Rock Hill College v. Jones

Alvey, J., delivered the opinion of the Court. The Rock Hill College, the appellant in this case, was incorporated by the Act of 1865, ch. 10, and, by the admission of the demurrer to the bill of complaint, is the only college located in Howard County. James Stratton died in that county in July, 1875, intestate, possessed of a considerable personal estate, and without leaving a widow or children, or descendants of children, or other relations within the fifth degree, reckoned by counting down from the common ancestor. There has been an administration upon the estate of the intestate, and there remains a con ¹⁴ siderable surplus of such estate, after the payment of debts, funeral charges, and expenses of administration.

This surplus is claimed by the appellant, and the object of the present bill is the assertion of that claim as against the claim to the fund set up by the Board of County School Commissioners of Howard County, under the general Act of 1876, ch. 295, and the special Act of the same session, chapter 377. The foundation of the appellant’s claim is the 136th section of Art. 93, of the Code, as that section stood before its repeal and re-enactment by the Act or 1876, ch. 295, to which we have just referred. That section, as it stood before the repeal, provided that “If there be no widow or relations of the intestate within the fifth degree, which shall be reckoned by counting down from the common ancestor to the more remote, the whole surplus shall belong' to the State, and shall be paid to the college, if any, in the county where the deceased shall die, or if none, to any school in the county to which the public aid by law may be extended, and if none, to the county where the property of the intestate shall lie.” This section was codified from the provisions of the Acts of 1798, ch. 101, suh ch. 11, sec. 15, and 1802, ch. 101,. sec. 11. In the first of these Acts it was provided, that “the whole surplus shall belong to the State, to be applied as the Legislature shall hereafter direct, saving to the different schools in this State the rights which, by existing laws, they now respectively possess.” While this statute fully recognized the rights that had been acquired by the schools, it was soon after modified by another, that of 1802, ch. 101, sec. 11, whereby, instead of allowing the fund to remain undisposed of as under the Act of 1798, where there was no schools in the county, it was provided, that in all instances where by law the property of deceased persons would have descended or devolved on the free school of any county, if such free school had existed, the same should be and ¹⁵ was thereby declared to be, the property of tbe college, if any, in such county, or if none, the property of any school to which the public aid by law had been or might be extended, and if none, to go to tbe county where tbe property of such person or persons so dying might lie ; and that the trustees of the college or school, or the justice of the levy Court, respectively, as the case might be, should bave tbe same right, powers and authority, to sue for and recover snob property, as the visitors, trustees or governors, of any such free school might or could have done.

The Act of 1876, ch. 295, as we have already said, repealed the 136th section of Art. 93 of the Code, and re-enacted the same in the terms of the section as it originally stood in the Code, except that, instead of the direction that the surplus should belong to the State, and should he paid to the college, if any, in the county, or if none, to any school, etc., the re-enacted section provides that “ the whole surplus shall belong to the State, and shall be paid to the Board of County School Commissioners of the county wherein letters of administration shall be granted upon the estate of the deceased, for the use of the public schools of said county.” There is nothing in the section thus enacted that looks to its operation upon past cases; and it would appear that the Legislature supposed the change in the law by the repeal and re-enactment of this section of the Code would not retroact and control this case; for among the laws of the same session we find the special Act, chapter 377, wherein, after reciting the facts of the case, it is enacted that the administrators of the deceased, after the passage of their final account, “shall pay over the whole surplus of said estate to the Board of County School Commissioners of Howard County;” provided, no relation of the intestate, within the fifth degree, shall appear and claim, &c. Relying upon these Acts of 1876, the appellees demurred to the bill of complaint filed by the appellant; and the ¹⁶ question is, was the right of the latter to receive the fund, under the Code, Art. 93, sec. 136, of a nature and character to be subject to the control of the Legislature, and the fund liable to be diverted from the objects and purposes declared in the law which was in force at the death of the intestate? This question was resolved in the affirmative by the Court below, and we are now required to review that decision. The appellant contends that the 136th sect, of Art. 93 of the Code was part of the law of distribution, and that, by force of that law, the right and title to the fund vested in the appellant, through the State as mere trustee, eo instanti the death of the intestate; and the right being vested, it could not be divested and the fund appropriated to other objects and uses, by subsequent legislation.

While, on the other hand, it is contended by the appellees, that the operation of the 136th section referred to was simply an appropriation of revenue, derived by the State from the estates of persons dying intestate, and without relations within a certain degree, and that it was competent to the Legislature to revoke such appropriation at any time before the fund was actually paid over by the administrators. 1 Without reference to any question as to whether the general Act of 18⁷⁶, ch. 295, could be fairly so construed as to have a retroactive effect, or whether it was competent to the Legislature to pass the special Act of 1876, ch. 377, under the 33rd section of the 3rd Article of the Constitution, which provides that the G-eneral Assembly shall pass no special law, for any case, for which provision has been made by an existing general law, the right -here involved, according to the contention of the-parties, depends upon the question, whether the State held an absolute, disposable right in the fund, at and from the time of the death of the intestate, irrespective of the imperative provision that such fund should be paid over to the college ? ¹⁷ That the State has any original prerogative right to appropriate the fund to its own use, in the absence of statutory rules of distribution, is a proposition that cannot be maintained. In England, even in the ancient period of her jurisprudence, when power was arbitrary and the rights of the subject but ill-defined, such prerogative was not claimed. It is true, that, in early times, “when a man died intestate, and had made no disposition of his goods, nor committed his trust to any, in such case the King, who was parens patriae, and had the supreme care to provide for all his subjects, that every one should enjoy that which he ought to have, used by his ministers to seize the goods of the intestate, to the intent they should be preserved and disposed for the burial of the deceased, for payment of his debts, to advance his wife and children, if he had any, and if not, those of his blood.” Hensloe’s Case, 9 Co., 38 b. Therefore, the holding by the King was a mere trust.

Afterwards this care and trust was committed to ordinaries, until finally, to correct the abuses of their administration, the subject was regulated by statute. 1 Wms. on Ex’rs, 330. But here with us, the power of the State over the subject-matter has been and is the law-making power, and that alone, whereby general rules and regulations are prescribed for the government of the people and the disposition of their property. These general rules prescribed by the Legislature, all persons are supposed to be aware of, and to act in reference to them. Rights that pass and become vested under the existing law of the land are supposed to be beyond the control of the State through its Legislature.

The mere change of the law does not divest or impair the rights of property acquired before the change, even though the Legislature may intend the new law so to operate. “A law,” says Puffendorff, ‘ can be repealed by the law-giver ; but the rights which have been acquired under it while it was in force, do not thereby cease. It would be an act of absolute injustice, ¹⁸ to abolish with alaw all the effects which it had produced.” L. Nat. and n., Bk. 1, ch. 6, secs. 6 and 7. This is a principle of general jurisprudence ; but a right to be within its protection must be a vested right. It must be something more than a mere expectation based upon an anticipated continuance of the existing law. “'It must have become a title, legal or equitable/to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made