Attorney General v. Parker

• Decision Date: 02 January 1879
• Citation: 126 Mass. 216
• Parties: Attorney General v. James O. Parker
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

126 Mass. 216

Attorney General v. James O. Parker

Supreme Court of Massachusetts

January 2, 1879

Argued January 18, 1878

Middlesex. Information in equity by the Attorney General, at the relation of a committee of the town of Shirley. The defendant demurred to the information. The case was heard by Soule, J., on the information and demurrer, and reserved for the determination of the full court; and appears in the opinion.

Demurrer sustained.

T. H Sweetser & F. A. Worcester, for the defendant.

D. S Richardson, for the Attorney General.

Soule J. Colt & Endicott, JJ., absent.

OPINION

Soule, J.

It appears from the information and the papers annexed thereto that Leonard M. Parker gave by his will "the sum of four thousand dollars to the inhabitants of the town of Shirley, to constitute a fund for the endowment and support of a high school for the benefit of all the youth of the town, the same to be placed under the superintendence" of certain persons named in the will, "as a board of trustees." This board, originally composed of six persons, was to consist, after five years, of five only, one going out of office at the end of each of the first four years after the organization of the board, and the other two at the end of the fifth year, the vacancies to be filled by the board, except one, which was to be filled by election by ballot by the town at a meeting called for the purpose. The board was to be organized by the choice of a chairman and secretary, and was authorized by the will to make choice of all other necessary officers, appoint teachers, and fix their compensation, determine the age, number and qualification of the pupils of the school, "and do all things needful," and was required to keep a record of its doings, and to make a report annually to the town, showing the condition of the school, the state of the fund, and the manner in which the income had been expended or invested. The board was also authorized to procure an act of incorporation with all needful powers to carry the will into effect, and "for the most effectual investment of the funds to insure to the town their safety." The will further provided, that the principal of the fund and its accumulations should always be held sacred to the object specified; and that the income should be received and faithfully appropriated to the purposes mentioned; that "the town shall have the right, at all times, to examine into the state of the school, and of the fund, and the doings of the trustees, and to hold them to a faithful accountability." The trustees were never incorporated, and when the information was filed there was one vacancy in the board, which consisted of but four members. By a codicil, certain changes were made in the bequest, but they have no bearing on the questions before us.

The information sets forth, and the demurrer admits, that the trustees accepted the trust and elected the defendant secretary and treasurer of the board in the year 1855, and thereafter annually till the year 1872, when Seth Chandler, another member of the board, was elected secretary and treasurer; that the defendant received large sums of money and the proceeds of the sale of lands, for the purposes of the trust, and had the custody, management and investment thereof, and of the proceeds and income thereof, till the election of Chandler as treasurer; that there still is a balance in his hands, as it is believed, of five or six thousand dollars; that the defendant refuses to furnish any account of the condition of the investment of the funds in his hands, or of the income thereof, or to pay any part of it to Chandler, or apply it to the purposes of the trust; and that the board and Chandler have often demanded an account of the proceedings of the defendant as treasurer, and of the investments of income and expenditures by him. The information charges that, through the conduct of the defendant, there is danger that the fund will be wholly lost to the town and to the beneficiaries intended by the will, and asks for an account of the trust funds which he has received, from the beginning, and of all the earnings and income which he has or ought to have received, and of his lawful expenditures of the same, and of its condition and investment; and that he be ordered to pay any balance in his hands to Chandler, or such other persons as the court may order, and generally for other and further relief. The information is brought at the relation of three citizens of Shirley, "a committee of said town chosen to collect and act upon the funds."

The defendant demurs to the information on four grounds: First. That it does not allege a breach of trust on the part of the defendant in the application of the funds, and that it is only in case of a misapplication of funds that the Attorney General is authorized to prosecute. Second. That the town of Shirley is not made a party. Third. That the co-trustees of the defendant are not made parties. Fourth. That the ex-trustees, whose terms of office have expired, are not made parties.

As to the first ground of demurrer, it is sufficient to say that the information alleges a refusal to pay a part of the funds to the treasurer of the board, a refusal to make known to the board the amount in the defendant's hands, or the manner of its investment, and a refusal to apply the income or any part of it to the purposes of the trust, which is a sufficient failure to make "due application of funds given to public charities," within the meaning of the Gen. Sts. c. 14, § 20, to authorize the filing of an information. But, in saying this, we are not to be understood as intimating that the right and duty, incident on general principles to the office of the Attorney General, or public prosecuting officer, to interfere in behalf of the proper administration of public charities, is diminished or narrowed by that statute. S...