Trustees of the Catholic Cathedral Church v. Manning

McSherry, J. delivered the opinion of the Court. By chapter 15, of the Acts of Assembly of 1195, a corporation named and styled the “Trustees of the Roman Catholic Church in the Town of Baltimore" was created, and it was declared “capable in law to purchase, take, hold, receive, and enjoy * * * * in fee simple, or for any lesser estates, any property, real, personal, or mixed, which, by the Constitution and laws of this State, may be acquired and held by religious societies." The corporate name was changed by the Act of 1820, ch. 84, to the “Trustees of the Catholic Cathedral Church of Baltimore." In 1814, (Acts of 1814, ch. 2,) the corporation was “authorized and em ¹¹⁹ powered to purchase a lot of ground in Baltimore County, not exceeding six acres; and to hold the same * * * as and for a burial ground for the members of said Church, and for no other use or purpose whatever.” On the ,10th day of February following Basil S. Elder, for a full and adequate consideration, conveyed to the “Trustees of the Roman Catholic Church in the Town or Baltimore, their successors and assigns,” a parcel of land containing six acres, “to have and to hold unto the said Trustees of the, Roman Catholic Church in the Town of Baltimore, their successors and assigns, to the only proper use and behoof of the said trustees, their successors and assigns forever, and for and upon none other trustor use whatever.” This land was thenceforth used as a burying ground until about March, 1881. On the fifth day of November, 1841, William L. Smith, for a consideration admitted to have been the full value of the land, conveyed to the Trustees of the Catholic Cathedral Church of Baltimore, six and a half acres of land, “to have and to hold the said ground and appurtenances unto the Trustees of the Catholic Cathedral Church of Baltimore and its assigns forever, to their only use and behoof.” This land was also used from that time until about March, 1881, as part of the Cathedral Cemetery. In 1845, (Acts of 1845, ch. 384,) the Legislature passed an Act which recited in the preamble: “Whereas, the Trustees of the Catholic Cathedral Church of Baltimore, by their petition to this General Assembly, have represented that the ground now used by the congregation of said church as a burial ground, was purchased for that purpose, and was so used before the last enlargement of the City of Baltimore, but that the commissioners appointed to lay out streets, have located several streets through the said ground, which if opened as located, would produce great inconvenience; and whereas, the trustees of the said church have also asked permission ¹²⁰ to extend their said burial ground by purchase from the owners of the adjacent lands, which request is reasonable and ought to be granted;” and then provided by sec. one, that the said trustees “he, and they are hereby, authorized and empowered to add to and enlarge their burying ground to an extent not exceeding in the whole twenty-five acres of land;” and by sec. 2, “that it shall not be lawful to open any street, lane, or alley through the burial ground of the Trustees of the Catholic Cathedral Church of Baltimore, heretofore acquired, or hereafter to be acquired, without “the sanction of the General Assembly. ” Lots in said cemetery were sold by the corporation, and certificates were given declaring that the purchasers should hold the lots unto them, their heirs and assigns forever, but to be used only for burial grounds.

In 1886, (Acts of 1886, ch. 280,) the General Assembly passed an Act entitled “An Act to authorize the Mayor and City Council of Baltimore to open streets and alleys-through the property known as the ‘ Cathedral Cemetery in Baltimore City,’ and to confer certain powers on the-trustees of said cemetery. ’ ’ By the first section of this-Act all provisions in previous statutes prohibiting the opening of streets and alleys through the Cathedral Cemetery were repealed. By subsequent sections the trustees were directed, whenever by reason of the opening of streets through the cemetery, or from any other cause, the said cemetery shall become, in the judgment of the trustees, unsuitable for the purpose of sepulture, to remove all bodies interred therein, and to reinter them in some other cemetery belonging to the said corporation, and to re-erect in such other cemetery all vaults and monuments taken from the old burying ground. By the third section the Legislature declared that when the bodies were all removed and re-interred, and the vaults, monuments, and structures all re-erected elsewhere, the corporation “shall thereupon acquire the full ownership ¹²¹ in fee simple of the part or portion aforesaid” (that is, deemed unsuitable for sepulture,) “and may by its deed duly executed, acknowledged, and recorded, sell, lease, mortgage, or otherwise convey the same so as to vest in the grantee thereunder a title free, clear, and discharged from the claims of all persons whatsoever. ” The Mayor and City Council provided by ordinance for opening streets through the cemetery, and the trustees thereupon determined that in their judgment the burial ground commonly know as the “Cathedral Cemetery” had become and was unsuitable for the purposes of sepulture. The bodies, vaults, and monuments have now all been removed.

The trustees afterwards contracted with Cleveland P. Manning, the appellee, to sell to him portions of the land conveyed by the Elder and the Smith deeds; hut, doubts having been expressed as to whether the corporation could convey a perfect title, he declined to complete the purchase, and a bill was thereupon filed against him seeking a specific performance of the contract. By agreement a pro forma decree was entered dismissing the bill, and from that decree this appeal has been taken. By Art. 84 of the Declaration of Rights of 1776, it was provided “That every gift, sale, or devise of lands to * * * * any religious sect, order, or denomination, * * * * without the leave of the Legislature, shall be void; except, always, any sale, gift, lease, or devise of any quantity of land, not exceeding two acres, for a church, meeting, or other house of worship, and for a burying ground, which shall be improved, enjoyed or used only for such purpose, or such sale, gift, lease or devise shall be void. ” This Article imposed a restriction upon the acquisition of property by religious sects, orders, and denominations, though it reserved to the Legislature the power to remove that restriction. There are no prohibitory words used in the Article with respect to this power of the Legislature, and there are no limi ¹²² tations or conditions prescribed with regard to the exercise of it.

The whole subject was left to the sound discretion and the wisdom and good judgment of the General Assembly. “Plenary power in the Legislature, for all purposes of civil government, is the rule.' A prohibition to exercise a particular power is an exception.” People vs. Draper, 15 N. Y., 543 ; Lewis’ Appeal, 67 Pa. St., 153. Or, as stated by Judge Cooley: “The rule of law upon this subject appears to be, that, except where the Constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case.” Cooley Con. Lim., 204, (4th Ed.) We do not mean to decide whether the doctrine thus broadly stated is or is not subject to some qualification, Regents, &c. vs. Williams, 9 G. & J., 408 ; Mayor, &c. vs. State, &c., 15 Md., 469 , because the question before us does not require us to pass upon that subject.

We merely state the general rule. Without pausing to consider the reasons which induced the adoption of this Article of the Declaration of Rights, it is very apparent, from its language alone, that there were two classes of sales or grants to which that Article was intended to apply. We speak of sales or grants only, because they alone are involved in this controversy. These two classes were, to state them in an inverse order, first, sales or grants to any religious sect, order or denomination where the quantity of land conveyed did not exceed two acres, and where what was conveyed was intended for a church, meeting, or other house of worship, or for a burying ground; and secondly, sales or grants where the quantity of land conveyed was not limited to two acres, but where the land was intended either for the purposes just specified, or for any other or different objects.

No “leave ” of the Legislature was necessary to make valid, grants of the des ¹²³ cription first mentioned; but tbe conditions, and tbe only conditions, upon which that validity depended were, that the quantity of land did not exceed two acres, and that . the use to be made of the property was, at least, one of those specified in the Article quoted. These conditions existing, and properly appearing, the grant was valid, without any legislative action whatever. Secondly, all other sales or grants to religious sects, orders, and denominations were declared void unless made with the “leave” of the Legislature. But necessarily every grant which without such “leave” would have been void, was, by force of the Article itself, valid and effective if made tuith such leave; and this too without the slightest reference to the uses made of the land, if the “leave” or the muniment of title prescribed no conditions in this particular.

As, therefore, the power to sanction such sales or grants was left by the Bill of Rights in the General Assembly, (where it inherently resided) without restrictions or qualifications of any kind, it follows that in giving “leave” to a religious .sect, order, or denomination to acquire property which without such leave it could not have lawfully acquired, the Legislature was undoubtedly authorized, in its discretion, to prescribe conditions and to declare limitations, both as to the extent and quality of the estate to be purchased, and as to the uses to which the property when purchased should be devoted. The right to do this was a necessary incident of the power itself. If the restrictions related to the extent and quality of the estate — confined that estate to one for life or years, or to any other less than a fee — no mere Act of Assembly could ever afterwards enlarge that qualified estate, when purchased, into an absolute one, because the rights of persons entitled to the reversion could not be thus interfered with. But if the restrictions annexed to the “leave,” whilst not affecting the quality of the estate, prescribed the pur ¹²⁴ poses for which, the property should be used, there is no principle which would prevent a subsequent Legislature, with the assent of the grantee, from changing or even abrogating altogether, those restrictions, where the title acquired under the grant was a title in fee.

This is essentially so by reason of the comprehensive nature of the power we are considering. Now, the conveyance from Basil Elder to the appellant, in 1815, was clearly not one of those sales or grants valid under the Declaration of Rights without legislative sanction. The quantity of land conveyed exceeded two acres, and the deed is silent as to the uses for which the land was intended. The Act of 1814, ch. 2, permitted the appellant to purchase six acres of land, and declared that it should hold that land for the purposes of sepulture, and for no other purpose whatever.

Here then, was a prior ''leave" granted to acquire the property; but coupled with that leave there was a declaration that when purchased the land should be held,— that is, used, — for a particular purpose. The Act therefore authorized the appellant to do two things; first, to purchase six acres of land, without imposing any restrictions as to the extent or quality of the estate to be purchased; and secondly, to hold the land, when purchased, for a particular purpose. This, for the reasons heretofore stated, it was entirely competent to the Legislature to' do, and that the Legislature intended to do it is apparent, not only from the plain import of the language used in the statute, but also from two additional circumstances; viz., first, precisely the same thing had been previously, and was subsequently, done in even more exjfiicit and emphatic terms in many other instances; and, secondly, the Legislature itself in later enactments (1821, ch. 45; 1886, ch. 280) placed its own interpretation on the Act of 1814, and defined the extent and quality of the estate originally authorized to be acquired ¹²⁵ under it. An example of the first named series of enactments is furnished by the Act of 1794, ch. 44, which empowered the vestry of Saint Paul’s parish in Baltimore County to purchase one or more parcels of ground, not exceeding three acres, whereon were to be erected, for the performance of divine worship, one or more churches, to each of which a burial ground was directed to be attached.

For those uses and purposes the vestry were authorized “to take one or more deeds to the said vestry, and their successors, forever ***** and the vestry of the said parish, and their successors, shall be vested with an estate in fee simple therein. ’ ’ This Act enabled the vestry to purchase a fee- simple estate, but restricted the irse to be made of the land when acquired. Many similar statutes might be cited. Whilst a legislative construction of a prior Act of Assembly is not always to be relied on as a safe guide, Allen vs. Mut. Fire Ins.

Co., 2 Md., 117 , still, where the Legislature says distinctly or in effect that by an antecedent statute, a particular right was intended to be conferred, the Courts will ordinarily respect that declaration, if the language used in the earlier Act can be so interpreted without doing violence to its obvious and natural meaning. Now, the Act of 1821, ch. 45, authorized the appellant to borrow $50,000 and to issue certificates, which were made liens on its real property. The Act further provided, “that if the said trustees should judge it to be for the interest of the said corporation to dispose, either at public or private sale, of the whole or any part of their property, excepting the square of ground on which the Cathedral Church stands, it shall be lawful for them to do so;” and the trustees were directed to apply the proeeeds of such sale to the reduction of the debt so authorized to be incurred. This was an explicit declaration that the estate acquired six years before, in conformity with the Act of 1814, was such as ¹²⁶ could be charged with liens in favor of creditors who might lend money on the faith of an absolute title, and such as could be sold for the payment of those liens.

Necessarily, therefore, it was a declaration that the Act of 1814 had authorized the purchase of a fee simple estate; because, if it had only authorized the acquisition of a determinable fee, the moment a sale under the Act of 1821 had been attempted, the title of the appellant Avould have been divested, and creditors Avho had relied in good faith on this legislation, would have been deprived of their liens, and woiild, most probably, have lost the money loaned by them on the security of this identical property. The Legislature would never