USA > Vermont > The Vermont lease lands > Part 33
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To add to the sense of verity of the stories received verbally, the pages of Hemenway contain various accounts of doings, respecting the right for the first settled minister, some of which are quite as lurid as those told to the writer.131 The Mendon incident deserves notice equally with the last tale above. Here the townspeople were determined to re- tain the right. They made a fictitious arrangement with a minister from another place to come there and go through the forms of settlement. He then deeded the land to the town and departed for his home. After that the town hired bona fide a minister, secure in the knowlege that legally, at least, he could not lay claim to the right.132
There were, undoubtedly, cases in which the right quietly served its purpose in a legitimate way. The record of the cases in the Vermont Reports, however, goes to support the proposition, advanced by the local historians, that the right was the object of greed and other adverse influences.
Passing on from the earthy problems created by some ministers and some towns, the law is found to have been confronted with issues re-
131. E. g., Bakersfield, II, 104-107; Barnet, I, 290; Bradford, II, 820-821; Fairfax, II, 170; Lyndon, I, 344-345; Mendon, III, 787; Monkton, I, 162; Ryegate, I, 379; Salisbury, I, 88-90; Thetford, II, 1093-1094.
132. This is the property which later figured in Daggett v. Mendon, 64 Vt. 323 (1892) ; and Capen's Admr. v. Sheldon, 78 Vt. 39 (1905).
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ADMINISTRATION
specting the operation of this reservation.183 Besides those already ob- served in Chapters IV and V, two principal matters have required con- siderable attention. One has been the procedure by which it should be determined that a minister was duly settled so as to become eligible to possess the land. The other has been the determination of what consti- tuted a proper religious group, and hence the "minister" thereof, in the meaning of the reservation. Both of these have been thorny questions in Vermont-undoubtedly much more so than in those New England states which were settled earlier and under different conditions. A little thought on the matter will show that this right was best designed for the earlier conditions under which settlement of a community was apt to be ac- complished by a cohesive, single, homogeneous religious group ; the time when the civil town and the religious parish were intermingled in men's minds and in social operations; and the time before Protestantism be- came so highly fragmented into incompatible and competing sects.
By the time when much of Vermont was settled, these conditions no longer prevailed. Towns would be settled by individual families, unre- lated and unacquainted with each other, and holding no common re- ligious background. Consequently, one might find more than one religi- ous group becoming organized contemporaneously. Or it might be that the first religious group to obtain a minister would represent but a minor- ity of the town. Other situations are conceivable, all equally difficult of solution, where there was a reservation for but one minister and that, the first one.
133. As to the court, see : Evarts v. Dunton, et al., Brayt. 67 (1817) ; S. C., Brayt. 70 (1820) ; Poultney v. Wells, 1 Aik. 180 (1826) ; Sheldon v. Goodsel, 1 Aik. 225 (1826) ; Dow v. Hinesburgh, 1 Aik. 35 (1825) ; S. C., 2 Aik. 18 (1826) ; Charleston v. Allen, 6 Vt. 633 (1834) ; Williams v. Goddard, 8 Vt. 492 (1836) ; Gardner, et al. v. Rogers, et al., 11 Vt. 334 (1839) ; Herrick v. Randolph, 13 Vt. 525 (1841) ; Pownal v. Myers, 16 Vt. 408 (1844) ; Congregational Society, New- port v. Walker, 18 Vt. 600 (1846) ; Brown v. Edson and Plymouth, 23 Vt. 435 (1851) ; Montpelier v. East Montpelier, 27 Vt. 704 (1854) ; S. C., 29 Vt. 12 (1856) ; Colchester v. Culver, et al., 29 Vt. 111 (1856) ; Universalist Society, Fletcher v. Leach, 35 Vt. 108 (1862) ; Perkins, Admr. v. Blood, 36 Vt. 273 (1863) ; Victory v. Wells, 39 Vt. 488 (1866) ; Sterling v. Baldwin, Exr., 42 Vt. 306 (1869) ; Williams v. North Hero, 46 Vt. 301 (1873) ; Lemington v. Stevens, 48 Vt. 38 (1875) ; Dag- gett v. Mendon, 64 Vt. 323 (1892) ; Capen's Admr. v. Sheldon, 78 Vt. 39 (1905) ; Brown v. Derway, 109 Vt. 37 (1937). There was also a case, Pierce Burton v. Ira Baxter, referred to in Dow v. Hinesburgh, op. cit., as having been tried "two or three years before," but not recorded in the Reports. Another unreported case was Williams v. Hardy and Barker, determined in 1821, and discussed at some length in Williams v. Goddard, op. cit.
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The issue of due settlement has appeared in a number of cases.134 The earlier position of the court, based on existing legislative proposi- tions, was that the procedure required specific action by both the town and the congregation. The former, in town meeting, must express it- self by majority vote as regarding the minister in question as settled. The latter must install the minister with all due form and ceremony as laid down in the canons or practices of the church in question, and there must be adequate evidence of this presented to the town. The North Hero case considered that the legislative requirements had changed so that the town in its municipal capacity was no longer concerned ; the in- habitants in their social capacity were involved, and this could mean, on occasion, but a minority of the town.135 This view was based on inter- pretation of the statute of 1797136 which the court held: ". . . made an end of any action by towns as such, and of any municipal corporate func- tion in the matter of public worship, and of the settlement and support of ministers. The whole matter was left to associations to be formed un- der that statute."137
Besides these requirements, the court gradually provided others. Sheldon v. Goodsel was important because it established the position that the settlement must be on a permanent basis.138 The opinion excluded from the benefit of the reservation ministers of churches in which the higher church authority assigns pastorates, as in the Episcopal Church, and itinerant missionaries. Dow v. Hinesburgh emphasized the require- ment that the minister must be ordained to assure that he will be one who is personally qualified to minister to the community.139 In Gardner v. Rogers the court felt that the individual must be pastor to an estab- lished recognizable religious group, not just to a casual assemblage of people.140 The North Hero case, by a broad application, extended this
134. Sheldon v. Goodsel, 1 Aik. 225 (1826) ; Dow v. Hinesburgh, 2 Aik. 18 (1826) ; Charleston v. Allen, 6 Vt. 633 (1834) ; Williams v. Goddard, 8 Vt. 492 (1836) ; Gardner v. Rogers, 11 Vt. 334 (1839) ; Williams v. North Hero, 46 Vt. 301 (1873).
135. 46 Vt. 301 (1873). In fact, in that particular situation the settlement had been accomplished by a congregation of but three persons.
136. Laws of the State of Vermont, Revised (1797), pp. 474-479.
137. 46 Vt. 301, 316 (1873).
138. 1 Aik. 225 (1826). This was stressed in all later cases which considered the point.
139. 2 Aik. 18 (1826).
140. 11 Vt. 334 (1839). This point was made specifically in relation to dis- tribution of avails of the "Gospel" right, but in such a way as to bear on the matter here being examined.
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idea to eliminate any sort of pseudo-minister. Here, one of the ministers in question (one Eaton) had had credentials as a Methodist clergyman and then surrendered them. Later, he organized an Independent Church and preached to it for several years, although he did not officially be- come a member of it. The court threw out his claim to eligibility and held that a man must be a properly recognized minister. It can be seen that this is an extreme restriction, in view of the fact that Eaton was preaching to an organized congregation.141
The problem of defining a religious congregation is applicable both to the disposition of this right and to the distribution of avails of the Gos- pel right. The court has simply accepted the provisions of legislative en- actments as definitive. In respect to the operation of such provisions we have seen that the court has been loathe to interfere with the discretion- ary function of the selectmen. It is probable that the court has regarded this matter as one best left to local neighborhood solution. With the great variety of sects which developed, it would have been nearly impossible to frame an adequate definition of a church, or even of religious ob- servance. Hence, by allowing broad lee-way, each community could arrive at a conclusion satisfactory to the majority of its members. Such a policy, it would seem, would probably tend most nearly to accomplish- ing the purpose of these two reservations.
GENERAL EVALUATION OF ADMINISTRATION
Incomplete though the evidential material is upon which the analysis of this chapter rests, the inference is available that the land reserved by the town charters has not been administered to the best advantage by the grantees of the various public rights. As Edward Conant suggested,142 it might be expected that the donor of so great a gift should take an inter- est in the handling of it. It is apparent that the principal effort of the judiciary has been toward maintaining the status quo of the rights and protecting the lands thereof from encroachments. We have seen that the legislative branch has failed to appreciate the problem or to provide any systematic control or supervision. Its activities have been lacking in
141. 46 Vt. 301 (1873). There is to be taken into account the fact that both the referee in the case and the court thought that Eaton was really interested only in gaining possession of the land, rather than in conducting a legitimate ministry. However, the doctrinal position is expressed so as to permit the court to apply the exclusion at will.
142. Supra, p. 289, n. 86.
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VERMONT LEASE LANDS
foresight, have been piecemeal, and have frequently been ill-advised in the eyes of the judges.
There remains the state administrative establishment to be examined. Some suggestion of its role, or lack of one, has been offered in earlier chapters. It can be asserted specifically that the administration has dis- played no more active or constructive concern respecting the outcome of this vast subsidy than characterizes the response of the other branches of the state government. Here and there occasional effort is displayed, as in the interest shown by Mr. Harvey when he was Commissioner of Taxes. But this can be evaluated entirely as a personalized interest, not a continuing concern of the office or agency. And such instances of in- terest have produced no tangible results. They are on a par with the infrequent concern displayed from time to time by individual legislators.
It has already been described how the writer found little or no help to be had from interviews with administrative officers at the state capitol despite their desire to be of assistance. In fact, an inverse situation has more recently existed since this study progressed beyond its initial stages. The writer has been queried by some of the very agencies from which he had originally hoped to secure information.
This condition is substantiated by an inspection of administrative reports from state agencies. A careful and extensive search was made through such publications as might perchance have occasion to refer to the lease lands in one connection or another.143 In fact, the coverage
143. Eighth Biennial Report of the State Board of Education, July 1, 1928 to June 30, 1930 (Rutland, 1930) ; Fourteenth Biennial Report of the State Board of Education, July 1, 1940 to June 30, 1942 (Brattleboro, 1942) ; Sixteenth Biennial Report of the State Board of Education, July 1, 1944 to June 30, 1946 [n. p., n. d.] ; Vermont Tax News: A Bulletin Issued by the Commissioner of Taxes (Montpelier, 1940) ; Biennial Report of the Commissioner of Taxes of the State of Vermont for the Term Ending June 30, 1938 (Rutland, [n. d.]) ; Biennial Report of the Com- missioner of Taxes of the State of Vermont for the Term Ending June 30, 1942 [n. p., n. d.] ; Biennial Report of the Commissioner of Taxes of the State of Ver- mont for the Term Ending June 30, 1944 [n. p., n. d.] ; Biennial Report of the Com- missioner of Taxes of the State of Vermont for the Term Ending June 30, 1946 (Montpelier, [n. d.]) ; Report of Finances as of June 30, 1944 [n. p., n. d.] ; Ver- mont Government, Report of the Commission on State Government and Finance Acting under the Authorization of Joint Resolutions Nos. 259 and 281 of the Legis- lature of 1945 [n. p., n. d.] ; Biennial Report of the Treasurer and Auditor of Ac- counts to the General Assembly of the State of Vermont. For the two years ending June 30, 1946 [n. p., n. d.] ; Robert M. Carter, The Development and Financing of Local Governmental Institutions in Nine Vermont Torens. Agricultural Experi- ment Station, University of Vermont and State Agricultural College, Bulletin 529 (Burlington, 1946) ; First Report of the Public Records Commission to the Gen-
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was broader than necessary in order to make certain that no chance was missed. Recognition, in such publications, of the existence of this vast institutionalized acreage of the state's land area was meagre indeed.
The extent of the administrative indifference is well illustrated by noticing some of the titles cited. The study by the Vermont State Plan- ning Board on Financial Statistics: Vermont Towns and Cities is no minor, limited affair. It runs to 267 large pages closely packed with charted data. Yet there is no mention of the lease lands as a source of revenue, as an asset, or as a problem. Neither is there in the pamphlet titled, Important Matters Before the State Legislature. Of the four re- ports cited from the Commissioner of Taxes only that for 1938 in any way touches on the lands, and this only indirectly in a short excoriating paragraph respecting tax exemptions of all sorts.
The Vermont State Planning Board's Report on Survey of Unor- ganized Towns and Gores barely qualifies: the prescribed duties of the county treasurer and the board of appraisers are recited, and in a statisti- cal table of land data covering the local jurisdictions of Essex County, there is a column of acreages of "Leased Land."144 The Report of the Commission on State Government and Finance is deeply concerned about tax exemptions and their influence on the sources of revenue of local governments.145 But it dwells on exemptions accorded business and fra- ternal organizations and says no word respecting the hundreds of thou- sands of acres of exempt lease lands.146
The report on the University of Vermont147 may be regarded in this instance as a state report as the examination of the institution's finances occurred pursuant to an act of the special legislative session of Septem-
eral Assembly of the State of Vermont ([n. p.], 1944) ; Biennial Report, 1946, of the Public Records Commission to the General Assembly of the State of Vermont [n. p., n. d.]; Important Matters Before the State Legislature: A Report of the Fourteenth Meeting of the Rural Policy Committee. Agricultural Extension Serv- ice, University of Vermont and State Agricultural College (mimeographed, Burl- ington, 1947) ; Charts of Financial Statistics: Vermont Towns and Cities Fiscal Years 1932-1941 Inclusive. Vermont State Planning Board (Montpelier, 1942) ; Report on Survey of Unorganized Towns and Gores. Vermont State Planning Board ([n. p.], 1943) ; University of Vermont and State Agricultural College, Ex- amination as at June 30, 1942 [n. p., n. d.] ; First Biennial Report of the Vermont Judicial Council ([n. p.], 1947).
144. Pp. 5, 7; insert sheet, p. 31.
145. Pp. 32-34.
146. Nor did the 1908 Commission on Taxation mention the lease lands.
147. University of Vermont and State Agricultural College, Examination as at June 30, 1942. Hereafter cited as U. V. M .: Examination.
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VERMONT LEASE LANDS
ber, 1941.148 Among other addressees is the Governor, and the letter of transmittal is signed by the State Auditor. It was intended to be com- plete and exhaustive, coming at a time of some crisis in the financial position of the University. There are several brief references to leased land accounts, but nowhere is there any breakdown as between such land which is of the public rights and other leased University holdings. Under the heading "accounts receivable, less reserves," book value of "Leased land rentals" is set at $2,669.07, reserve149 at $1,780.12, and net at $888.95.150 The second reference shows that the reserve item in- creased during the year 1941-1942 by $202.39.151 In the next reference, there is this item :
The results of requests we made by mail for confirmation of ac- counts receivable are as follows :152
No. of requests 29 5 No. of replies
17.2 % of replies
$ value of requests
$ value of replies
$1,751.61
$302.05
In the schedule on endowment funds there appears an addition to "Leased Land Fund" of $150.00,153 and in "Details of Investments," "College Leased Lands" are given a book value of $100,000.154 In the appendix titled, "Details of Income," "Leased Land" is credited at $4,151.48155 and "Leased Land Stumpage" at $300.00. In the final reference, under "Details of Expense," "University Lands" are charged for $708.38.156 Although the early section of the report consists of a lengthy and de- tailed commentary on numerous matters of University administration, no remarks are made respecting the lands.
Mr. Carter's study of use of land in nine Vermont towns is the only item which can be said to take effective account of the lease lands. In it he briefly explains something of the system and then relates the land revenue, in a generalized way, to the school tax income.157
148. Laws of Vermont, 1943 and Special Session, 1941, pp. 289-290.
149. It would appear that this classification covers those accounts receivable which were doubtful of collection.
150. U. V. M .: Examination, p. 4.
151. Ibid., p. 5.
152. Ibid.
153. Ibid., Schedule A-5.
154. Ibid., App. 3, p. 22.
155. Ibid., App. 7, p. 3. The size of this figure indicates strongly that the item "Leased Lands" includes other holdings besides the public rights.
156. Ibid., App. 8.
157. Carter, The People and Their Use of Land in Nine Vermont Towns, pp. 13-14, 42.
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To this resume of the results obtained from governmental publica- tions, it may be added that in only two offices was there found to be any data respecting the lease lands. The office of the Commissioner of Taxes had on file the returns from the towns of quadrennial appraisals.158 The office of the State Forester contained some information respecting those lease lands included in the State Forest.
158. It will be recalled that this material was evaluated in Chapter III.
Chapter VIII
CONCLUSIONS
It will have been gathered, from a variety of comments in preceding chapters, that the writer is not enthusiastic about the lease land system as a public institution. Despite the lack of complete data, enough has been developed in this research to lead to the conclusion that the system embodies serious defects. Indeed, the reasons for the inability to complete the study are in themselves an influence toward that conclusion.
The system was approached as being a technique of subsidy, and there has been the intention to discover what result accrued.
We may assume the validity of the view, held by those who issued the charters, that it would further the development of the area if there were inducements offered to aid the establishment of religious and educa- tional institutions. In an aside, the writer earlier questioned this point. However, it is not an issue of this study and may be accepted here.
With such an assumption, the original reservation of the public rights can be justified. There was land aplenty to be granted; there was not money on hand for subsidies.1
One cannot equally readily justify the erection of a system, on those grants, which is characterized by a stubborn inflexibility-an inability to adjust to changed conditions and needs. Under the Anglo-American doc- trines of the law which so zealously protect property rights, it is likely that any subsidy by land grant could exhibit a tendency toward rigidity. The extreme character of the Vermont system, however, is to be credited to the early locally accepted practices and doctrines. One cannot resist the conclusion that the custom and law in New Hampshire were more to be approved. There, it was possible to utilize the available asset of the land in the early period without that use persisting and finally be- coming a burden on the economy of the later social structure.
1. The subsidy principle is still alive in Vermont. In the town reports for 1946 there were found to be three towns which had as an item, in the warning for the town meeting, to see if the town would vote money as a stipend to induce a doctor to settle in the town.
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VERMONT LEASE LANDS
The position taken here is not unique. Those persons at all familiar with the lease lands invariably expressed the attitude that the system at present is disadvantageous.2 An individual responsible for administering one large share of lease lands said to the writer that he wished seriously that the lands could be disposed of. He wistfully advanced the proposi- tion that the state buy the lands from the various grantees and deal with the tenants. It was conceded quite generally that the system has out- lived its usefulness and is now a liability.
It may be asserted that, as the system has developed, the principal beneficiaries of the grants have come to be the tenants. The present differential between the general run of lease rent figures and tax rates for equivalent property is the basis for this conclusion. The practice in the early days, during which most of the perpetual leases were granted, was to set a rate of rent per acre slightly below the then tax rate. This was done as inducement to settlers to take leases rather than to acquire property in fee. The leases are perpetual; thus, the rental figure is con- stant and unchangeable. Taxes, on the other hand, have exhibited the same tendency in Vermont as elsewhere-a steady and almost continu- ous rise. So that by today there is a wide disparity. The various leases examined, and other data encountered, indicate that, as a general average, lease rents were set at from ten cents to seventeen cents per acre.3 Curi- ously, where there has been occasion to make renewals, or new leases, the tendency on the part of most of the trustees has been to continue the original rental rate rather than adjusting it upward in line with more recent tax levels. The disparity is demonstrated by tax figures developed by the United States Department of Agriculture. The average real estate tax per acre in Vermont was shown as follows4:
1935
1944 1946
.45
1940 .53
.57 .62
2. The report of the Commission on Forest Taxation said: "Serious con- sideration should be given to this problem by the legislature with a view to cor- recting such an anachronism." And in its summary of conclusions : "Legislation should be enacted to place Sequestered Lands on the tax books." Forest Taxation, pp. 9, 21.
3. The Commission on Forest Taxation arrived at a somewhat lower figure : "Available figures showed that 47,109 acres paid an annual rent of $4,653.91 or $.099 per acre. The highest per acre rent was $.727 and the lowest was one barley corn for 340 acres." Ibid., p. 8.
4. United States Department of Agriculture, Bureau of Agricultural Econom- ics, Farm Real Estate Taxes in 1946 (Washington, 1946), p. 4.
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CONCLUSIONS
Another generalization of the tax figure gave, for 1940, .55 per acre for all farms operated by owners, regardless of additional land owned.5 And the Statistical Abstract of the United States, 1941, gave a figure of .54 for 1939.6 These figures refer primarily to farm holdings and thus are directly comparable to the figures suggested as representing average lease rent rates.
As to forest taxation, any generalized figure would be difficult and relatively meaningless. Vermont law on this matter is complex, includ- ing classification by tree growth status, various exemptions, and so on. The summaries presented by the Commission on Forest Taxation ranged from .09 per acre to .60 per acre, with the great majority of towns rang- ing between .14 and .30 per acre.7 One point became certain from exami- nation of the assorted records of various groups of lease lands. It is that the system developed in Vermont, of perpetual leases of the public lands, never proved workable or satisfactory as an income device in the case of parcels which are essentially forest land.8
It is in this class of land where the difficulties arose with respect to commuted rents. The comment of the Commission respecting the inter- est of the towns is really applicable, too, to the interest of the trustees. It is the impression of the writer that it is the forest acreage in which the greatest losses of benefit to the trusts have occurred. These parcels have been the most inaccessible, the most difficult for the grantees to locate and to control. Mr. MacFarland's comments about cutting of timber illustrate the situation. Correspondence in the S. P. G. files, their records, and verbal statements by Mr. Joseph Wilson support the posi- tion. Another difficulty which never received satisfactory treatment was that presented by the issue of stripping versus harvesting of timber, in relation to a durable lease with a low annual rental rate. This is what induced the attempted solution by way of commuted rents.
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