USA > Vermont > The Vermont lease lands > Part 21
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It is true that here and there the court is reasonably liberal with the legislature. There have been a very few cases in which this was pro- nounced.31 But they are so rare as to be distinct exceptions. A few other
28. 4 Wheaton 518 (1819).
29. 6 Cranch 87 (1810).
30. 9 Cranch 43 (1815).
31. E.g., Victory v. Wells, 39 Vt. 488 (1866) ; and Jamaica v. Hart, 52 Vt. 549 (1880).
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cases have held the door open, to some extent, as to legislation. In Her- rick v. Randolph,32 for example, the court held that only exemptions or conditions which formed a consideration of the grant were protected by the United States constitutional doctrine from later modification. This was said in relation to a claim for perpetual tax exemption. Conse- quently, it must not be read too broadly because the court appears to have been more liberal with the legislature in respect to tax legislation than as to other matters. The Asbestos Case33 probably gave the legis- lature the most lee-way. It will be recalled that this opinion was built on the explicit acceptance of the legislature as representing the founder of the trust. This, at least, leaves the way open for legislative modifications of the system, insofar as they are kept voluntary to the trustees. How- ever, as a generalization, it is apparent that there has been, or is, little that can be accomplished by the legislature in bringing about material changes in the lease land system.
Lease land problems arising from the re-location of town lines was remarked above as an outstanding situation in which the law of Vermont has made for difficulties, and it merits particular attention. A group of cases has been selected which indicate the position, both generally, and especially with respect to the lease lands.34 The matter stands as a sig- nificant situation because of the early conditions prevailing in the area and the many changes of town lines, which have since been attempted, to rectify poor arrangements.35 The word "attempted" is used because a large share of such acts of the legislature are so written as to depend
32. 13 Vt. 525 (1841).
33. 108 Vt. 79 (1936).
34. Poultney v. Wells, 1 Aik. 180 (1826) ; Corinth v. Newbury, 13 Vt. 496 (1841) ; Spaulding v. Warren, 25 Vt. 316 (1853) ; Montpelier v. East Montpelier, 27 Vt. 704 (1854) ; S. C., 29 Vt. 12 (1856) ; White v. Fuller, 38 Vt. 193 (1865) ; Aldrich v. Griffith, 66 Vt. 390 (1893) ; Searsburg v. Woodford, 76 Vt. 370 (1904) ; Readsboro v. Woodford, 76 Vt. 376 (1904) ; Sargent v. Clark, 83 Vt. 523 (1910) ; Churchill v. Capen, 84 Vt. 104 (1911) ; Morgan v. Brighton, 95 Vt. 506 (1922) ; Underhill v. Jericho, 101 Vt. 41 (1928) ; S. C., 102 Vt. 367 (1930).
35. Supra, pp. 170-171. Aldrich v. Griffith, 66 Vt. 390 (1893), is an interesting illustration of the extent to which town lines can become a tangled problem in Ver- mont. Here, even a boundary committee appointed by the court was unable to agree on the proper location of the line between Wallingford and Mt. Tabor. And in Underhill v. Jericho, 102 Vt. 367, 369 (1930), the court admitted its troubles :
But while the statute contemplates that the charter line is the one to be located and established, it is not necessarily absolutely and precisely accord- ing to the charter, which might in some cases be quite impracticable and perhaps impossible, but as nearly according to the charter as it reasonably may be.
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on town acquiescence for fulfillment. Legally, this has been unnecessary ; the court has made it plain, more than once, that the boundaries of a town are at the mercy of the state.36 But, practically and politically, such deference by the legislature has been necessary-it is another reflection of the influence in Vermont government of the towns. It must be re- membered that the House of Representatives is composed of town dele- gates.
This technique of legislation constitutes a definite obstacle to any effort at a complete, detailed study of the lease lands-the sort of study originally contemplated herein. The list of town line acts in the ap- pendix37 is only the first step which would be required to determine what effects may have been had on particular, individual lease lands thereby. It would also be necessary to discover, in all such instances, what subsequent action was taken by the town, or towns, concerned. As the procedure has gone in Vermont, the legislative records do not indicate what finally came of the act.38 In effect, they may be referred to as "enabling acts" by which the towns may complete the process of town line change if they so wish.
The whole matter of town lines in Vermont has been so troublesome that the cases selected include some, the purpose of which is to demon- strate this. Such opinions of the court relate the circumstances clearly, and authoritatively, and show the way in which the judges have had to take notice of such tangled arrangements.
As to the lease lands the cases cited illustrate the way in which the court has fixed the trust locus of the lands in terms of original charters. And they illuminate the way in which, coupled with poor administra-
36. Sargent v. Clark, 83 Vt. 523 (1910), shows the extent to which the court has adhered to this position. Certain citizens of Pawlet went before the legislature to oppose a proposed partition of the town. Public Statutes (1906), sec. 3530, pro- vided that ". . . a town may vote such sums of money as it deems necessary . . .
for the prosecution and defense of the common rights and interests of the inhabi- tants. . 'The case arose as a result of the plaintiff's opposition to so reimburs- ing those who went before the legislature for their expenses. The court disallowed the reimbursement. It held that the "rights and interests" meant in the act are the rights and interests of the inhabitants in their corporate capacity. Hence, a town is not authorized to vote money to pay expenses incurred in opposing such an act of the legislature.
37. See App. B.
38. No. 65 of the acts of 1939 changed this situation and requires that town clerks shall certify within ten days to the Secretary of State the result of the town vote. Laws of Vermont, 1939, p. 92.
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tion, town line changes may obscure the existence of lease land parcels. They also apply to the doctrine, well expressed in the Asbestos Case,39 that the consent of all concerned is requisite to modification of the trusts. And they describe some of the difficulties into which individuals can be drawn through their connection with the lease lands.
In the opinion of the writer the most important single consideration is the proposition that a change of town lines does not allow of a re- assignment of lease lands, even in cases in which the relocation of the line throws the lots into another town,40 nor a redistribution of the avails. This position, of course, depends on the two views: that the lands are a "non-governmental" trust property, and that they are granted to the inhabitants in their social, rather than their corporate, entity. In effect, the lands become a vested right, as expressed in White v. Fuller.41
Something has been said already respecting the relations of towns and town officers to the lease lands.42 It is to be recalled that town select- men are responsible for administration of the largest number of such grants : the share for the town schools, in both Wentworth and Vermont towns; the glebe in the Wentworth towns, since 1805 when this share was confiscated for benefit of schools; the share for the social worship of God (or as it is variously called, the Gospel or the ministry lot) in the Vermont towns; the first settled minister lot in those towns in which there has been no settlement of a minister, in both Wentworth and Vermont towns; and in a few towns, the grammar school share, where that has been appropriated to the use of the public schools. The listers in the towns have a connection with all of the lease lands, as has been de- scribed.43 It should be added that the selectmen share this responsibility because they participate in final approval of the grand list. It does not require elaboration to see that the quality of work by these officials will be of influence in the end-result of the grants of public lands in the town charters.
39. 108 Vt. 79 (1936).
40. E.g., the instance of the lands at issue in the Asbestos Case, 108 Vt. 79 (1936), which had fallen within the Town of Eden; also the Churchill v. Capen, 84 Vt. 104 (1911), land. There are other instances, besides these. The case, too, of towns which are successors to old towns is difficult as seen in the Montpelier cases, 27 Vt. 704 (1854) ; 29 Vt. 12 (1856). Another instance of this was in Morgan v. Brighton, 95 Vt. 506 (1922), those towns being successors to the early town of Caldersburgh ..
41. 38 Vt. 193 (1865).
42. Supra, pp. 79-80.
43. Supra, pp. 79-80.
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The matter of protection of the obligation of contract has been ex- plored, and it was, at that point, noted that the court's activity has chiefly been directed at the legislature. There are a few lease land cases involving the local officials, principally the selectmen in regard to dis- tribution of avails. The influence of the local officials, however, is more significant than these few cases indicate; hence, some non-lease-land cases are presented, the better to define the responsibilities of such offi- cials.44 After all, as a matter of practical results, the effects of the tight rein the court holds on the legislature respecting contractual and vested rights will be minimized if no similar check is maintained at the actual administrative point of contact with the lease lands.
Distribution, by the selectmen, of avails of religious lease land first appeared as a problem for the court in Gardner v. Rogers.45 The land had been for the first settled minister and deeded to the town by the min- ister (Gardner) to be used for support of the ministry.46 In its acceptance of the gift, the town provided for a proportionate division of the avails to the various congregations, excepting the Church of England. The selectmen found that they could not determine on what basis to dis- tribute among the several claiming ministers and prayed for a direc- tion from the court of chancery. The court reviewed the history of dis- tribution of religious benefit money :
This, however, was the manner in which it was usual to direct the division of moneys appropriated for the support of the gospel. [ Proportionately to the members or adherents of the various churches.] In the act of the legislature, passed in 1794, appro- priating the rents and profits of the Glebe rights for the support of religious worship, they were to be distributed, when there was more than one religious teacher, in proportion to the number of
44. Congregational Society of Poultney v. Ashley, et al., 10 Vt. 241 (1838) ; *Gardner, et al. v. Rogers, et al., 11 Vt. 334 (1839) ; Fuller v. Gould, 20 Vt. 643 (1848) ; Stearns v. Miller, 25 Vt. 20 (1852) ; Davis v. Strong, 31 Vt. 332 (1858) ; *Universalist Society, Fletcher v. Leach, 35 Vt. 108 (1862) ; * Lemington v. Stevens, 48 Vt. 38 (1875) ; * Jamaica v. Hart, 52 Vt. 549 (1880) ; * Spiritual Atheneum Society of West Randolph v. Selectmen of Randolph, 58 Vt. 192 (1885) ; Ripton v. Brandon, 80 Vt. 234 (1907) ; * Holton v. Hassam, 94 Vt. 324 (1920) ; Town of Orange v. City of Barre, 95 Vt. 267 (1921) ; Boyce v. Sumner, 97 Vt. 473 (1924) ; *Jones v. Vermont Asbestos Corp., et al., 108 Vt. 79 (1936) ; Doubleday v. Town of Stockbridge, 109 Vt. 167 (1937). Those preceded by an asterisk (*) pertain to lease lands.
45. 11 Vt. 334 (1839).
46. This was the same Gardner, and the same land, which figured later in Pownal v. Myers, 16 Vt. 408 (1844), supra, pp. 128-129.
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rateable polls belonging to the respective congregations resident in the town. The rents of the ministerial lands, by another act passed in 1798, were to be applied to the use of the several settled ministers, in proportion to the number of their several congrega- tions. By an act passed in 1818, the rents of the same lands were appropriated to the use of the religious society or societies in such towns, in proportion to the number of which said society consists it must be to some society or association where there is a minister officiating, and it must be contributed to the support of the gospel. . . . It does not follow that everyone, who is or who claims to be a preacher, is entitled to receive any proportion of the money unless he is preaching to some society, either purely volun- tary, or formed agreeably to the directions of the statute.47
This did not settle the problem, however. Universalist Society, Fletcher v. Leach presented the additional question of determination of the actual membership of the various churches, for purposes of dis- tribution of avails. The Society complained that they had been mis- treated because the selectmen had eliminated six names from the roster submitted by the Society. The Society depended on its church orders which permitted withdrawal of membership only by written request and payment of all arrearages. The selectmen were upheld by the court in a way which is of considerable importance for all of such classes of lease lands. It was held that the legislation did not prescribe, or intimate, the criterion by which to determine the number of members of the re- spective societies entitled to participate in the fund. The court declined, either under statutory or common law authority, to accept the church's records as conclusive. Hence, it was held that this function of the select- men is "judicial" in nature and that they were not responsible for any error of judgment in ascertaining the facts, while acting in good faith and with reasonable diligence. A clear distinction was made in the duty of the selectmen : "It is clear that after the number of the members has been determined, the further duty of the selectmen is essentially minis- terial."48
In Spiritual Atheneum Society of West Randolph v. Selectmen of Randolph the problem again appeared.49 The selectmen were again up- held by the court, albeit indirectly. The Society had been refused a due share of the avails on the ground that it was not a proper religious so- ciety in the contemplation of Revised Laws (1880), sec. 2707, and peti-
47. 11 Vt. 334, 337 (1839).
48. 35 Vt. 108, 114 (1862).
49. 58 Vt. 192 (1885).
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tioned for a mandamus to require of the selectmen a proportionate share of the avails. The court refused to consider the nature of the Society and simply dismissed the petition on the ground that the money was already distributed and, hence, out of the control of the selectmen. This, of course, had the effect of fortifying the discretionary nature of the selectmen's activity.
These few cases are all. But it is to be observed that the selectmen fared well. One might presume that the ministerial part of their respon- sibility had been handled well, but this does not altogether fit with what was discovered, informally, during the research for this study.
Selectmen have figured, as well, in suits in respect to their respon- sibilities for the making of leases. Lemington v. Stevens is such a case and does not redound to the record of the selectmen. This was the case seen earlier in which all the town rights were conveyed in one lease.50 The lease was granted and signed by two of the three selectmen. It con- tained a covenant that before cutting of any timber full and ample se- curity should be given for damage to lots occasioned by such cutting. The defendant had offered, before entering, to pay into the town treas- ury $550 forever, the interest thereof to pay said annual rent. Both this, and a subsequent tender of rent were refused. The land was wild and uncleared and of no value to the lessee except for taking the timber, which he proceeded to do ; whereupon, the town sued.
The town's complaint was on four counts: 1) for recovery of the value of stumpage under the covenant; 2) that the lease was void be- cause it should have had concurrence of all three selectmen ; 3) that the selectmen had attempted to lease the lot in question (the minister lot) for a longer period than the law allowed ; and 4) that the lease was void for want of acknowledgment because such acknowledgment had not oc- curred until after those selectmen had left office. The town lost on all counts : on the first because there were no net proceeds to collect ; the second was disregarded and not commented on by the court; on the third because the habendum covered the requirements of General Statutes (1863), Chapter 27, sec. 351; and as to the fourth, the court held that General Statutes, Chapter 65, secs. 1 and 11, covered the situation. The essential significance of the opinion, in the writer's view, is that despite a peculiar train of events, the selectmen, or a part of them, were upheld
-
50. 48 Vt. 38 (1875). Supra, p. 110.
51. Supra, p. 110.
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by the court. It regarded the selectmen as adequate and proper agents of the town in the making of the lease, which view has been upheld in the later cases of Jamaica v. Hart,52 Holton v. Hassam53 and the Asbestos Case.54
The Holton v. Hassam case related the record of leases from the selectmen, and a poor record it was. The matter was not directly in issue in the case, but it is only too apparent that in the matter both of records of leases made and in respect to collections of rent the select- men were not in good position. The Asbestos Case carried the recogni- tion of the selectmen far enough to find them sufficient, without the consent of the inhabitants of the town, for conveying the land in fee, under the provisions of the 1935 act in issue.
So much for the selectmen. The record is brief and part of it not good. It is very evident, from any contact with lease land affairs that the very brevity of the record is significant of the failure of judicial control of the local officials in respect to lease land problems.
No cases on lease lands were found involving the listers, although as has been related earlier in this study, the writer encountered situa- tions in which the listers' activities were not as they should have been. Other cases had to be used to give a picture of the legal aspect of the listers' work. The central point to be discovered is that, as with the se- lectmen, the court has found the listers' duty to include an important element of discretion, coupled with certain ministerial responsibilities.
Congregational Society of Poultney v. Ashley, et al., was a complaint that the church trust fund had been improperly taxed.55 In the opinion, the court took the strongest view in favor of exemption of eleemosynary institutions, including a broad interpretation of the intent expressed in the state constitution. (It is somewhat at variance in this position with the court's attitude in Herrick v. Randolph.)56 The court made it plain that the act of 1825 forbade the listers from laying an assessment against such property, and the opinion dwelt at length on the importance to such institutions of land as an asset.
Fuller v. Gould made an expression of the nature of listers' duties which is vague enough :
52. 52 Vt. 549 (1880).
53. 94 Vt. 324 (1920).
54. 108 Vt. 79 (1936).
55. 10 Vt. 241 (1838).
56. 13 Vt. 525 (1841).
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Listers, though not judicial officers, and though the duties re- quired of them in many respects are ministerial, still in others . . . act upon their best discretion and judgment ; and when they have jurisdiction of the person and subject matter, they are not responsible for any illegality, or error of judgment into which they may have fallen.57
This sounds well and good until it is recalled how little success the Commissioner of Taxes has had in requiring data on tax exempt prop- erty.
In Stearns v. Miller the court undertook to describe specific respon- sibility of the listers, though the tone of the opinion seems to manifest some reluctance to go far on that road. The case was a complaint that the listers had set too much acreage against the plaintiff. The court said :
Now the amount of the appraisal, is undoubtedly a matter of judgment and discretion, and for the exercise of which the party is not to be made liable, except for express, or implied malice. ... But we are not prepared to say, that setting the number of acres of land appraised . . is anything more, ordinarily, than matter of fact.58
Boyce v. Sumner was a complaint of a charitable bequest, an old ladies' home, having been taxed. In this instance, the court was outspoken and firm:
It is urged by the defendant that the action of the listers in mak- ing the assessment was judicial and final, and that their judgment as to the amount of property, unappealed from, was conclusive. The principle here invoked has no application when, as in this instance, the property assessed was not taxable under the law, and consequently was outside the listers' jurisdiction. Their as- sessment of property not within their jurisdiction was without warrant of law, was void and may be impeached by the plaintiffs, 'in any way and at any time, for it is no judgment in law.'59
Perhaps the most significant point, for the purposes of a study of the lease lands, is that the listers were capable of viewing their work as they did, both in the field and in the courtroom.
The importance of the listers' work was expressed in Ripton v. Bran- don,60 a pauper case, in which it was stated that the quadrennial ap-
57. 20 Vt. 643, 649-650 (1848).
58. 25 Vt. 20, 25 (1852). 59. 97 Vt. 473, 482 (1924).
60. 80 Vt. 234 (1907).
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praisal of the taxable real estate in a town, duly executed, verified, and filed according to law, is a public document, and therefore admissible in evidence on the question of the value of such real estate.
Earlier in the study it was asserted that one of the hazards affecting the status of the lease lands was the law regulating assessment of real property.61 This point is brought forth in Orange v. Barre62 and in Doubleday v. Stockbridge,63 the latter containing a full exposition of the matter, including a résumé of the history of pertinent legislation. The situation is that in Vermont, except for a short time in the 1880's, the legislation has provided that the assessment on real property shall be set either to the owner or to the possessor. It is the opinion of the writer that this is of the utmost consequence in the history of the lease lands. It is by this provision that listers are in a position to lose sight of the sequestered nature of lease lots, by the simple device of setting an assessment of them against the lessee, or assignee of the lessee-who- ever may happen to be in possession. In view of the conditions which were described at some length, among which is the tendency of occu- pants of lease land to lose sight of the nature of the holding, it is not surprising to find such tenants accepting a tax bill on the land. In fact, the Doubleday case64 concerned a situation of land which had been leased by the town for 999 years (not public lands, as of this study) and which had passed through various conveyances.
The record presented is not very satisfying or conclusive. It is thought that this is representative of the true situation prevailing in respect to the operations of the local officers, as related to the lease lands, so far as any judicial control over them has existed. It will be recalled that the legislative Commission on Forest Taxation reported similar views, as respects the listers.65
TRUSTS
A group of cases has been selected which, between them, represent the principal holdings of the Vermont court respecting trusts, as they relate to this study.66 For the most part, it has all appeared, at various
61. Supra, p. 118.
62. 95 Vt. 267 (1921).
63. 109 Vt. 167 (1937).
64. Ibid.
65. Supra, p. 79, n. 40.
66. Pownal v. Myers, 16 Vt. 408 (1844) ; Montpelier v. East Montpelier, 27 Vt. 704 (1854) ; S. C., 29 Vt. 12 (1856) ; White v. Fuller, 38 Vt. 193 (1865) ;
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points during the preceding analysis and thus constitutes a recapitula- tion.
It would seem that the central view of the court, as a controlling in- fluence on the lease land system is the doctrine that the grants of land, in the town charters, constitute a trust, and that this trust is perpetual and irrevocable. Among other cases, this position has been expressed in strong fashion in the three Caledonia County Grammar School cases,67 the Ward Case68 and the Asbestos Case.69 O'Brien v. Holden,70 while not involving lease lands, makes the point, in its holding respecting trusts generally, that trusts are to be so regarded unless the granting instrument clearly contains terms of reservation to another effect. This position has made for the continuance of the lease land system; even the Asbestos Case opinion and the 1937 legislation accept the proposition. It has led to the limitations we have observed respecting any power of modification by the legislature, and it has likewise served as a limitation on the various trustees.
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