cannot be regarded as its agent, at any rate against its consent, and without power on its part to revoke the relation; that there cannot be a perpetual agency, or one which, as a mere delegated power, is not strictly subordinate to the control of the principal. As between natural persons who are sui juris, this is perfectly true. But the argument overlooks the power of the Legislature to control its cities in their public affairs and in their administration of public charities by controlling the selection of the officers or agents to whom these are to be entrusted. Smith v. Wescott, 13 L. R. A. 217. Philadelphia v. Fox, 64 Penn. St. 169. And see Allen v. Macy, 109 Ind. 559; McGurn v. Board of Education of Chicago, 133 Ill. 122. It is not necessary for us to determine exactly what are the limits of this legislative
It results from what has been said that the plaintiffs might safely pay over the funds in their hands either to the city of Fitchburg or to the trustees of the Burbank Hospital. But in view of the fact that since the passage of St. 1890, c. 422, the only effect of a payment to the city would be to cast upon that municipal corporation the duty of paying at once the amount so received to the Burbank Hospital, and as it appears that the hospital has full power to receive the fund and to give to the plaintiffs acquittance and discharge therefor, and so that a payment to the trustees of the hospital is really a payment to the city, while it does not affirmatively appear that there is any officer or any other agent or representative of the city who at present has such power, we are of opinion that the plaintiffs should be instructed that they ought to pay over the trust fund in their hands to the Burbank Hospital as the agent in that behalf of the city of Fitchburg, upon its giving to them proper acquittance and' discharge therefor in the name of the city.
So ordered.