Crow v. Clay County

• Citation: 95 S.W. 369,196 Mo. 234
• Parties: EDWARD C. CROW, Attorney-General, ex rel. ALLEN B. JONES, JAMES LOVE, ALEXANDER B. CRAWFORD, ABRAM T. LITCHFIELD and TRIGG T. ALLEN, Appellant, v. CLAY COUNTY, as Trustee of the "Aull School Fund," et al
• Decision Date: 22 May 1906
• Court: United States State Supreme Court of Missouri

95 S.W. 369

196 Mo. 234

EDWARD C. CROW, Attorney-General, ex rel. ALLEN B. JONES, JAMES LOVE, ALEXANDER B. CRAWFORD, ABRAM T. LITCHFIELD and TRIGG T. ALLEN, Appellant, v. CLAY COUNTY, as Trustee of the "Aull School Fund," et al

Supreme Court of Missouri, Division Two

May 22, 1906

Appeal from Clay Circuit Court. -- Hon. J. W. Alexander, Judge.

Affirmed.

Herbert S. Hadley, Attorney-General, for appellant; D. C. Allen of counsel.

(1) The area of the action and benefit of the Aull Fund is at and within the territory of the city of Liberty as fixed by section 1, article 1, of the Act of February 27, 1851 (Laws 1851, p. 98) -- one square mile -- and within two miles of the territory embraced in the city of Liberty. The area of the action and benefit comprises 21.56 square miles. It will be observed that the testator uses the term "county seat," and does not menton the town Liberty. Why was this? It is a historic fact that county seat removal has been mooted in times past in Clay county. The testator was a man of sense and knew that Liberty would grow from, perhaps, 500 inhabitants in 1838, to 3,000 inhabitants now. These and other considerations, doubtless, induced the testator to say county-seat. The Clay county court, by statutory authority on May 7, 1829, incorporated Liberty as a town with territory consisting of the northeast quarter of section 7, township 51, range 31. The Legislature, on February 27, 1851, by the direct exercise of legislative power, incorporated Liberty into a city and gave it a territory of one square mile. Will anyone have the hardihood to contend that the northeast quarter of section 7 is the county seat of Clay county? The term of the will is county-seat, and, as a legal consequence it must be true that the area of the action of the Aull Fund would increase with the legal territorial increase of the county-seat. McIntyre's Admrs. v. Zanesville, 17 Ohio St. 352. (2) As to who may be trustees: Perry on Trusts (5 Ed.), sec. 39; Hill on Trustees (4 Am. Ed.), p. 48; 1 Lewin on Trusts (1 Am. Ed.), p. 30; Tudor's Charitable Trusts (3 Ed.), 67, 97, 177. On the question of doubt as to power of a county court to act as trustee or to perform any function other than those specifically conferred on it by statute: Howard v. Tracy, 118 Mo. 631. And as showing the extent of the chancellor's powers -- even to changing the trustee, etc. -- and, inferentially, the greater scope and power of the Legislature: Women's Christian Ass'n v. Kansas City, 147 Mo. 103. (3) In their answers, respondents say: Said school district "is now and always has been a country school district with three directors, and is not and never has been, a city or village school district." They also say: Said school district "has voluntarily but continuously maintained a high school and done high school work." Article 1 of chapter 154, Revised Statutes 1899, is the charter of the school district. If the power has not been granted by that article to the school district to establish and maintain a high school, independently and without union with three or more other school districts, then it has not now -- and has never had -- the power to do so. The most minute scrutiny of that article will fail to show that it has such power, acting alone. But to make it yet plainer, apply the well-known maxim -- expressio unius est exclusio alterius. Broom's Legal Maxims (3 Am. Ed.), p. 505. Section 9773 in article 1 expresses the mode and terms of establishing and maintaining a high school by union of a district with "any other three or more school districts in Missouri." (4) The answers to the information are drawn on a misconception of the extent and meaning of the case of Sappington v School Fund Trustees, 123 Mo. 32. That case is not in point in this case. To understand both cases, it is first necessary to consider the change of conditions in Missouri between May 22, 1838 -- the date of John Aull's will -- and October 24, 1853, the date of the trust deed by Dr. John Sappington. (5) It is palpable from the record that for above twenty years prior to the filing of the information herein the trustee of the Aull fund had committed continuous breaches of the trust by delegating, without any warrant in law, all of its duties in the administration of the trust to the school district. It turned over the $ 8,500 to the district and did no more. It is a fixed, universal principle of law that the office of trustee is one of personal confidence, and its duties cannot be delegated unless an express authority for that purpose be conferred by the instrument creating the trust. Hill on Trustees (4 Am. Ed.) 179; Perry on Trusts (5 Ed.), secs. 287 and 408; Underhill on Trusts, 292; 1 Lewin on Trusts (1 Am. Ed.), p. 252; Pomeroy's Equity Jurisprudence (2 Ed.), sec. 1068; Graham v. King, 50 Mo. 22; Sales v. Perry, 51 Mo. 449; Harper v. Mansfield, 58 Mo. 17; Vail v. Jacobs, 62 Mo. 130; Brickenkamp v. Rees, 69 Mo. 426; Spurlock v. Sproule, 72 Mo. 503; St Louis v. Priest, 88 Mo. 612. (6) It is ultra vires of the school district to receive trust moneys of a charity and apply it, as in this case, growing out of the receipt by the school district of moneys from the Aull Fund, and the application of it as indicated in the record. What is the meaning of ultra vires? In this case it simply means: It was outside of, beyond the powers for which the school district was created by the Constitution and laws of Missouri, for it to receive moneys from the Aull Fund and attempt to execute the trust established by John Aull. Reese's Ultra Vires, sec. 17; Green's Brice's Ultra Vires, 36. The school district is a corporation established by law for a specific educational purpose, indicated and limited in its charter; and not to ascertain what children are orphans or poor, nor to hold the title to trust funds, nor to execute any trust but its own. Art. 1, ch. 154, R. S. 1899. (7) The charity created by John Aull in his will for "orphan or poor children at or within two miles of the county-seat of Clay county," is a charity of the clearest and most unimpeachable character, by all the authorities. Statutes of England (Folio 1640), p. 1233; Perry on Trusts (5 Ed.), ch. 23. It is, also, a public trust, because it is a charitable trust. The expressions public trust and charitable trust are synonymous. Tudor's Charitable Trusts (3 Ed.), pp. 2 and 11. In the settlement made by John Aull there is an expressed charitable intention, and the sum bequeathed is directed to be perpetually kept at interest. From this it follows, as a necessity, that the direction includes the perpetual application of interest accrued to the payment of the tuition of orphan or poor children. There is, therefore, no resulting trust in the fund. Hill on Trustees (4 Am. Ed.), pp. 128, 450; Perry on Trusts (5 Ed.), secs. 156, 723, 726; 1 Lewin on Trusts (1 Am. Ed.), p. 161. (8) In Missouri the doctrine of cy-pres (as a necessary factor in the administration and effectuation of charities), has been recognized as existing in our law, in the same sense and as broadly as in England. And whatever the force and effect of the term cy-pres as molded and left by Lord Chancellor Hardwicke, the same is its force and effect in Missouri. Chambers v. St. Louis, 29 Mo. 543; Acad., etc., v. Clemens, 50 Mo. 167; Goode v. McPherson, 51 Mo. 126; Mo. Hist. Soc. v. Acad. of Science, 94 Mo. 459; Lackland v. Walker, 151 Mo. 210; Atty.-Gen. v. Whitchurch, 3 Vesey, Jr. 141; Atty.-Gen. v. Boultbee, 2 Vesey, Jr. 380; Atty.-Gen. v. Stepney, 10 Vesey, Jr. 22; Atty.-Gen. v. Whiteley, 11 Vesey, Jr. 241; Atty.-Gen. v. Bishop of L., 2 My. & K. 586; Atty.-Gen. v. Mayer, Etc., 3 Bro. C. C. 171; Moggridge v. Thackwell, 7 Vesey, Jr. 36; Bishop of H. v. Adams, 7 Vesey, Jr. 324; Spiller v. Maude, R. L. 32 Ch. Div. 158; Atty.-Gen. v. Hicks, 3 Bro. C. C. 166; Atty.-Gen. v. Glyn, 12 Sim. Ch. 84; Green's Brice's Ultra Vires (Am. Ed.), 447; Pomeroy's Eq. Juris. (2 Ed.), 1027; Bishham's Prin. of Eq., sec. 126; Snell's Prin. of Eq. (Am. Notes), 111; Story's Equity (4 Ed.), sec. 1169; Tudor's Charitable Trusts (3 Ed.), passim. (9) A charity for the benefit of the poor -- orphans and poor children -- without more, must be applied to the sole and exclusive benefit of the beneficiaries named in the instrument creating it, and to the benefit of no one else whatever. The public -- the taxable property of the public -- can receive no part of the benefit, directly or indirectly, and all uses of it which may or do have the effect of relieving taxation are illegal and void. This principle goes so far that it cannot be intended that the poor inhabitants of a parish who receive parochial relief -- through taxation -- can receive aid from charities created for the poor inhabitants of the same parish. It must go to the poor inhabitants who do not receive alms. Otherwise the rich would be as much relieved -- perhaps more, as in this case -- out of the charity, as the poor. Hence, the appropriations by the county court out of the Aull Fund for the benefit of the school district were breaches of the trust and palpable misappropriations. Atty.-Gen. v. Clarke, Ambler, 422; Pomeroy's Eq. Juris. (2 Ed.), p. 1514; 2 Perry on Trusts (5 Ed.), sec. 698; Hill on Trustees, p. 453; Willard's Equity, 581; Tudor's Charitable Trusts (3 Ed.), 863; 1 Jarman on Wills (5 Ed.), 210; Atty.-Gen. v. Wilkerson, 1 Beav. 370; Atty.-Gen. v. Brandeth, 1 Y. & C. 200; In re Prison Charities, L. R. 16 Eq. Cas. 109; McIntyre's Admrs. v. Zanesville, 17 Oh. St. 352; Plymouth v. Jackson, 15 Pa. 44; Atty.-Gen. v. Coopers' Co., 19 Vesey, Jr. 187; Man v. Ballet, 1 Vernon 42; Waller v. Childs, Ambler, 524; Atty.-Gen. v. Hudson, 1 P. Will. 674; Tudor's Charitable Trusts (3 Ed.), 104, 105, 106 and 160, note a. (10) A charity given to a particular purpose...