Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1885-01-18
SAM. JONES'S LEGACY.
THE PRINCE wILLIAK CASE.
The DsssentIng Opinion Of Judge l. L. Lewis
In the stuart Palmer Csse-His View or

Il
the Law. r-f'Fy'~- -.i--tF
As stated yesterday, when synopsis
| Of the opinion Of the majority of the
Court Of Appeals was published, some
time prior to the year 1870 Samuel
Jones died, leaving a will by which he
beaueathed to the vestry Of Prince Will
liam county the sum OF e600, to be put
at interest on real estate security, and
the income to be applied to the educa-
ton of poor children in the said county.
In 1885 the powers and duties OF the
yestry were conferred upon the over
seers of the poor in the several counties.
On the Goth of November, 1870, the
overseers of the poor Of Prince William
lent the fund in question to Cuthbert
Bullitt, and, pursuant to the testator's
directions, took as security mort
gage on certain real estate in
the county of Fauquier. In 1919,
by an act Of Assembly, the over
seers Of the poor were succeeded in the
management of the fund by the School
Commissioners of Prince William. The
interest was regularly paid till Novem-
Der, 1860. BY an act passed Septem-
Der 20, 1868, authority was given the
owners of the mortgaged land to pay
the debt to the Second Auditor. Ac-
cordingly, payment in Confederate cur
rency was made to that officer, and the
lien of the mortgage was thereupon re-
leased. This suit was brought by the
School Board Of Prince William as the
successor of the School Commissioners,
and decree was rendered in'the plain
tiff's favor the Circuit Court of Fau-
ouier holding the act Of 1863 and the
proceedings under it to be roid. From
this decree an appeal was taken, which
was Thursday decided by the Court of
Appeals.
SYNOPSIS OF JUDGE LEwIs's DIS
sENTING OPINION.
| think the decree Of the Circuit Court
is plainly right, and ought to be affirm
ed. therefore dissent from the opinion
which has just been read. To my mind
the propositions it announces are no less
novel than startling, ignoring as it does
the constitutional safeguards of the
property rights of the citizen, and that,
too, on the ground that those whose
rights are alleged to have been invaded
are incompetent to act for themselves.
] had supposed that the disabled were
especially entitled to the protection Of
the laws. But the opinion of the ma
jority seems to assume that to a
case like this the fundamental guar
antees do not extend that the
beneficiaries here are the wards
of the State, and that therefore their
rights of property are left to the arbi
trary discretion of the Legislature. The
opinion seems to be mainly founded on
the idea that the fund in question was
public fund. But nothing, in my
Judgment, can be more erroneous. The
fact that the object of the bequest was
the education of a certain class in
particular community did not make the
charity in its character any the less
private. This is elementary law, and
need not be dwelt upon. A con-
trary principle, says Chief-Justice
Marshall, has never been asserted or
recognizeG-Dartmouth College rs.
Woodward. / Wheaton's Reports. SIS.
Here the estate devised was the tesla Z
tors own property, not dedicated th
the public. but to be secured and its in
come appropriated in the manner and
for the purpose directed by the will.
The bequest was therefore plainly within
the protection of the law securing the
rights of private property, and the act
in question, impairing the rights of the
parties, as plainly unconstitutional and
void
Ii is true that the Legislature. sub
ject to the restrictions contained i'll Ar
ticle v. section 20. of the Consttu-
ton, may by special enactment adopt
measures for the management of the
estates of infants, lunaticS, and other
disabled persons, in cases where judi
cial inquiry is not essential, and the in
terests of such persons require it. This
is done in the exercise of a tutorial
power, as parenS pdtriP, which under
our system of government devolveS
upon the Legislature.-Gallego'S ex-
ecutors rs. The Attorncy-Gencral. 3
Leigh, $50. But the power can never
be exercised, consistently with the Con-
stitution, to the prejudice Of Ae sub
stGHtidl rights Of the parties. This is
well established. 1t was so said in
the leading case of Rice rs. Park
man, l6 Mass, decided in 1920; and to
the same effect are all the authorities.
Here, by the contract of the parties. the
debt Ill question was payable in gold or
its equivalent, and, as directed BY the
will, was amply secured by a mortgage
on real estate. BY the act of 1863 au-
thOrity was given to pay the debt in
Confederate currency to the Second Au-
ditOr. as a substituted trustee. and the |
when paid, not necessarily to
be secured on real estate. but to be in |
vested at such time and in such manner |
as the substituted trustee might see tit. |
In point of fact. he did not invest |
it at all, and the fund was lost
by the result Of the war. If this |
did not impair the rights of the parties,
it is impossible to conceive how rights |
can be impaired. But, further, the act |
was clearly void as opposed to the Con-
of the United States. which |
Iorbids the States to pass any law I'M
pairing the obligation of contracts or to
make anything but gold or silver coin a
legal tender in payment of debts. The /
rase of the Bank of the Old Dominion
rs. McVeigh, 20 Graft, 457, is an au-
thority in point. Thus an act of the
Legislature passed during the war was
held TO be void on these very grounds.
The argument that the fund became
subject to the absolute control of the
Legislature because the bequest, which
vas originally void for uncertainty, ac-
luired vitality only by the action Of
hat body, is unsupported by principle
)r authority. The answer is that the
Legislature having seen fit to interpose
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