Alemany v. Wensinger
Before: Being, Expressed, Spbague, Temple, Wallace
Synopsis
Appeal from tbe District Court- of tbe Eourth District, City and County of San Erancisco.
Action brought by Josepb S. Alemany, Boman Catholic Archbishop of San Erancisco, against the defendants, members of the congregation of Boman Catholic Germans of the City of San Erancisco, to obtain a decree for the sale of certain lots, and the buildings thereon, including the Church of Saint Boniface, held in trust by him for the use of said congregation, and to apply the proceeds after paying off the indebtedness of said congregation to the purchase of another and more suitable lot and the erection thereon of a suitable church edifice and other necessary buildings; and that the lot of ground so purchased shall be conveyed to plaintiff, and shall, together with any buildings erected thereon, be held by him upon the trusts respecting the same, in all .respects as the premises sought to be sold have been heretofore held and enjoyed.
Judgment was for plaintiff in accordance with the prayer of the complaint, authorizing and directing him to sell the premises therein described for the best price that in his judgment could be obtained therefor, but for not less that sixty-five thousand dollars in gold coin; and that the costs and disbursements of the plaintiff and'counsel fees, not exceeding five hundred dollars, be allowed to the plaintiff out of the trust funds, and that the plaintiff pay the Court costs and disbursements of the defendants.
Defendants moved for a new trial which was denied, and this appeal is taken both from the judgment and the order denying a new trial.
The other facts are stated in the opinion.
First — The law of America, is essentially different from that of England. We have no parens patrie, and consequently no keeper of his conscience.
We have a government of laws, organic and statutory, and the organic law of the nation preserves from violation the obligation of contracts.
¡Section Ten of Article I of the Constitution declares that “no State * * * shall pass * * * any law impairing the obligation of contracts.”
Should the judiciary of a State by a decision determine that a contract might be violated, there is no question but that an appeal would lie to the Supreme Court of the United States, and that the decision would be overruled on the ground that the sanctity of contracts provided for by the clause quoted should be as fully sustained against judicial as legislative usurpation.
Section One of Article I of our State Constitution embodies the same idea, but in different words, by declaring that “ all men * * * have certain inalienable rights, among which are those of * * * acquiring, possessing, and protecting property.”
Opinion — Wallace
Wallace, ■!., delivered the opinion of the Court, Cbock-ett, J., and Rhodes, C. J., concurring:
The principal purpose intended by the donors was to provide “a Roman Catholic Church for the German Congregation of the City of San Francisco.” As a means to this end the lot on Sutter street, near Montgomery, was [293]selected, and at the time of the selection it was suitable or at least not inappropriate for that purpose. Subsequent events, not then anticipated, and therefore not expressly provided for by the donors, have already practically defeated the scheme of the original donation. Hotels and business houses and places of public resort have grown up in close proximity to the property. A variety of circumstances, the results of the unforeseen growth of a populous city beyond and around the premises have, as found by the Court below, rendered this lot “unsuitable as a site for an edifice for religious worship.” These circumstances have, at the same time, greatly enhanced its value in the market, and it appears that a sum can be obtained for it which will be sufficient, after paying'off the indebtedness of the church, to purchase a suitable lot in the city and erect thereon an edifice proper for the accomplishment of the original design of the donation. The Court below directed, under these circumstances, a sale of the premises and a reinvestment of the proceeds of the sale in furtherance of the objects of the trust. "We see no error in the general scope of the decree. It cannot be said to have displaced or interfered with the original trust for that, so far as the particular premises are concerned, had already been practically defeated by the circumstances before adverted to. The decree in its effect re-establishes the trust as far as possible, and provides the only means by which the intent of the donors may be executed and carried into substantial effect. Under the circumstances, however, and in view of the fact that a large sum of money will come into the possession of the respondent, which it will become his duty to expend pursuant to the directions of the decree, we think that the Court below should have directed that he give a sufficient bond to secure the fund against possible loss.
It is therefore ordered that the cause be remanded to the Court below, with instructions to modify the decree by requiring of the respondent, a bond with two sufficient sureties, to be approved by the Court below, in the sum of $140,-000, conditioned for the faithful application of the proceeds
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