Opinion
1921.
Private eleemosynary corporations incorporated in this Commonwealth before March 11, 1831, the date of the passage of the first general law reserving to the General Court the right to amend, alter or repeal acts of incorporation, are within the protection of the principle of Dartmouth College v. Woodward, 4 Wheat. 518, to the effect that legislation impairing rights and privileges conferred by the charters of such corporations is invalid under the Constitution of the United States.
Gifts to trustees or to eleemosynary corporations, accepted by them to be held upon trusts expressed in writing or necessarily implied from the nature of the transaction, constitute obligations which ought to be enforced and held sacred under the Constitution.
It is not within the power of the Legislature to terminate a charitable trust, to change its administration on grounds of expediency, or to seek to control its disposition under the doctrine of cy pres.
Determination of the uses to which shall be devoted trusts no longer susceptible of execution according to their foundation is a well recognized branch of chancery jurisdiction.
The General Court may authorize the conversion into personalty of real estate which is held on trusts and which cannot otherwise be conveyed, may exercise a considerable power over charitable trusts held by municipalities, and may enact general laws respecting the regulation of charitable trusts.
In reply to an order of the Senate, requiring the opinions of the Justices of this court in answer to questions relating to the constitutionality of three bills proposing legislation uniting certain specified charitable corporations, and of three other bills proposing legislation which would authorize specified charitable corporations to convey their property to other charitable corporations, also specified, and also of a bill authorizing a certain charitable corporation to hold a specified fund free and clear of certain trusts, the order being accompanied only by copies of the bills and a recital of the dates of the incorporation of most of the corporations named, together with the statutes by or under which they were incorporated and the stated purposes of incorporation, and a statement as to the others that there was no record in the office of the Secretary of the Commonwealth of their incorporation, the order containing and being accompanied by no information as to the terms of the charitable trusts and the conditions attendant upon their present execution, the Justices, having stated the general principles of law recited in the foregoing paragraphs, asked to be excused from further consideration of the matters to which the order related until they should have been presented and argued by parties or counsel in the ordinary course of administration of justice.
THE following order was passed by the Senate on April 8, 1921, and was transmitted to the Justices of the Supreme Judicial Court on April 13, 1921.
WHEREAS, There are pending in the Senate certain bills, variously affecting the administration, control and application of certain religious, educational and charitable trusts and gifts, copies of which bills in their printed form are hereto annexed, to wit: —
An Act to authorize the Union of the South End Reading Room Association with the Peoples Methodist Episcopal Church in Newburyport, printed as Senate, No. 285;
An Act to enable the First Church in Boston to convey its Property to Trustees, printed as House, No. 1120, as amended by the House of Representatives, upon the recommendation by the Governor (see House, No. 1243);
An Act to authorize the Union of the First Congregational and South Congregational Societies of Ipswich, printed as House, No. 1121;
An Act to authorize the Worcester Tuberculosis Association to transfer its Property to the Worcester Society for District Nursing, printed as House, No. 1123, as amended by the House of Representatives, upon the recommendation by the Governor (see House, No. 1244);
An Act to authorize the Massachusetts Universalist Convention to hold the Jonathan Stetson Fund Free and Clear of Certain Trusts, printed as House, No. 1139; An Act to authorize the All Souls Unitarian Church in Roxbury to convey its Property to the First Church in Roxbury, printed as House, No. 1152;
An Act to provide for uniting the Massachusetts Women's Hospital Corporation and the Woman's Charity Club, printed as House, No. 1231; together with data relative to the several corporations aforesaid, and
WHEREAS, Doubt exists as to the constitutional power of the General Court to enact said bills into law, therefore be it
ORDERED, That the Senate require the opinions of the Honorable the Justices of the Supreme Judicial Court on the following important questions of law: —
(1) Would the enactment of any or all of said bills be a violation of the Constitution as an exercise of judicial power by the General Court?
(2) Would such enactment in any other particular violate the Constitution of the United States or of the Commonwealth?
(3) If any of said bills be unconstitutional and therefore invalid in respect to one or more trusts or gifts, is such bill unconstitutional in its entirety?
(4) Are any or all of said bills beyond the constitutional power of the General Court to enact?
(5) If one or more of said bills are in their present form beyond the power of the General Court, would the constitutional objection to them or any of them be removed by providing that the act shall take effect with respect to the proposed substitution of trustees or the proposed disposition of the trust property, or both, upon the rendition of a final decree of a court of competent jurisdiction authorizing the application or disposition of the trust funds or property, upon such terms and conditions as such court may prescribe?
The general character of the bills referred to in the order is shown by their titles. The "data relative to the several corporations aforesaid," which, as stated in the order, were annexed to it, showed merely that the office of the Secretary of the Commonwealth had no record of the incorporation of the Peoples Methodist Episcopal Church in Newburyport, of the First Congregational Society of Ipswich, or of the South Congregational Society of Ipswich; that The South End Reading Room Association was located in Newburyport and was incorporated on March 3, 1904, under R. L. c. 125 for the purpose of "providing and maintaining a free public library and reading-room for the residents of Ward One, Newburyport;" that the First Church in Boston was incorporated by St. 1828, c. 122, approved on March 3, 1829, the act of incorporation empowering the corporation to hold real and personal estate "for the support of the ministry, and the suitable maintenance of the public worship of God;" that the Worcester Tuberculosis Relief Association was incorporated on November 14, 1907, under R. L. c. 125, for the purpose of "controlling and eradicating tuberculosis by caring for and assisting the afflicted poor, by distributing information concerning the disease, by encouraging the adoption of proper restrictive regulations pertaining to public buildings, workshops, homes and streets and by establishing and maintaining institutions for those who cannot be properly cared for at home;" that the Worcester Society for District Nursing was incorporated on December 6, 1899, under Pub. Sts. c. 115, "for the care of the sick poor and for instruction in home nursing;" that the Massachusetts Universalist Convention was incorporated by St. 1859, c. 66, which was approved on February 26, 1859, that the act of incorporation did not state a location of the corporation, and that by its provisions the corporation was empowered to hold real and personal estate "to be devoted exclusively to the diffusion of knowledge of Christianity by the means of publications, missionary labors or otherwise;" that the All Souls Unitarian Church was incorporated on July 25, 1889, under Pub. Sts. c. 115, for "the formation of an Association for religious purposes including the purchasing a house of worship and land and purchasing or erecting such other buildings in connection therewith as may be deemed advisable, of maintaining public worship and doing all other acts to promote religious and benevolent work;" that the First Church in Roxbury was incorporated by St. 1824, c. 133, which was approved on February 26, 1825, under the name, First Religious Society in Roxbury, that by Spec. St. 1915, c. 49, approved on February 15, 1915, its name was changed to First Church in Roxbury; that the act of incorporation gives the corporation "all the powers, privileges and immunities usually granted to such societies;" that The Massachusetts Women's Hospital was incorporated on July 27, 1903, under R. L. c. 125, under the name, The Woman's Charity Club Hospital Corporation, the name being changed to the present form on November 20, 1912, under the provisions of St. 1908, c. 163, and that the purpose of the corporation as stated in its charter is, "maintaining a hospital for free surgical operations to suffering women who are unable to pay therefor;" and that The Woman's Charity Club was incorporated on May 23, 1889, under Pub. Sts. c. 115, "to assist in any charitable work which the Association may deem advisable."
On April 26, 1921, the Justices returned the following answers to the questions propounded in the order:
To the Honorable the Senate of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court, having considered the questions of the order of April 8, 1921, copy whereof is hereto annexed, respectfully return these answers:
All the questions relate to religious societies and other charitable corporations. Of the several corporations mentioned in the bills accompanying the order, two, The First Church in Boston (House Nos. 1120 and 1243, St. 1828, c. 122) and The First Church in Roxbury (House No. 1152, St. 1824, c. 133), and perhaps others, were incorporated before March 11, 1831, the date of the passage of the first general law reserving to the General Court the right to amend, alter or repeal acts of incorporation. These, therefore, are within the protection of the principle of Dartmouth College v. Woodward, 4 Wheat. 518, to the effect that legislation impairing rights and privileges conferred by the charter of private eleemosynary corporations is invalid under the Constitution of the United States. One bill, House No. 1152, allows persons to vote on the question of accepting the act who cannot now vote on other questions affecting the corporation. One bill House No. 1139 undertakes to abolish a trust as established by its founder. Several of the bills seemingly purport to authorize changes in the terms upon which property devoted to charitable uses is to be held and enjoyed. See House Nos. 1120, 1243, 1139, 1231. All or substantially all of the bills appear to relate to the administration of existing valid and enforceable charitable trusts, the purposes of which have not been fulfilled and in which numerous persons not assenting to their termination or modification may be directly interested.
We are not advised concerning the terms of these trusts and we do not know the conditions attendant upon their present execution.
Gifts to trustees or to eleemosynary corporations, accepted by them to be held upon trusts expressed in writing or necessarily implied from the nature of the transaction, constitute obligations which ought to be enforced and held sacred under the Constitution. It is not within the power of the Legislature to terminate a charitable trust, to change its administration on grounds of expediency, or to seek to control its disposition under the doctrine of cy pres. Cary Library v. Bliss, 151 Mass. 364. Crawford v. Nies, 224 Mass. 474, 488. Determination of the uses to which shall be devoted trusts no longer susceptible of execution according to their foundation is a well recognized branch of chancery jurisdiction. It is a subject respecting which there is constant resort to the judicial courts for decision. The General Court may authorize the conversion into personality of real estate held on trusts, which cannot otherwise be conveyed, exercise a considerable power over charitable trusts held by municipalities, and enact general laws respecting the regulation of charitable trusts. Jackson v. Phillips, 14 Allen, 539, 574, 576, 580, 591, 592. Sohier v. Trinity Church, 109 Mass. 1, 17. Forster v. Forster, 129 Mass. 559, 564. Ware v. Fitchburg, 200 Mass. 61, 72.
This brief statement of general principles is all that we feel justified in making on the meagre information which we possess concerning the original nature and the present circumstances of the several trusts to be affected by the bills. No final opinion can be expressed without fuller knowledge of facts. Moreover charitable trusts are frequently brought to the consideration of the courts. It seems manifest that persons having private interests and possibly those representing the public might resort to the judicial department of government for adjudication regarding their rights if any of these bills should be enacted into statutes. It was said in Opinion of the Justices, 122 Mass. 600, at page 602: "In view of the separation, established by the Constitution, between the legislative, the executive and the judicial departments of the government, we can hardly suppose it to have been the intention that either the legislative or the executive should demand of the judiciary its opinion, in advance, upon a question which may arise in the course of judicial administration, and which cannot be affected by legislative or executive action." These words are applicable to the questions presented by the present order.
Therefore the Justices of the Supreme Judicial Court, respectfully ask to be excused from further consideration of these matters until they shall have been presented and argued by counsel in the ordinary course of administration of justice.
ARTHUR P. RUGG. HENRY K. BRALEY. CHARLES A. De COURCY. JOHN C. CROSBY. EDWARD P. PIERCE. JAMES B. CARROLL. CHARLES F. JENNEY.