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To the Com-
mittee on
Education.
1902
May 3.

-

FEOFFEES OF GRAMMAR SCHOOL IN IPSWICH CONSTITUTIONAL
LAW VESTED RIGHTS - OBLIGATION OF CONTRACT.

Under St. 1786, c. 54, making perpetual the agreement set forth in Acts of 1765,
c. 5, between the feoffees representing the original donors of land for a
grammar school in Ipswich and the town of Ipswich to the effect that four
feoffees on behalf of private individuals, and the three selectmen of the town
of Ipswich for the time being, on behalf of the town, should be incorporated
feoffees in trust for the management of such school, the rights of each group
of trustees became vested, as well as the rights of the beneficiaries under the
trust; and a bill to increase to six the number of feoffees on the part of the
town would be unconstitutional, as impairing the obligation of the contract,
and destroying vested rights without due process of law.

In answering the inquiry of the committee on education whether House Bill No. 931, an act to increase the number of feoffees of the grammar school in Ipswich, would be constitutional, it seems proper to state briefly the facts of which I am informed.

In 1650 the town of Ipswich granted to Robert Payne and others a tract of land for the use of school learning in the town forever. Certain citizens also dedicated land to the same purpose, and in 1653 Robert Payne built an edifice for a grammar school at his own expense. In 1683, Robert Payne, being the last survivor of the individual donors, gave a deed of the whole property to a committee and their successors in trust forever. Three of the committee were chosen by the town and two by himself. See Feoffees of the Grammar School in Ipswich v. Andrews, 8 Met. 584, 587.

These trustees and their successors continued to act in the performance of their trust without interruption until 1720, when a difficulty arose with the town of Ipswich, which then for the first time laid claim to the land which it had deeded to Robert Payne as having reverted after the death of the original feoffees; but the town lost the suit which it brought to recover the premises. In 1756 the town passed the following vote:

Ipswich town-records, vol. 4, p. 153. Att a Meeting Of the Inhabitants of the Town of Ipswich by Adjournt January 22d 1756. Collo John Choate Esq. Moderator of the Meeting

The Comtee Appointed on the Twelfth Inst to Confer with the Feoffees of the Grammar School in Ipswich Respecting the Management of the School Rents Reported that they had Agreed thereon and then the Town Came into the Following Vote. Vizt

Whereas the Town in Granting the School Farm att Chebbacco did not give those Persons to whose Trust they Committed the Improvement of Said Farm a power to Appoint Successors as the Private Persons who granted Lands in this Town for the Same use Did as Appears by Examining the Respective Grant by which Means those Grants being Differently Constituted and the Persons Instructed by the Town as Aforesaid being Long Since Dead Endless Disputes may Arise between the Town & Feoffees About the School (to the Support of which the whole Income if needed is to be Applyed) Unless Relief be had from the Generall Court and inasmuch as the Present Feoffees have Manifested there Agreement Thereto

"Voted That a Joynt Application be made to the Great and Generall Court to Obtain and Act if they See meet Fully to Authorize and Impower the Present Four Feoffees and Such Successors as they shall from time to time Appoint in their Stead together with the Three Edest Selectmen of this Town for the time being other than Such Selectman or men as may att any time be of the Four Feoffees To be A Committee in Trust the Major Part of whom to Order the Affairs of the School Land & School Appoint the Schoolmaster from time Demand Receive and Apply the Incomes Agreeable to the True Intent of the Donors No Feoffee hereafter to be Appointed by the Present Feoffees or by their Successors Other than an Inhabitant of this Town and not to Act after he Removes his Dwelling out of it and to have no more than Four att one time and Least any Unforeseen Inconvenience may happen in this Method it is agreed that the Act be only made for Ten Years att First.

Attest

SAMUEL ROGERS T. Cler

As a result of the agreement expressed in this vote, the act of 1756, c. 26, was passed, incorporating the seven feoffees, being four on the part of the original donors and three representing the town. This act was an experiment, to be in force only for ten years.

By the act of 1765, c. 5, the Legislature, reciting that it had been found by experience that the previous act had been of great advantage to the interest of learning in the town, and that all doubts and disputes had ceased and the parties concerned

desired the continuance of the act, provided that the four surviving feoffees on the part of the individual donors, together with the three selectmen at that time, should be incorporated feoffees in trust, and that the act should continue in force twenty-one years. Then, by St. 1786, c. 54, the Legislature provided that the act of 1765 be made perpetual.

Again disputes have arisen between the feoffees on the part of individuals and the town of Ipswich. The town has voted to increase its power in the corporation by adding three feoffees, that it may out-vote the representatives of the individual donors six to four, and applies to the Legislature for an act authorizing the change.

In my opinion, the Legislature has no authority to pass the act in question. As a result of the agreement expressed in the vote of the town above recited, the original administration of the trust was materially changed. The balance of power was shifted from the town to the private feoffees, and this contract was made permanent by the statute incorporating the seven feoffees. Under this act the rights of each group of trustees became vested, as also the rights of the beneficiaries under the trust; and any gifts to the charity made thereafter were upon faith that the trust should be administered by trustees in behalf of each group of donors in those proportions. If the bill in question should be passed, it would be void, as impairing the obligation of the contract and destroying vested rights without due process of law. See Trustees of Dartmouth College v. Woodward, 4 Wheat. 518; Allen v. McKeen, 1 Sumn. 277; Brown v. Hummel, 6 Pa. St. 86; Cary Library v. Bliss, 151 Mass. 364.

The principle is the same as if the Legislature were to deprive the town of its power in the management, or were to supplant the feoffees by a new committee.

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Under the provisions of R. L., c. 75, § 113, authorizing the State Board of Health to make rules and regulations to secure the sanitary protection of waters used as sources of water supply, it is the duty of such Board to cause the publication of such rules and regulations, and to meet all expenses incidental to such publication.

1902

Replying to the inquiry of your Board under date of April 17, To the State I have to say that, in my opinion, the duty of publishing notice Health. of rules established by your Board for the sanitary protection of May 13. the waters for the water supply of Taunton is imposed upon your Board; it appearing that in the latter part of the year 1901 the water commissioners of the city of Taunton petitioned the State Board of Health for the establishment of rules and regulations to prevent pollution and secure sanitary protection for the waters of the Lakeville ponds, they being the water supply of said city. After examination, a set of rules and regulations were prepared by the State Board; and the question has now arisen whether the duty of publishing notice of such rules devolves upon the State Board of Health or upon the city of Taunton.

The authority of the State Board in the premises is conferred by c. 75, § 113, of the Revised Laws, which is a substantial reenactment of c. 510 of the Acts of 1897. Those provisions are that the State Board may cause examination of such waters (including streams and ponds used for water supply), to ascertain their purity and fitness for domestic use. The Board may further make rules and regulations to prevent the pollution and secure the sanitary protection of all such waters as are used as sources of supply. Presumably the water commissioners of Taunton petitioned the State Board under the provisions of this law.

Section 114 of the Revised Laws, c. 75, provides that the publication of an order, rule or regulation made by the Board under the provisions of § 113 is to be made in a newspaper published

in the city or town in which such order is to take effect; or, if there be no newspaper so published, a copy of the order is to be posted in some public place in such city or town; and that such publication shall be legal notice to all persons. An affidavit thereof is to be made by the person causing such publication, and is to be filed and recorded in the office of the clerk of the city or town, and such affidavit is to be admitted as evidence of the time, place and manner in which the notice is given.

Section 116 of c. 75 provides that said Board may appoint, employ and fix the compensation of such agents, clerks, servants and assistants as is considered necessary; and further provides that such agents and servants shall cause the provisions of law relative to the pollution of water supplies and of the rules and regulations of the Board to be enforced.

Section 117 of the same chapter provides, among other things, that no person shall be required to bear the expense of consultations with or advice or experiments of the State Board in this connection.

The making and promulgation of rules and regulations for the protection of a water supply is a part of the duty of the State Board, and may be invoked by municipalities for their protection. Section 113, before referred to, provides that the Board may make rules and regulations to prevent the pollution and to secure the sanitary protection of such waters. The making and promulgation of these rules is plainly an incident to secure such protection, and is a necessary preliminary to their enforcement.

For these reasons I have reached the opinion which I have above stated, to the effect that the State Board should, under the circumstances, secure the publication of the rules and regulations made by them in the premises; and that this duty does not devolve upon the municipality, nor should any expense incident thereto be charged to the city.

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