Inhabitants of Alna v. Plummer , 3 Me. 88 ( 1824 )

Weston J.

delivered the opinion of the Court at the ensuing term at Augusta, as follows.

It is not averred by the plea in abatement, that the inhabitants of Aina no longer have capacity to act as a town in matters of a parochial nature, by the formation therein of a separate and distinct parish; but it is alleged that, at the time of the commencement of this suit, certain persons, citizens of Aina in its política:! •capacity, had ceased to be members of the religious society, composed of the inhabitants of that town. And by chap. 114, sect. 1, of the revised statutes of this State, such persons are excluded from voting, “ whenever the inhabitants of any town are “ legally assembled to act on any subject, relating exclusively to “ parishes.” But their corporate character and capacity, as a town, remains unchanged. The inhabitants assemble and act as a town; and every inhabitant, as such, qualified as the law directs, has a right to vote; unless he. has, by his own act, withdrawn himself from them as a religious society, and from the obligations which they may assume in that capacity.

It is, and long has been, within the ordinary powers and duties of towns, in which no distinct and separate parish or religious society has been established, to provide for religious instruction. To this end they may vote and assess money for the erection and repair of meeting houses; and for the support and maintenance of ministers. And, in furtherance of these objects, they may enter into contracts, for the violation of which they may sue and be sued. If the two causes of action united in this writ, had been made the foundation of two suits, instead of one, the plaintiffs in each must have sued by the same name. The inhabitants of the town of Aina have but one name, and constitute but one corporation. But it is said that their parochial capacity is distinguishable from their muncipal; and that their rights in the one mustbe vindicated in a separate action, and cannot be combined with claims in the other.

The case is not analogous to one, in which a plaintiff might attempt to unite in the same action a claim in his own right with one, which he prosecutes en autre droit. When the inhabitants of a town, ip which there is no separate parish make provision for religious instruction, by the erection of a meeting house, or by voting and assessing money for the maintenance of a minister, they are as beneficially interested in these objects, as when they vote and assess money for the support of schools. Funds raised for all these purposes, are paid into the common treasury, from which they are drawn and appropriated, under the authority of the town. When the town ceases to have parochial rights and duties, by the establishment therein of a separate parish, it is succeeded by a new corporation, having a distinct organization and separate officers; and the town as such can no longer make or enforce any contracts of a parochial nature. But until that event takes place, we are not aware that there exists any legal objection to the joinder of the two causes of action, set forth in the plaintiff's declaration.

We are, therefore, of opinion that the plea in abatement is bad; which renders it unnecessary to consider the objections made to the replication.

Judgment of respondeat, ouster,