Congregational Society v. Curtis , 39 Mass. 320 ( 1840 )

Shaw C. J.

drew up the opinion of the Court. In deciding this case, we think it will not be necessary to revert to all the points raised in the very full and elaborate arguments which have been submitted to us.

It is an action brought by the congregational society in Lanesborough, to recover two thirds of the income of a minis terial fund described in the statement of facts. The defendant, the trustee of that fund, has paid one half of the controverted sum to the plaintiffs, and the other to the baptist society in the same town, for the support of the ministry in that town. This he justifies under a resolve of the legislature passed in 1837, directing the income of the fund so to be distributed ; and the question is, whether that resolve is legal and valid and constitutes a good ground of this justification. Its validity is contested and denied on the ground, that the plaintiffs had a legal and vested right to the income of two thirds of this fund, and that it was not within the legitimate authority of the legislature to alter this appropriation, and give any part thereof to the baptist society, as they have attempted to do, and in form have done, by the resolve in question.

The land, from the sale of which this fund was raised, was originally granted by the Provincial legislature to the inhabitants of the town then, and for many years after, possessing and exercising all the capacities and functions both of a town and a parish. This was the state of that town in 1797, when they passed votes, providing with the consent of the minister, for the sale of the lands, under the authority of a resolve of the legislature. By that resolve, it was directed that the proceeds of the sale should be held as a fund, and the income paid over in certain proportions, to the congregational and episcopal societies, and with a further proviso, that it should be afterwards in ihe power of the legislature, on the application of any denom¡nation of Christians having a settled minister in the town, to make a new appropriation of the income.

In pursuance of this resolve, the town and the minister joined in the sale of the lands, and took securities, which have ever since constituted the fund in question.

This act of the town and of the minister, with the acquiescence of all persons interested for a period of nearly fifty years, is conclusive evidence of their assent to this resolve, and of course to all its provisions and conditions.

Had the town refused or declined to act upon this subject, and the lands had remained unsold, until other organized and incorporated parishes had been created within the same town, there is no doubt that the lands would have remained vested in the residue of the inhabitants, who would de facto have become the first parish, and would have succeeded to all the rights of the town held by it in its parochial character, before such division. But, at that time, although there was an episcopal society, it existed only as a voluntary association, and was not recognized as a parish. The town therefore was still acting both in a municipal and a parochial capacity, and its assent to the resolve in question, must be deemed to be the assent both of the town, and the present plaintiffs, constituting by subsequent organization the first parish. The resolve was passed with the assent of all those who were either legally or beneficially interested in the property.

Such a legislative act has been held to be valid, in a former suit, in relation to this same ministerial fund. “ With the consent of the parties legally and equitably interested in the grant, a legislative act will avail to enable those parties to carry into effect just and honest intentions in relation to the property, preserving the original purpose and object of the grant.” Humphrey v. Whitney, 3 Pick. 164.

The original object of the grant was the support of the ministry, for the benefit of all the inhabitants, not for the benefit of any particular denomination of Christians. Had the congregationalists formed a separate society, and become incorporated,. and the residue of the town been baptists, supposing the and had remained vested in the town up to the time of the incorporation of such separate congregational society, the bap tists would have composed the first parish, and held the land as successors. An appropriation therefore of the fund to the support of the ministry of several denominations, all being inhabitants of the town, is in no sense incompatible with the original purposes of the grant. We consider it therefore as already judicially setiled, that the resolve, authorizing the sale of the land, and the distribution of the income in certain proportions between the congregationalists and the episcopalians, was valid.

But then it is contended, that the proviso, reserving to the legislature the power of altering this distribution, in favor of any other denomination of Christians who should have a settled minister, was void, because the legislature then made no grant, out of which such a power could be reserved, and because the minister and town might have made the same disposition of the property, without the aid of the power of the legislature.

In the first place, we have seen that this resolve, including the proviso and reservation of power, was assented to and acted on by all parties in interest. The reservation of power to provide out of the fund for other denominations of Christians in the same town, was as much within the object and purpose of the original grant as the provisional and temporary distribution then made.

But it does; not and cannot appear that the inhabitants of the town, who may have consisted of persons of several Christian denominations, would have consented to join with the incumbent in the ministry, to alienate these lands, without the authority of the legislature, and that granted on condition that such power should be reserved. Nor can it appear that the legislature would have granted the power to alienate the lands with out such reservation.

By applying to the legislature for such power, the parties admitted their desire at least, if not their need, of such a power, to carry their real objects into effect. As they intended to provide not only for societies then in being, but for denominations of Christians who were not then in being as organized bodies, capable of granting, taking and acting, by deed or contract, the only mode in which it could be accomplished was, to ask the legislature to give its sanction to such an equitable arrangement. We think therefore that the plaintiffs, who claim directly as successors of the town, must be considered as legally and equitably bound by the assent of the town, and such assent, the power was well reserved, and might be executed by the legislature upon the happening of the contingency, upon which it was to be exercised. Such a power is not to be construed with the technical precision of a power reserved by an individual upon a grant of lands. The reservation was substantially in favor of other denominations of Christians, some of whom existed individually, but not as organized societies ; all those actually or potentially interested, asked the interposition of the legislature, upon a condition ; the legislature granted it upon that condition, it was accepted and acted upon, with that condition and reservation, and therefore the reservation was valid, and conferred on the legislature the power which it purported to reserve.

The next question is, whether the repeal of this proviso, under the circumstances stated in the case, was either a renunciation of the power reserved by the resolve of 1797, in favor of other denominations of Christians, or a final and complete execution of that power, so that the resolve of 1837, in favor of the baptists, was void.

It appears by the facts agreed, that in 1814, upon application made without any authority from the town, by the several ministers of the congregational and episcopal churches, and the selectmen, two of whom were congregationalists and one an episcopalian, the legislature, without an order of notice, passed a resolve repealing the above proviso, and making the former provisional distribution and appropriation absolute and perpetual. The Court are of opinion, that this act of the legislature, passed without the authority of the parties either legally or beneficially interested, and upon the unauthorized request of those who were adversely interested, and this without notice to those who were interested, was neither a renunciation, nor a final execution of the power reserved to them, and did not preclude their successors from exercising the power originally reserved.

Whether this power reserved as a perpetual benefit in favoi of denominations of Christians who should afterwards spring up in that town, could be renounced by one legislature so as to bind their successors, if done after notice to all parties then existing; or whether the Court would be bound to presume that an act done by the legislature, was done after due notice, are questions of difficulty, on which we give no opinion. It is found as a matter of fact, and was so in the case of Humphrey v. Whitney, that this resolve was not passed under these circumstances, and therefore this act did not deprive the legislature afterwards of the power reserved to them in the prior resolve, of making a new distribution of this fund in favor of the baptist society, which afterwards grew up and became regular ly organized and had a settled minister.

The Court are therefore of opinion, that the resolve of 1837 was within the authority of the legislature and valid, that it was a good authority to the defendant as trustee of the fund, to pay over the proportion of the income to the baptist society for the support of their ministry as he has done, and that the plaintiffs are not entitled to recover.

Plaintiffs nonsuit.