Another v. Fontleroy

• Decision Date: 01 January 1854
• Citation: 11 Tex. 698
• Parties: BASS AND ANOTHER v. FONTLEROY AND OTHERS.
• Court: Texas Supreme Court

11 Tex. 698

BASS AND ANOTHER

v.FONTLEROY AND OTHERS.

Supreme Court of Texas.

1854.

Counties, county seats and county buildings are under the control of the Legislature, to alter or abolish at pleasure; so, it seems, are bridges and ferries.

Where the Legislature incorporated a city, and by the same Act relinquished to the corporation thereof, and their successors in office, lands included in the limits thereof, in trust for the use and benefit of said city, with power to sell and apply proceeds to the erection of a jail and court-house for the use of the county of Cameron, the balance to be applied to the purposes of education, within said city, and for no other purposes, and the Legislature afterwards repealed the Act of incorporation, it was held that the former Act did not confer a vested right upon the citizens of said city (nor upon the county, it seems), to the erection of the court-house and jail of said fund; that until the trust had been executed, it was competent for the Legislature to change or abolish it; that the contingent trust for educational purposes, being a public charity, while unexecuted, remained subject to the same legislative power; and that both trusts were extinguished by the repeal of the Charter of Incorporation, so that a trustee could not be appointed by the Court to administer them.

Where an application is made to a Court to appoint a trustee, any person who claims the property, alleged to be trust property, as his own, has a right to appear and become a party; and to resist the appointment, on the ground that there is no trust; and, if the decree be against him, he has a right to appeal.

Kemper v. Corporation of Victoria (3 Tex. R., 159) explained; and herein, of the difference between a legislative grant, saving rights of third persons, and one which contains no such saving clause.

Appeal from Cameron. The District Attorney, at the relation of sundry citizens of Cameron county, filed an information, setting forth the incorporation and grant to the city of Brownsville; the repeal of the Charter; the continued existence of the charitable trust, and the necessity of the appointment of a trustee to take possession of the trust estate, and to administer it. The relators then prayed for such appointment of a trustee, with power to sell the trust property, and apply the proceeds to the erection of a court-house and jail, and the balance for the purpose of education.

On the day after the filing of this information, Elisha Bass and Robert H. Hord appeared as intervenors, alleging themselves to be the owners of lands within the tract designated in the information, and protesting against the action of the Court on the application of the relators. They also filed special exceptions to the sufficiency of the information, and to the jurisdiction of the Court.

On a succeeding day, by leave of the Court, they amended this answer by filing an amendment setting forth an adverse title vested in them previous to the Act of incorporation of the city of Brownsville, and derived both from locations and surveys on headright certificates, and from a grant from the Crown of Spain in 1781, with mesne conveyances to them. This answer and amended answer were excepted to by the District Attorney on the ground that Bass & Hord had no right to appear in this suit; the exception was sustained and the answers stricken out, Bass & Hord being received, however, as amici curiæ, and allowed to introduce evidence to protect their own interests. After the testimony was closed, the Court, of its own motion, reconsidered this last order so far as to allow the answers to stand. The intervenors having applied for a jury, the Court refused the application, and directed the matter to be heard before itself alone. A decree was entered affirming the trust and its continuance, appointing trustees, ordering that they “stand seized” of the fee of the trust property and that they administer it under the orders of the Court or of the Judge in vacation, and pay over the money accruing therefrom to the Court, the Judge or any other person designated by him.

An appeal was taken by Bass & Hord. A motion was made to dismiss the appeal, on the ground that the appellants were not parties in the Court below, and on the ground that the judgment was not such an one as could be appealed from.

Allen & Hale, for appellants.^a1 I. The Act of incorporation, passed January 24th, 1850, so far as its subordinate object--the grant of land--is concerned, was unconstitutional and void, being in contravention of the 24th Section of the 7th Article of the State Constitution. This section is not merely directory, it is mandatory.

And the only question is whether a grant of land is not a distinct object from a charter of incorporation.

II. The Act of 1853, repealing the Act of incorporation, rescinded also the grant; and with that, the trust estate terminated, and could not be revived by the appointment of a new trustee. That this was the letter and intention of the Act of 1850, cannot be doubted. Looking at the reservation in favor of private rights, contained in the Act of 1850, and the confirmation of the Espiritu Santo Grant, made by the law of the 10th of February, 1852, it is impossible to resist the conclusion that the Legislature of the last year was satisfied that their former grant was inoperative, and that it was useless and dangerous to allow it to remain as the source of litigation. But it is contended, that, be the meaning of the repealing Act what it may, it could not constitutionally divest vested rights or impair the obligation of a contract. This position raises two questions--were any rights vested? and was any contract made between the State and the city?

The phrase “vested rights” implies some person in esse in whom the rights reside: and that person must not only be in existence, but certain and definite. There must, in short, be some one to hold and enjoy the benefit conferred. When the city of Brownsville ceased to exist, it was impossible to designate any particular individuals who became entitled to claim the privileges conferred by the grant. The whole community, indeed, might be interested, but the community is not a political person, nor can it take or hold, either in law or equity, a charitable grant. So vague and general a right cannot be said to be vested, and certainly it is not a right of property, in the sense of the 16th Section of the first Article of the State Constitution. (Baptist Ass. v. Hart's Exr's, 1 Wheat., 1.)

Nor was the law of 1850 a contract between the State and the city or the citizens of Brownsville. A public political corporation is merely the agent of the State in the administration of its power. The delegation of authority does not confer an independent sovereignty or a separate political existence. A county, a town, a city, are merely subordinate instruments made for convenience and the division of labor, and subject still to the will of the State to throw them aside when their use ceases. Any other construction would lead to the indefinite sub-division of the State; and the creation of permanent monopolies of power and a multitude of petty despotisms.

The case of East Hartford v. Hartf. Br. Co., 10 How., 532, is quite conclusive; and sums up all the preceding authorities.

W. W. Dunlap, for appellees. The petition did not pray that parties be made to the information. It proposed to have the matter considered by the Court ex parte, for the sole and only purpose of procuring a party authorized by law to prosecute and carry out an unexecuted charity.

As no parties were asked to be cited, it is submitted that none had the right to come in and demand a hearing. (Story's Eq. Pl., p. 274, Sec. 230.)

The “ amici curiæ'DD' could not have been injured by the result of an examination to which they were not parties in some form known to the law.

There was no error therefore in striking out all the papers filed by them and in treating the information, as it was treated by the Court, as ex parte.

The refusal of the Court to grant a hearing before a jury was not erroneous.

There was no issue to try. The Court had determined it to be ex parte. The exceptions, protest, and answer were struck out, and Messrs. Bass & Hord were permitted by the Court to produce any evidence they might see fit to offer for the purpose of proving if they could that there was no trust to be executed.

Here was no issue. It was a simple examination, and these appellants were admitted to appear as “ amici curiæ.'DD'

The grant is sufficiently certain (see page 6 of opinion of Judge Arrington, Sec. 2, and the authorities there cited), and could not be repealed. (6 Cranch, 87; 2 Cond. R., 321; Dart. College v. Woodward, 4 Wheat., 518.) The Legislature did not seek to repeal the grant. It could not repeal it by implication. This Court in Rogers v. Watrous, 8 Tex. R., 62, says “the law does not favor repeals by implication.” There was therefore sufficient shown to the Court to authorize, if not demand, the appointment of a trustee to determine the extent of those rights.

R. Garland, also, for appellees.

LIPSCOMB, J.

On the 24th of January, A. D. 1850, the Legislature of the State of Texas passed an Act incorporating the city of Brownsville, as follows, i. e., “The citizens of Cameron county of the State of Texas residing within the limits of that Section of the territory situated and lying on the left margin of the Rio Grande, in the county of Cameron, aforesaid, formerly a part of the town tract of four leagues of land of the city of Matamoros, in the Republic of Mexico, are hereby declared a body politic and incorporate by the name and title of the ...