Fisher v. Whitman

Morton J.

delivered the opinion of the Court. The town of Walpole, like many other small towns, has always transacted its parochial business in town meeting. The plaintiff being an inhabitant of the town, was of course a member of the parish, and, as such, liable to taxation. This liability still continues, unless he has legally withdrawn from the parish. This could only be done by removing from the town, or by becoming a member of some other religious so- " ciety and giving due notice thereof.

On the 4th of October 1826, thq plaintiff and others entered into a written agreement to form themselves into a religious society, by the name of “ the Orthodox Congregational Society in Walpole.” And on the 9th of the same month a meeting of the associates was holden and a moderator, a clerk, a standing committee and a committee for signing certificates, were chosen. This appears to be a regular formation and organization of a religious society pursuant to ' the statute of 1811, c. 6. And the members then became entitled to all the privileges and exemptions secured by that act. The second section provides, “ that whenever any *356person shall become a member of such a religious society,” and “ such membership shall be certified by a committee of such society, chosen for this purpose, and filed with the clerk of the town where he dwells, such person shall forever afterwards be exempted from taxation &c., in every other religious corporation whatsoever, so long as he shall continue such membership.” The statute then prescribes the form of the certificate.

On the 30th of November 1826, a certificate in the prescribed form, including the name of the plaintiff and more than sixty others, was made and signed by the committee chosen for that purpose. And on the next day it was filed with the town clerk. It is difficult to discover any even plausible objection to the organization of this society ; or to the eviidence of the membership of those individuals whose names were contained in this certificate.

Although the statute of 1811 gives to voluntary associations some of the attributes of corporations ; yet they clearly do not come within the preexisting laws relative to parishes and other religious societies. They" are not governed by the regulations in relation to the calling of meetings ; the time of holding them ; the choice of officers ; or the qualification of voters. One object of this statute was to give le gal existence to these associations, without subjecting them to the then existing rules applicable to other religious cor porations. And perhaps its minor purpose, as is indicated m the title, was to remove burdensome restraints and imposi tions, and to increase religious freedom.

Formerly the whole commonwealth was divided into par ishes, and every individual was holden to contribute towards the support of public worship in the parish where he resided. Before the revolution, some exceptions to this general rule, in favor of Quakers and some others, had been allowed. Our constitution introduced some further and still more liberal provisions. Subsequent to its adoption a new class of religious corporations, called poll parishes, were created. These possessed less extensive powers, and were relieved from some of the inconveniences and embarrassments to which territorial parishes had become subject.

*357The statute of 1811 established a third class of religious corporations, with still more limited powers and more extensive exemptions. They were not bound to impose taxes and were not required to have assessors. They were at liberty to call their meetings in such manner, and to hold them at such seasons of the year, as might suit their convenience or pleasure. They might regulate the admission and expulsion of members, and determine in what manner and by what officers they would manage their affeirs. They could not well transact their corporate business without a recording officer ; but they might require or dispense with an oath of office, at their option. Although the keeping of records may be indispensable to the exercise of corporate powers, yet the statute does not require that their clerks shall be under oath. And whether without such qualification they would be competent to certify their records or not, it is not essential to their legal organization, or to the validity of the certificate of membership.

The statute provides that the certificate be filed with the town clerk of the town where the member resides. But it does not expressly require that he shall file it himself. It is however probable, that to be effectual, it must be done by his authority. For a person may join a voluntary society, and yet not desire to avail himself of the exemptions which the law will give him. He may wish to form a new religious connexion, and to perform his duties to his new associates, and yet choose not to withdraw his pecuniary liabilities from the corporation of which he had been a member. And surely no one can compel him to do so.

But he is not bound to file his certificate in person. Where, as in the present case, it may be convenient to include several in the same certificate, each one cannot deliver it to the town clerk. Nor would it be reasonable or practicable for all to join in the act. It may be done by an authorized agent, Sr if done without authority, it may be rendered valid by subsequent adoption or ratification. In this case the committee were directed by vote, to file a certificate for all the members of the society. Now whether the plaintiff was actually present at this meeting or not,- his conduct in join*358ing the society just before, in continuing to act as a. member in availing himself of all the legal exemptions and privileges of membership, and in contending for his rights in this suit, furnishes plenary proof of intention not only to become a member of the new society, but to dissolve his connexion with the old parish.

The plaintiff having become a member of the Orthodox Congregational Society, and having caused a certificate of his membership to be filed according to law, on the 14th of November, 1826, from that time ceased to be a member of the old parish or to be liable to taxation in it. And this exemption will continue as long as his membership continues. Has this ceased ?

The society has not, by any act of its own, dissolved itself. It has built a meetinghouse, settled a minister, and continues to maintain public worship. The continued existence of a corporate body does not depend upon the regularity or legality of the calling or conducting of its public meetings. Even if the meetings of the society holden under the statute of 1823, c. 106, were illegal, of which we see no evidence, it would not affect the legal existence of the society, or the plaintiff’s membership in it.

It has very recently, upon full consideration, been decided, that the statute of 1823 does not repeal the statute of 1811 c. 6. Oakes v. Hill, 10 Pick. 333, 344. The former is expressly in addition to the latter, and thus recognises its continued operation. The statute of 1823 was intended to introduce new regulations, without abolishing old ones ; to prescribe new modes of calling meetings and organizing religious societies, without superseding those before used. It expressly gives an election. Each religious society may (not must) organize in the manner therein prescribed.

The second section introduces a new mode of separating 'rom one society and joining another, but does not abolish or supersede the old one. The one is not incompatible with the other. But each may be resorted to, as may be mos* convenient for the member or most consonant to the constitution or practice of the society which he desires to leave or join. Sumner v. First Parish in Dorchester, 4 Pick. 361.

*359From the view which we have taken of the case, it appears that the Orthodox Congregational Society in Walpole was legally constituted ; that the plaintiff became a member of it; that he gave legal notice of his membership ; that the new society still continues to possess and exercise its powers and rights, and to perform its duties ; and that the plaintiff’s membership in the new society, and of course his exemption from taxation in the old parish, still remain in force and unimpaired.

Judgment of the Court of Common Pleas affirmed.