has received the full consideration stipulated for, and to this extent paid nothing.

The cases on this subject are conflicting. See Dillon on Municipal Corporations (4th ed.), secs. 480-482 and notes. They show that there is no disposition of the question which is wholly free from difficulty. We have preferred to follow the line which we think not inferior in just legal reasoning, while clearly superior in the honesty and justice of the result reached.

Compromise also stipulated that no defense

valid

There is another view of this particular case which leads to the same conclusion. As already said the building of the sewer occupied several years. During the progress of the work differences arose in regard to payments, and in 1895 a compromise was agreed upon between the contractor and a committee of the city council, subsequently rati fied by ordinance, whereby the outstanding orders in favor of the contractor were canceled, and new orders issued against which the city stipulated that no defense should be made by it. Among such new orders are those now sued on. The validity of the assessments on nonabutting property was then undecided. The contractor agreed to furnish additional counsel and aid in the prosecution of a test case on this subject, and to abate the sum of $550 from his claim, should such suit be decided against the city. This compromise was carried out by the parties except as to the payment of the orders involved in this suit. No reason is shown why it was not entirely valid and binding. The case stated does not show that the stipulated payments on these orders could not at that time have been made from money in the treasury, or from current revenue, even if that fact had been a necessary element in the validity of the compromise.

Judgment reversed and judgment directed to be entered for the plaintiff for $6,000 with interest.1

16 Cases

SECTION VII.-Power to acquire, manage, and dispose of property.

GEORGE W. CLAYTON by his last will and testament gave to the Corporation of Denver all the residue of his estate in trust to establish and maintain a college for the education of poor white male orphan children.

1 See also Lake County v. Rollins, 130 U. S. 662; Farquharson v. Yeargin, 24 Wash. 549, 64 Pac. 717; La Porte v. Gamewell F. A. T. Co., 146 Ind. 466, 45 N. E. 588, 35 L. R. A. 686, 58 Am. St. Rep. 359; Voss v. Waterloo Water Co., 163 Ind. 69, 71 N. E. 208, 106 Am. St. Rep. 201; Reynolds v. Waterville, 92 Me. 292, 42 Atl. 558; Mc Gillivray v. Joint School Dist., 112 Wis. 354, 88 N. W. 310; Conner v. Nevada, 188 Mo. 148, 86 S. W. 256, 107 Am. St. Rep. 314.

The next of kin filed this complaint to have the residuary clause declared null and void.1

STEELE, J. . . . It may be stated as a general proposition of law, that a corporation capable of holding real estate is capable also of executing a charitable trust, unless the statute or the articles of incorporation prohibit it. And unless specially restrained, municipal corporations may take and hold property in their own right by direct gift, conveyance or devise, in trust, for purposes germane to the ob jects of the corporation, or which will promote, aid, or assist in carrying out or perfecting those objects. Se, in this case, unless the objects. of the incorporation of the city of Denver are foreign to the purposes expressed in this trust, the city of Denver is capable of taking the property and executing the trust in accordance with the provisions of the will.

It is said that by the constitution and laws of Colorado the municio power

palities of the state are inferentially prohibited from maintaining schools; that that function of government is left to the school districts of the state; and that this provision of the will of George W. Clayton should not be enforced because of the policy of the state so expressed. As far as the policy of the state is concerned, the act of 1901 enabling the city of Denver to take gifts by devise declares it to be in favor of the city's accepting such devise.

Gilbert Hatheway died in 1871, and by will gave to the corporation of the village of New Baltimore fifteen thousand dollars to be used in the erection of a school building to be used as a high school and to be suitable for that purpose, and to be known as the Hatheway School. The legislature of Michigan, in the year 1873, passed an act enabling the village to accept the gift. In the case of Hatheway v. Sackett, 32 Mich. 99, a case in which this legacy was under consideration, the court said: "They (the plaintiffs in error) insist that our general state policy is opposed to all connection between village government and school administration, and then seek to infer that this general policy is applicable to this specific case. But the act of 1873 negatives this inference; because, whatever its force as an enabling act, it is, at least, a direct and explicit expression of the sense of the legislature that in truth it is not impolitic for the village of New Baltimore to accept this very bequest. We have, then, distinct and solemn evidence that the legislature have considered it entirely consistent for the corporation to have the identical legacy in question."

It is said by Judge Dillon, in his work on Municipal Corporations, that "Municipal and public corporations may be the objects of public and private bounty. This is reasonable and just. They are in law clothed with the power of individuality. They are placed by law under various obligations and duties. Burdens of a peculiar character

1 This short statement is substituted for that of the Reporter. Only so much of the opinion as discusses the power of a municipal corporation to take property in trust is given.- ED.

to

amtain mamtain schools

rest upon compact populations residing within restricted and narrow limits, to meet which property and revenues are absolutely necessary, and, therefore, legacies of personal property, devises of real property, and grants or gifts of either species of property directly to the corporation or for its own use and benefit, intended to and which have the effect to ease it of its obligations or lighten the burden of its citizens, are, in the absence of disabling or restraining statutes, valid in law. Thus, a conveyance of land to a town or other public corporation, for benevolent public purposes, as a site for a school house, city or town house, and the like, is based upon a sufficient consideration, and such conveyances are liberally construed in support of the object contemplated." (§ 566.)

And in Perry on Trusts, § 43, it is said: Municipal corporations cannot act as trustees if they are forbidden to take and hold lands, as by the statutes of mortmain, nor if they are not empowered to take the property. But if the trusts are within the general scope of the purposes of the institution of the corporation, or if they are collateral to its general purposes, but germane to them, as if the trusts relate to matters which will promote and aid the general purposes of the corporation, it may take and hold, and be compelled to execute them, if it accepts them. Thus towns, cities, and parishes may take and hold property in trust for the establishment of colleges, for the purpose of educating the poor, for the relief of the poor, though not paupers, by furnishing them fuel at a low price, and for the support of schools, or for any educational or charitable purposes within the scope of its charter." And cases are cited in support of the text.

Charles McMichen, a citizen and resident of Cincinnati, made his will in 1855, and died in 1858 without issue. He devised certain real and personal property to the city of Cincinnati and its successors, in trust, forever, for the purpose of building, establishing, and maintaining, as far as practicable, two colleges for the education of boys and girls. The supreme court of the United States, in Perin v. Carey, 24 Howard, 465, held, that this was a valid devise, and that "the city of Cincinnati, as a corporation, is capable of taking in trust devises and bequests for charitable uses, and can take and administer the devises and bequests in the will of C. McMichen." Upon this subject of the authority of municipal corporations to administer a trust, Mr. Justice Wayne, speaking for the court, said: "The law is, that where the corporation has a legal capacity to take real or personal estate, then it may take and hold it upon trust in the same manner and to the same extent as private persons may do. It is true that if the trust be repugnant or inconsistent with the proper purposes for which it was created, that may furnish a good reason why it may not be compelled to execute it. In such a case, the trust itself being good, will be executed under authority of a court of equity. Neither is there any positive objection, in point of law, to a corporation taking property upon trust not strictly within the scope of the direct purposes of its institutions,

but collateral to them, as for the benefit of a stranger or another corporation. But if the purposes of the trust be germane to the objects of the corporation, if they relate to matters which will promote and perfect these objects, if they tend to the suppression of vice and immorality, to the advancement of the public health and order, and to the promotion of trade, industry, and happiness, where is the law to be found which prohibits the corporation from taking the devise upon such a trust in a state where the statutes of mortmain do not exist, the corporation itself having an estate as well by devise as otherwise? We know of no authority which inculcates such a doctrine, or prohibits the execution of such trusts, even though the act of incorporation may have for its main objects mere civil and municipal government and powers."

Stephen Girard died in the year 1831, and by his will devised andiraud case bequeathed in the city of Philadelphia the residue of his estate in trust for the establishment and support of a permanent college for the education of poor white male orphans. This devise was sustained by the Supreme Court of the United States, and the court held, that “The corporation of the city of Philadelphia is capable of taking under a devise of real and personal estate in trust for the establishment and support of a college for poor orphan boys, and can execute the trust. Vidal v. Girard, 2 How. 61.

Bryan Mullanphy died in the year 1851, and by his will devised and bequeathed the undivided one-third of his property to the city of St. Louis, in trust, "to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis on their way to settle in the West," and this trust was sustained by the Supreme Court of Missouri, in the case of Chambers v. City of St. Louis, 29 Mo. 543.

It is said that the legislature has not granted to the city of Denver authority to acquire and hold real and personal property, except as it is necessary for the public uses of the inhabitants thereof, and that for that reason the bequest and devise to the city of Denver is an invalid one and should be declared void, and the court should hold that as to his residuary estate George W. Clayton died intestate. The decisions are, as we have cited, to the effect that where municipal corporations are organized for purely governmental purposes, they may accept gifts for charity if the charity is germane to the general purposes of the organization. The general purpose of all municipal corporations is to promote the general welfare and happiness of the people residing therein. Such was the purpose of the legislature in granting to the city of Denver its charter. To say that because this devise is for the benefit of a class of the inhabitants of the city of Denver or elsewhere it is a private and not a public charity is contrary to the decisions upon the subject.

The sections of the charters of Philadelphia, Cincinnati, and St. Louis quoted in the cases cited show that the charters of these cities and the charter of Denver are practically alike. In each is contained

the general provisions found in nearly all charters, that tend to the suppression of vice and immorality, to the advancement of the public health and order, and to the promotion of trade, industry, and happiness. If the city of Philadelphia can hold property in trust for the education of poor white male orphans, and the city of Cincinnati can lawfully execute a trust for the education of boys and girls, and the city of St. Louis can, without violating its organic law, administer a trust "for the purpose of furnishing aid to poor emigrants" passing through the city, there is no apparent reason why Denver, under her charter, which provides for the entertainment of visitors (trade), for the encouragement of manufactures (industry), for the assistance of charitable organizations, and for the good order, health, good government, and general welfare of the city, cannot accept and execute a trust for the education of poor white male orphans.

Furthermore, the legislature, by the act of 1901, clothed the city of Denver with full power and authority to accept the trust created under the will, and to administer it according to the terms and provisions of the devise. It is said that this devise must be construed with reference to the capacity of the city at the time of the death of George W. Clayton; that the estate, at the time of George W. Clayton's death, vested either in the heirs or in the trustee named. We cannot agree with counsel in this contention. The devise to the trustee is in the nature of an executory devise. It is to take effect when the executor, Moses Hallett, or an administrator with the will annexed, marshals the assets of the estate, selects a site, and erects a building, in accordance with the provisions of the will. Then, and not till then, in our judgment, is the city of Denver called upon to accept or reject the trust imposed.

Here, then, is a public charity. Through it Mr. Clayton seeks to bring the minds and hearts of poor orphans under the refining influence of education. After making such provision as he thought proper for the natural objects of his bounty, he has selected, as deserving of his benevolence, the poor white orphan boys of Denver and Colorado, and has devoted the residue of his great fortune to the erection and support of a permanent college for their free instruction and maintenance, that they may become useful citizens and honorable members of society. It is an indulgent, edifying, and worthy charity. It will lessen Denver's burdens of government. To thousands of poor orphan boys it will be a blessing forever, and it will be by them forever blest.

Our conclusions, therefore, are: That "the education and preferment of orphans," being one of the subjects mentioned in the statute of 43d Elizabeth, chapter 4, is to be regarded in Colorado as a public charity. That, there being power vested in the executor and the board of trustees of the college to select the objects of the testator's bounty, the trust created by the fourteenth section of the will is valid. That the city of Denver, in its corporate capacity, has power to accept the