USA > Vermont > The Vermont lease lands > Part 28
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Another aspect of this rigidity is found in the cases of town lines being changed with a consequent effect on school districts. In such acts there will be sufficient provision made for redistribution of property, other assets, and liabilities to adjust to the new jurisdictional relation- ships. But not so for lease land income involved.
Here the doctrine of executed grants has prevailed, in conjunction with the doctrine that the beneficiaries of the trust are the inhabitants as they were organized at the time of the founding of the trust, and the further doctrine that the lease lands constitute non-governmental prop- erty.111 In such cases the original town retains the benefit, and those people of the town who find themselves translated into a new jurisdic- tion are without the benefit. A few acts have authorized a distribution of the avails, but only on a basis of the towns approving the change. In
110. There were, however, cases in which it was provided that school dis- tricts might be set up in the unorganized area, under the administration of the county treasurer.
111. See the opinions in the Montpelier cases, 27 Vt. 704 (1854) ; 29 Vt. 12 (1856). Supra, pp. 149-151.
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fact, the problem of dividing the avails of lease lands has occupied some attention and has been the subject of various attempted solutions from the first.112 Even yet, in the twentieth century the effort still continues. The act of 1908, to which reference has otherwise been made, is such an attempt.113 And as was noted earlier, it in turn has undergone modifica- tions.
In recent years much of the legislation compiled here has dealt with local educational fiscal administration and fiscal reporting. It cannot be said to have been successful. Otherwise much of the data which could have served this study would have been available. The condition of town reports, as will be described later, supports this conclusion.114
THE "GOSPEL" RIGHT
Somewhat surprisingly, there were not a great number of laws passed dealing with the "Gospel" right.115 This is thought to be surprising because of the proliferation of sects during the nineteenth century and the intense feeling which sectarianism engendered and which could well have been reflected in the deportment of the legislators, as were the pres- sures respecting town school affairs.
The eighteenth century legislation unmistakably related the parish and town and made religious matters, at the least, a quasi-town function, justifying Judge Moulton's assertion that the administration of religious lands is a legitimate town function in Vermont.116 It provided that pro- posed religious activities, such as the building of a house of worship, settlement of a minister, etc., should be accomplished through action in a duly warned town meeting. It authorized the laying and collecting of a tax, just as in the case of other taxes. Later acts allowed for variations of religious belief and provided escape from such taxes by those not
112. Laws of the State of Vermont, Revised (1797), pp. 493-499.
113. Supra, p. 254. This act is significant, too, as a full-fledged final recogni- tion of the triumph of the public high school over the private academy. It is in this act that one sees a complete acceptance of the former in the terms of the provisions for distribution of avails of grammar school lands. It constitutes a final answer to the issue of town versus "county" administration of secondary education. 114. Infra, pp. 295-300.
115. App. B, sec. 21. These are the shares variously referred to as for "the support of the Gospel," "the social worship of God," and "the support of the min- istry."
116. Jones v. Vermont Asbestos Corp., et al., 108 Vt. 79 (1936). Supra, p. 132. n. 148 .-
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adhering to the majority church.117 A few years later the development of religious heterogeneity was accommodated by legal recognition of volun- tary religious associations which were authorized to carry on all neces- sary functions, including property holding, but were not incorporated, and were distinctly assumed to be minority groups in that their procedure was to be otherwise than by the town meeting method.118
The first act in which there was detailed specification for adminis- tration of the Gospel lands was passed in 1798.119 The act directed the selectmen to administer such lands as were reserved to this right "and still remaining to such use."120 The quoted phrase is unexplained in the records, and the questions it raises go unanswered-why the legislature should have assumed that some Gospel lands might have been "lost." There is the possibility that the legislators were thinking in terms of the New Hampshire practice.121 Or they may simply have accepted the idea that the turmoil of land matters would have resulted in some losses. (The phrase recurs in a later act on the same subject.)122 The act au- thorized leases up to terms of fifteen years. The avails were to be dis- tributed among the religious societies in the town proportionally to the numbers in the respective memberships. If no religious society. were formed, the avails were to be loaned at interest until such time as a society should exist.
The authorized term for leases was changed in 1803 so that the selectmen could make leases for any term of time as they deemed best.123 The proportional method of distribution of avails continued until 1868, since which time the law has specified that the avails shall be divided equally between the religious societies.124 Two limiting provisions were later established by the legislature. The first was that, to be eligible in the distribution, a society must hold meetings on at least one-fourth of the Sundays in the year.125 The other was a detailed effort to describe and define what legally constituted a society, stating that only those thus
117. See Slade, State Papers, pp. 472-473, Oct. Session, 1783.
118. Laws of the State of Vermont, Revised (1797), pp. 474-479.
119. Laws of Vermont, 1798, pp. 17-19.
120. Italics mine.
121. See Baptist Society in Wilton v. Town of Wilton, 2 N. H. 508 (1822). Supra, pp. 135-138.
122. Laws of Vermont, 1815-1818, 1818, pp. 84-85.
123. Ibid., 1803, Oct. Session, pp. 82-83.
124. Ibid., 1868, p. 32.
125. Ibid., 1869, p. 39.
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qualifying should receive the avails.126 Then, in 1878, a further change in administration was made.127 After this, if there were no religious so- ciety to receive the avails, the income could be used variously, as deter- mined in the town meeting, to pay for preaching, for the support of schools, or for the improvement and care of burial grounds.
As to Gospel lands in unorganized areas, no enactment was found prior to 1852 establishing any procedure or machinery of administration. This was the general act, referred to elsewhere, which covered this right as well as those for the first settled minister, the glebe, and the support of schools.128 The county treasurer was made responsible, and the avails from all four of the shares were to go to the support of schools. The act specified that its provisions were limited to such time as such areas should become organized. In consideration of the fact that the long period before this date saw important areas not yet organized, it is not too difficult to imagine that the public rights could have suffered at the hands of speculators and squatters.
One final point is to be noticed respecting this topic. There are far fewer acts incorporating particular church groups than one might ex- pect in the face of the many churches which existed. After 1870 there is an increase in such legislation but not to any level that would be sup- posed. This is due to the effects of two legislative conditions. One is the early recognition of voluntary associations. The other is that some of the large denominations incorporated on a state-wide basis, through the medium of their annual conferences, or otherwise, and these corpora- tions functioned as "holding societies" for the individual churches.
THE GLEBE
Although the glebe was not accorded separate treatment in the analysis of the work of the court, it merits a section of its own in the compilation of laws because of the distinctive characteristics of those laws and the results thereof.129 It is true that the principal acts respecting this right cover both that and the S. P. G. right, but the effect of the decisions of the United States Supreme Court resulted in the two rights going different ways.180
126. Ibid., 1874, pp. 57-58; General Statutes (2nd ed., 1870), ch. 90, sec. 2.
127. Laws of Vermont, 1878, p. 104.
128. Ibid., 1852-1854, 1852, p. 63.
129. App. B, sec. 22.
130. See Town of Pawlet v. Daniel Clark and others, 9 Cranch 292 (1815), and S. P. G. v. Town of New Haven and Wheeler, 8 Wheaton 464 (1823).
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It was noted, in the discussion of the S. P. G. legislation,131 that the first act-that of 1787-authorizing the selectmen to administer that and the glebe right did not provide for any disposition of the avails. One further aspect of this law is of some interest. It would appear that the legislature had not by then generated its later extreme antagonism toward the Episcopal Church. The following section appears in the act :
Provided . .. that nothing contained in this act shall extend so far as to prevent any Episcopal Ministers, during the time of their ministry, that now are, or hereafter may be, in possession of any glebe, lot or right, or actually officiating in said town, where the land lies, and is an ordained Minister of the Episcopal Church, from having the management of such lots, and the avails arising therefrom, during the present septenary.13
This is a far cry from the terms of the acts of confiscation of 1794 and 1805 and the intense effort made in the courts thereafter. It will be recalled that the determining suit-Pawlet v. Clark133-arose in a town where the situation was just that protected by the clause quoted above.
Another interesting legislative aspect of the glebe is the matter of the 1794 confiscation having been repealed in 1799. Just why this should have occurred is not clear.184 In any case, Judge Story found it, and the subsequent 1805 confiscation, ineffective. Inasmuch as the court accepted the validity of confiscation, the 1794 act constituted an executed grant which the legislature could not revoke. Thus, the requirement in that act that the avails should go to religious purposes is the effective direc- tive rather than the later one devoting the avails to the support of schools.135 Vermonters have exhibited their customary pragmatism in the matter. It seems that in some towns the glebe benefits religion, in others education. As to unorganized places, as has been seen above, the schools benefit.
131. Supra, pp. 245-246.
132. Laws of Vermont, 1787, Oct. Session, pp. 7-8.
133. 9 Cranch 292 (1815).
134. However, it is probable that the 1799 repealer was passed by the legisla- ture as a response to unfavorable judicial action respecting the confiscation. The selectmen of Manchester attempted to carry out the provisions of the 1794 act in litigation against Daniel Barber. In 1798 the United States Circuit Court, in an unreported case, ruled against the selectmen and held the 1794 act to be unconstitu- tional and void. No mention of this is made in the 1799 repealer. See infra, p. 302, n. 120.
135. Judge Story considered the 1805 act as simply broadening the scope of authority of the towns as trustees.
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Little else need be said. Later acts affecting the glebe are simply general acts affecting all classes of lease lands, such as the listers' laws, other than several special acts involving individual town land situations.
FIRST SETTLED MINISTER RIGHT
There is not a great deal that need be said respecting legislation dealing with the right for the first settled minister186-most of it has al- ready been accounted for in the discussion of tax exemption, the Gospel right and some other topics. There has been very little legislation deal- ing particularly with this right ; it has for the most part simply been in- cluded in the provisions of acts applying to all, or several of, the groups of lease lands, an example being the 1852 act respecting the lease lands in unorganized places. The legislative relationship is particularly close with the Gospel right ; one finds either that the minister right was taken up by a settled minister and essentially disappeared as sequestered land, or, in the remaining towns, that it has been subjected to the same pro- visions as those established for the Gospel right.
There are a few distinctive legislative conditions to be observed, how- ever. For example, where the selectmen, or the county treasurer for un- organized areas, were given authority to lease public lands, it was cus- tomary to set a five-year term for leases of this right, whereas the term for the other rights would be without limit. An important special treat- ment of this right referred to tax exemption. It is of sufficient conse- quence to be quoted :
. . . the right granted by charter to the first settled minister in any town in this state, shall after such settlement, be considered remaining to a pious use, and the said right, and every part there- of, shall be free from taxes so long as it continues the property of such minister, and he has the pastoral charge of the church and congregation, over which he was settled.137
This is not only of interest respecting the matter of tax exemption. It is also the nearest approach to legislation which might be thought of as authorizing the practice of this right going in fee simple to the minister. Actually, the practice had existed before this act, and it simply took notice of, and accepted, an established customary rule. Among the acts compiled here are a number referring to matters in particular towns.
136. App. B, sec. 23.
137. Laws of Vermont, 1811-1814, 1814, pp. 82-83, sec. 2. The first section of the act declared general exemption for all the public lands.
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For the most part, they authorize the town to use the right for the bene- fit of the schools until such time as a minister shall be settled.138
Other aspects of the history of the right for the first settled minister are dealt with later in the consideration of the administration of the pub- lic lands.139
GENERAL COMMENTS
The analysis which has been made of the pertinent legislation serves, it is believed, to support and justify the view which has been expressed, that the legislature has failed to provide laws, either toward the estab- lishing of a sound operating policy or toward requiring adequate ad- ministration, by which the public lands granted in the town charters could be assured of furthering the public policy for which they were de- signed as instruments. Or, to put it in another way, the legislation has been inadequate to assure that the sequestration of this great acreage should contribute to the welfare of the people of the state.
A final word is in order respecting the early period. One finds vari- ous acts making changes in existing legislative provisions, which changes are of very questionable validity. Examples, which came under judicial scrutiny, were the 1799 and 1805 acts respecting confiscation of the glebe. It will be recalled that Judge Story asserted them to be ineffective to change the grant to the towns made in the 1794 act.140 There were two outstanding occasions in which such legislative overhauling was in- dulged in. Both in 1787 and 1797 there was a general declaration that all previous legislation (with specified exceptions) was repealed, and new laws were written as replacements. In the present writer's view, some, at least, of such revision would have met judicial objection as af- fecting vested rights, if the courts had then been in a position to police the matter. At any rate, this situation needs to be known as it most cer- tainly could contribute to early confusions respecting the handling of the lease lands.
138. An exceptional one was that dealing with the right in Ripton. Here the right was declared to have become inoperative because of no ministerial settlement, and the land was granted to the town for the use of the schools. Ibid., 1835-1837, 1835, pp. 147-148.
139. Infra, pp. 303-309.
140. Town of Pawlet v. Daniel Clark and others, 9 Cranch 292 (1815).
Chapter VII
ADMINISTRATION OF THE LEASE LANDS
The subject matter of this chapter was initially planned to have been the principal aspect of the study of the lease lands.1 As it stands, the chapter is relatively brief in comparison with what was planned, and the material in it is relatively fragmentary. This condition is to be taken as symptomatic of the condition of administration of the lease lands. The chapter in its present form, in effect constitutes a demonstration of the actual situation prevailing respecting its subject matter. Nevertheless, it was thought to be worthwhile, for an introductory study, to proceed so far as the available material permits. Thereby, administrative condi- tions of the various classes of lease lands are made that much clearer, and it will offer an advanced point of departure for any more extensive study. It can, in other words, eliminate the need, in future investigations, of much of the trial and error procedure by which the present research had to be defined.
The different groups of lease lands are to be considered separately here. The procedure will be to study them in an order corresponding to a descending scale, or degree, of administrative centralization. On this basis, the college right, administered by the University of Vermont will take precedence, followed by the S. P. G. right, administered by the Episcopal Diocese of Vermont. These two are the most wide-spread of the rights. Each of them embraces nearly a half of the towns in the state. The right for the county grammar school stands next in order. In this case, the lands extend to a maximum area of one county for any given administrative control. The several rights administered by the towns in- dividually follow, and the survey of groups of lease lands will be con- cluded by the right for the first settled minister.
A speculation developed as to whether the larger, more centralized operations would demonstrate any difference in quality of administra-
1. See supra, pp. 3-7, for recital of development of the study.
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tion from that of the more decentralized groups of lands. It would seem, now, that some degree of difference can be discerned.2
Certain it is that the more centralized administrations provided more in the way of records for study. This, of course, is partly due to the fact that larger acreage would automatically lead to more records and partly to the fact of those records being accumulated in one place. (In other words, the college rights for, say, fifty towns should all be recorded at the University, whereas the Gospel rights in fifty towns would be re- corded in fifty different places.) But the difference goes far beyond these factors.
Another distinction was in the extent to which the writer could ob- tain relatively clear and correct verbal information from those con- nected with the lands. The more decentralized the administration, the more vague and inaccurate were the prevailing impressions, not only respecting the administration of the lands, but as regards the very na- ture of the lease lands.
A third interesting phenomenon is that the farther down the scale of centralization one proceeds, the more numerous are the instances of litigation, at least as to those reaching the Supreme Court.
All this is not to say that the lease land administrations conducted by the University and the Diocese are to be complimented. An example will serve to demonstrate the distinctions intended. In no case has it been possible, within the limits of this research project, to ascertain with pre- cision how much income is derived from the respective groups of lease lands.3 But in the case of the University and Diocese approximations, which give the appearance of being fairly close, are possible ; whereas, with the others no estimate, however loose, can safely be made.
THE UNIVERSITY LANDS
The University has by far the most business-like establishment for the administration of its lands. (Closer acquaintance with it leads one to conclude that this is a fairly recent development.) The present arrange- ment was set up by Mr. H. M. MacFarland and further refined by Pro-
2. To one of a skeptical turn of mind, the difference might be described as that between "bad" and "worse."
3. The Addison County Grammar School records may be regarded as some- thing of an exception. One can discover the amounts received each year. It is not, however, a full-fledged exception because of such practices as carry-overs of past due rents.
1
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fessor A. D. Butterfield, who worked with Mr. MacFarland from 1927 until the latter's death in 1942 and then succeeded to the responsibility. At present the University Land Office occupies a spacious, well-equipped room in the institution's administration building.4 It is staffed by Pro- fessor Butterfield, as Land Officer, with such stenographic assistance as he needs. This was the last of the groups to be studied in this research, and the writer experienced a sense of gratification at this scene, in con- trast to the physical conditions encountered in contacting other land administrations. Professor Butterfield offered every assistance he could and made available whatever was desired, with the amiable approval of the University's president.
However, no long time passed before it became plain that the ap- pearance to some extent belied the fact. The land officer is interested, well-intentioned and intelligent. But he is not in a position to do a thor- ough job. He is ambitious to proceed with the cleaning-up and further development of the land administration and expressed deep satisfaction that the present study had been undertaken. But he has had too little time to devote to the lands. At the time of this research, he was fully occupied with the intricacies of the task of administering veterans' affairs at the University. Before that, other similar chores, such as National Youth Administration affairs, have been given him. So that, in actuality, one cannot but conclude that the administration of the University's lease lands has been at something of a standstill.
During the course of the analysis of the Vermont court's relation to the lease lands, the occasional nature of the University's efforts with its lands was mentioned. The records in the Land Office substantiate this characterization. They are spotty. There were few early records of a systematic sort. There are several file boxes containing old, as well as more recent, leases. These are not altogether properly sorted or ar- ranged, and it would be tiresome to locate particular lease forms if there were a need to do so. In fact, the collection of leases is anything but com- plete. It has been remarked that no copy could be found of the 1804 re- port to the legislature respecting the lease lands. Professor Butterfield appealed to the president's secretary, who searched through the execu- tive files for it, without success.5
4. This office is responsible not alone for the college lease lands. It also ad- ministers the other extensive land holdings of the University.
5. It seems to have been available a quarter century ago because in Mr. Mac- Farland's own report he purportedly quotes from it, extracts of which quotation will presently be presented herein.
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There is evidence of a period of effort during the first half of the nineteenth century. A note-book, done in pencil, is an attempted com- pilation of the University's rights, by a recapitulation of the relevant town charter provisions. The note-book is titled, "Official transcript from the Records of the Charters of Lands granted under the Authority of the State of Vermont." The cover page carries the following inscrip- tion :
Showing the several townships in this State, in which Lands are reserved for the use and benefit of the University of Vermont and the quantity of Lands thus reserved in each township or grant respectively.[6] Taken from the Records aforesaid, remaining in the Office of the Secretary of State at Montpelier, the 14th Day of October, 1834.
One can assume that the note-book was prepared in connection with some effort by the University to secure college rights not already under its control. At the end, immediately following the data for the towns, is a certificate signed by Timothy Merrill, Secretary of State: "I hereby certify that lands are reserved for the use of a seminary or college in the charters of the towns following, viz ;-. " Then follows the list of towns preceding the certificate in the note-book. It closes with the statement : "The quantity of lands reserved in the foregoing towns is as described in the foregoing pages."" Penciled figures below this indicate a calcula- tion of a total of ninety-five towns listed. This is worth noticing because Mr. MacFarland reported the total of grants to be ninety. The latter figure is also used in his quotation of the report of the legislative com- mittee to which had been referred the 1804 report of the trustees of the University.
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