United States v. Illinois Cent Railroad Company/Dissent Brewer

by David Josiah Brewer

United States Supreme Court

154 U.S. 225

United States  v.  Illinois Cent Railroad Company

Mr. Justice BREWER, dissenting.

I am unable to concur in the views expressed by the court in this case. I agree that the United States have no governmental interest or control over the premises in question; that as a sovereign they have no right to maintain this suit; that by the act of dedication they parted with the title; and that, in accordance with the statute of the state in respect to dedication, the fee passed to the city of Chicago, to 'be held in the corporate name thereof, in trust to and for the uses and purposes set forth and expressed or intended.' I agree that the only rights which the United States have are those which any other owner of real estate would have under a like dedication; but I think the law is that he who grants property to a trustee, to be held in trust for a specific purpose, retains such an interest as gives him a right to invoke the interposition of a court of equity to prevent the use of that property for any other purpose. Can it be that if the government, believing that the congressional library has become too large for convenient use in this city, donates half of it to the city of Chicago, to be kept and maintained as a public library, that city can, after accepting the donation for the purposes named, give away the books to the various lawyers for their private libraries, and the government be powerless to restrain such disposition? Do the donors of libraries, or the grantors of real estate in trust for specific purposes, though parting with the title, lose all right to invoke the aid of a court of equity to compel the use of their donations and grants for the purposes expressed in the gift or deed? I approve the opinion of the supreme court of Iowa in the case of Warren v. Mayor of Lyons City, 22 Iowa, 351, 355, 357. In that case the plaintiffs had, years before, platted certain land as a site for a city, and on the plat filed by them there was a dedication of a piece of ground as a 'public square.' After the city had been built up on that site, the authorities, for the purposes of gain, and under the pretended authority of an act of the legislature, attempted to subdivide the public square into lots, and to lease them to individuals for private uses. A bill was filed by the dedicators to restrain such diversion of the use, and a decree in their favor was affirmed by the supreme court. I quote from the opinion:

'Nothing can be clearer than that if a grant is made for a specific, limited, and defined purpose, the subject of the grant cannot be used for another, and that the grantor retains still such an interest therein as entitles him, in a court of equity, to insist upon the execution of the trust as originally declared and accepted. Williams v. Society, 1 Ohio St. 478; Barclay v. Howell, 6 Pet. 499; Webb v. Moler, 8 Ohio, 548; Brown v. Manning, 6 Ohio, 298.'

And again, after picturing the injustice which in many cases would result by permitting such a diversion, the court adds:

'Such a doctrine would enable the state, at pleasure, to trifle with the rights of individuals; and we can scarcely conceive of a doctrine which would more effectually check every disposition to give for public or charitable purposes. No; it must be that, if the right vested in the city for a particular purpose, the legislature cannot vest it for another; that, when the dedicator declared his purpose by the plat, the land cannot be sold or used for another and different one; that, while the corporation took the premises as trustee, it took them with the obligations attached, as well as the rights conferred; that, while the legislature might give the control and management of these squares and parks to the several municipal corporations, it cannot authorize their sale and use for a purpose foreign to the object of the grant.

'Without quoting, we cite the following cases: Trustees of Watertown v. Cowen, 4 Paige, 510; Lade v. Shepherd, 2 Stra. 1004; Com. v. Alberger, 1 Whart. 469; Pomeroy v. Mills, 3 Vt. 279; Abbott v. Same, Id. 521; Adams v. Railroad Co., 11 Barb. 414; Fletcher v. Peck, 6 Cranch, 87; Godfrey v. City of Alton, 12 Ill. 29; Sedg. St. & Const. Law, 343, 344; Haight v. City of Keokuk, 4 Iowa, 199; Grant v. City of Davenport, 18 Id. 179; Le Clercq v. Trustees of Gallipolis, 7 Ohio, 217; Common Council v. Cross, 7 Ind. 9; Rowan's Ex'rs, v. Town of Portland, 8 B. Mon. 232; Trustees of Augusta v. Perkins, 3 B. Mon. 437.'

I do not care to add more, but for these reasons withhold my assent to the opinion.

I am authorized to say that Mr. Justice BROWN concurs in this dissent.