Trotter v. Bd. of President & Dirs. of St. Louis Pub. Sch.

• Decision Date: 31 January 1845
• Parties: TROTTER v. THE BOARD OF PRESIDENT AND DIRECTORS OF ST. LOUIS PUBLIC SCHOOLS.
• Court: Missouri Supreme Court

9 Mo. 69

TROTTER

v.THE BOARD OF PRESIDENT AND DIRECTORS OF ST. LOUIS PUBLIC SCHOOLS.

Supreme Court of Missouri.

January Term, 1845.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

J. SPALDING, for Plaintiff.

1. The right of the plaintiff below is limited and governed entirely by the words of the second section of the act of Congress, of 13th June, 1812, and is confined to “all towns or village lots, out-lots or common-field lots,” included within an out-boundary line directed by that act and not rightfully owned or claimed by any private individuals. 2 Story's Laws, 1257, act of June, 1812; 3 Story's Laws, 1972, act of May 26, 1824; 4 Story's Laws, 220, act of January 27, 1831; act of General Assembly of Missouri, February 13, 1833, p. 37, incorporating board of trustees.

2. The lands reserved for the use of schools in the 2nd section of the act of Congress of 13th June, 1812, is confined to what was either a town or village lot, out-lot, or common-field lot, before or at the transfer of the country to the United States. First, the words in the first section undoubtedly apply only to lots, as such, under the former government, and the words in the second section reserving for schools, are identically the same. 6 Mo. R. 292-3-4 and 297; Hammond v. Board of Public Schools, 8 Mo. R. Second, the scope and purview of all the acts of Congress relating to the lands and claims and donations, or confirmations of the same in Missouri, show that only those claims are meant which originated under a former government, French or Spanish; and if this reservation applies to others, it is a solitary instance in that branch of congressional legislation. Third, the phraseology of the act of 26th May, 1824, indicates that the lots reserved had a previous existence as “lots,” and were not mere vacant ground, or space; see the words “so many of said vacant town lots,” &c. Fourth, an examination of the words in the 1st and 2nd sections of act 13th June, 1812, shows that both the confirmation and reservation of lots applies only to Spanish lots. There could be no town lots, no common-field lots, but by Spanish authority. In the 2nd section the words are in the alternative. 12 Peters' R. 350, Strother v. Lucas. Fifth, the words “out-lot” in the act of 13th June, 1812, as applied to St. Louis, adds nothing to the meaning of the act, as there were no “out-lots” other than the common fields; but as applied to several of the other villages enumerated in the act, it was necessary, because there were “out-lots,” not common-field lots, at those villages. See record, p. 41, Milburn's evidence; do. p. 43, Conway's evidence; do. p. 51, Brown's testimony. See the plats of Ste. Genevieve, and New Bourbon in the record, which are rural villages, and made up of large and frequently irregular lots, many of them called “out-lots.” Sixth, the situation of the villages of St. Charles and Carondelet, requiring the extension of village lots as the towns increased, to be made on the commons, accounts for the phraseology of the second section, or “held as commons belonging,” & c. Seventh, the letters of Penrose and Riddick, see 2 Land Documents, p. 376, show that “out-lots” and “common-field lots” are synonymous, and that vacant pieces of ground not designated as lots, were not intended by said act of Congress. Eighth, the report of the old board of commissioners, 2 Land Documents, p. 388 to 683. Report of recorder acting in lieu of the board, 3 Land Documents, p. 274. It appears that the old board never call common-field lots, out-lots, but that the recorder applies the two words to be the common-field lots of St. Louis, indiscriminately: but he did not apply the word “out-lot” to any other piece of ground than common-field lots at St. Louis.”

3. If the reservation in the 2nd section of the act of June 13th, 1812, embraces town or village lots, out-lots, and common-field lots, as they were at the date of that act, it is yet to be confirmed to the towns or villages properly so called, and does not refer to the limits of them as incorporated under the American government, and therefore does not include the ground in question. First: because the local legislature could include as much territory as it pleased in the town, and as the incorporation was the act of a court, Congress could not know the size, and would not have made a reservation thus in the dark. Second: St. Louis as then incorporated, contained many square miles, lying in the neighborhood of the town proper, as the decree of the court and the survey show. Third: in 1812, the town proper did not extend as far as the ground in question. See testimony of Moore, p. 37, of record, and of Rene Paul, p. 29.

4. The out-boundary line as required by the 1st section of the act of 13th June, 1812, would not embrace the ground in question. See the plats and the testimony of Milburn, &c. First: the words of the act, 1st section, requires out-boundary lines to be run so as to embrace the villages and the out-lots, common-field lots, and commons, thereto respectively belonging. Such lots therefore to be embraced must belong to the village; a vacant unappropriated space of ground, does not and did not belong to the village of St. Louis; and the lot in question did not belong to it. Second: but the “common-field lots” did belong to their respective villages and so did the commons and “out-lots,” in the instances where such commons and out-lots existed. 12 Wheaton's R. 441, White's Comp. These provisions for making new settlements were not observed here it seems; but the very minute enactments show that the government only could make towns or lots, &c., and also when a town was made, it comprehended lands other than the village lots, &c.”

5. The act of incorporation of plaintiff divests the trust fund, and is therefore unconstitutional and void. Acts of session of November, 1832, p. 37. First: all free white persons as the city was then, or should be, are members of the corporation. Second: the directors are to be chosen by all free white males residing in the city, as the same may be extended from time to time.

6. The jury were not legal and impartial. 3 Bacon's Abr. 756. Partiality of jurors, good cause of challenge. “If an action be brought by corporation,” &c. 2 Johns. R. 194, Wood v. Stoddard; it shows that inhabitants of a town were not proper jurors, in a suit the avails of which in part went to the support of the poor. 19 Johns. R. 121. This case shows how careful courts are even at this day, that jurors shall be omni exceptione major. 2 Caine's R. 133; at the close of the opinion, the court say that “underwriters can hardly be proper jurors in the cases in which persons pursuing the same business are parties. Jurors should be omni exceptione major. Cranch, 290, McQueen and Child v. Hepburn, showing at page 297, that jurors must be omni exceptione majores. 3 Blacks. Com. 363, as to Challenges, “ propter affectum,” &c.”

HENRY S. GEYER, for Defendant. The decisions of the Court of Common Pleas are maintained to be correct upon the state of facts presented by the record on the following grounds:

1. The reservation and subsequent relinquishment of lots were made for the benefit of the inhabitants then and future, of the town as it was in 1812, or as it was directed to be surveyed by the act of 13th June, 1812, and in either case the modern city is included; and whether the town contemplated by Congress was of greater or less extent, the power vested in the Legislature of the State, to provide for the disposition of the lots reserved and relinquished by the act of January, 1831, committed to the Legislature the choice of trustees or agents, which power was rightfully exercised in the act incorporating the plaintiffs; consequently there is no valid objection to the right of the plaintiffs to recover any lot, duly set apart for the use of schools, within the out-boundaries of the survey directed by Congress. 2 Story, 1257; 3 do. 1973; 4 do. 2220; acts 1832, p. 7.

2. Whether the land in controversy is or is not within the reservation and relinquishment for the use of schools, it is not land, the sale of which ever was authorized by law, and therefore not subject to entry under a New Madrid certificate. The defendant is, consequently, a mere trespasser, claiming by possession only, and is not in a condition to controvert the propriety of the survey as made and returned, or any other official act of the officers of the United States, within the scope of their authority. ee acts of Congress above cited, and act of Congress of 3rd March, 1811, 2 Story, 200; 17th February, 1815, 2 Story, 1500; Geyer's Digest, 484; Hunter v. Hemphill, 5 Mo. R. 119.

3. Whether the defendant is or is not allowed to dispute the effect of the documents given in evidence--they were duly authenticated by the officers having custody of the originals, and the originals are the acts of officers intrusted by law with the authority to make them They were pertinent to the matter in controversy, and were therefore competent evidence both by statute and upon general principles. If there was anything in either of them irrelevant to the issue, that ought to have been pointed out and distinctly objected to; but as the official acts of officers, performed within the scope of their authority, they were at least prima facie evidence. Acts of Congress, 2 Story, 1257; 3 do. 1973; 4 do. 2200; Rev. Code Mo. 251; 1 Starkie, 156, 161; United States v. Perchman, 7 Peters, 53.

4. It was the province of the court, and not of the jury, to decide what the act of Congress required to be included or excluded from the general survey of the town. If the question was at all open to inquiry, whether the act of the officer to whom the duty was intrusted had judged rightly in a matter confided exclusively to him, his judgment, when not questioned by the United States, is not to be overruled by the opinion of a jury, and still less by the opinion of witnesses, who had not access to...