Oakes v. Hill

31 Mass. 442

Opinion

MORTON J.

drew up the opinion of the Court.

* In the former trial of this case it was decided,† that a parish had no power to exclude any of the inhabitants of its territory from parochial rights and privileges ; and that every inhabitant of a parish not procuring an exemption by becoming a member of some other religious society, was liable to all the burdens and entitled to all the rights of a member of the parish. Parishes were likened to towns in this respect, and it was holden that the former had no more power to exclude from parochial, than the latter had, from municipal rights.

In pursuance of these principles it was determined, that when the plaintiff dissolved his connexion with the voluntary society of which he had been a member, he ipso facto became a member of the parish. A certificate of such dissolution, from the clerk of the voluntary society, was produced at the former trial ; no question was then started as to the effect of it; and the decision was made upon the assumption that the plaintiff had ceased to be a member of the voluntary association. As this point had not been investigated, it was intentionally left open, in order that if there was any doubt whether the plaintiff had in fact withdrawn from that society, it might be thoroughly examined.

This is the only remaining question in the case. Eveiy other point was fully considered and decided in the former judgment. The action has been again tried ; the facts are before us, and we are now to decide whether they show a disso lution of the plaintiff's connexion with the voluntary society. Having been a member, it is incumbent on him to show that lie had ceased to be such before be claimed a right to vote in the old parish.

It was argued that the voluntary society had been dissolved, and so all its members divested of all the rights and irnmunities derived from their association. This is the first question to be determined.

It was holden in our former judgment, that religious societies formed under the statute of 1811, c. 6, possessed limited corporate powers and were to be treated as, and deemed to be, corporations for certain purposes.

It is said in books of high authority, that a private corporation may be dissolved by statute ; by the death of all its members ; by a surrender of its franchises ; and by a forfeiture of its charier, through negligence or abuse of its franchises. 2 Kent’s Comm. 245 ; 1 Bl. Comm. 485. It is very manifest that this society has not been dissolved in either of these methods.

These corporations are somewhat peculiar as to the mode of their creation and the nature and extent of their powers, duties and liabilities. And as by the provisions of our statutes, every member has the power of withdrawing at pleasure, it would seem that the society itself, having discharged all its liabilities, might by its own act cause its own dissolution. A* least, this might be done by the unanimous act of the society, for every individual might withdraw and leave none to sustain the corporate powers.

But in the case at bar there was no vote to dissolve the so ciety, nor any corporate act evincing an intention to surrender or abandon their corporate powers. If the sixty-nine who filed their certificate with the assessors, had actually withdrawn from the society, yet it does not appear, nor is it to be presumed, that there were no other members. The society might well continue after their secession.

The burning of the records of the society does not prove its dissolution. The existence of a corporation does not depend on the preservation of its records. The act of an individual member or an officer of a corporation, cannot destroy the corporation itself. Besides, the records were not destroyed till after the plaintiff had claimed the right to vote and commenced this action.

The omission of the members to hold meetings, had it been for a much longer time, would not have shown the extinction of the society. From the last meeting up to the time when it is contended that it had ceased to exist, was a period of only six months.*

Upon the whole, we think it very clear that the report furnishes no evidence of the dissolution of the society.

Had the plaintiff then withdrawn from the society by his own act, or be^n dismissed from it in any legal manner ?

A member of a parish or other religious society, may withdraw without the consent of the corporation of which he was a member. But this can only be done in the manner prescribed by our statutes upon the subject. The only method pointed out is by becoming a member of another religious society, and filing a certificate of the fact, either with the clerk of the town, by St. 1811, c. 6, § 2, or with the “ clerk of the society left,” by the St. 1823, c. 106, § 2. The plaintiff had not resorted to either of these modes to dissolve his connexion with the voluntary society.

Had he been dismissed from the society by any act of theirs ?

Corporations of this kind have the power to regulate the admission, the expulsion and the dismission of members. When they are created by a direct act of the legislature, they sometimes have it by express grant. But if this be not the case, they have it as incidental to the corporate powers granted. This power may be exercised by the whole society, or by any of its officers to whom it may be delegated. It is a proper subject to be regulated by the by-laws of the society.

No officers of the society, by virtue of their offices, nave this power. If they have it at all, it must be by the express delegation of the society itself. There is no evidence, nor have we any reason to believe, that it was ever granted, either by the by-laws, or by any other corporate act of this society. The clerk of the society clearly had no power of dismissing members. And there is no evidence that the society ever gave a dismission to the plaintiff. If they did it at all, it must have been by a vote. The proper evidence of' such vote would be, a certified copy of the records. No such copy is produced. The paper attested by the clerk does not purport to be a copy of any record, but a certificate of a fact. Clerks of religious and other corporations, and other recording officers, may make and verify copies of their records, and in doing so, act under the obligation of their oath of office. Of the verity of such copies their certificates are evidence. But it is no part of their duty to certify facts, nor can their certificates he received as evidence of such facts.

If the clerk undertook to give the plaintiff a dismission, it was an unauthorized act on his part and can have no effect.

Upon a view of all the facts reported, we are very clearly of opinion, that the plaintiff had not ceased to be a member of the voluntary society at the time when he claimed a right to vote in the old parish ; that the clerk of the parish did right, in refusing to give him a certificate that he had become a member of the parish, and also, when presiding in parish meeting, n reacting his vote.

The verdict must be set aside and a new trial granted.

Shaw C. J. did not sit in the cause.

See Oakes v. Hill, 10 Pick. 333.

In the case of Lynde v. Hill, argued and determined at October term 1833, the plaintiff claimed damages of the defendant for refusing him permission to vote for a moderator at the several meetings of the First Parish in Malden on October 20, 1828, March 23, 182E), and March 22, 1830. The facts generally were the same as in Oakes v. Hill. It appeared that the society for the support of orthodox preaching had never met for the transaction of parochial business, after the meeting on April 18, 1828, at which the society was organized; and the counsel for the plaintiff stated, that the society had had no minister and' had held no meeting for public worship. The Court decided, that assuming this suggestion of the counsel to be true, the omission for two years, to hold a meeting for parochial purposes and to choose officers, did not operate as a dissolution of the society.