Fletcher, J.
Thei petitioners maintain that, by the act of the legislature of March 8th, 1844, the name of the parish or religious society, before that time known as Mount Zion Church, was changed to that of St. Luke’s Church in Chelsea ; and that the members of said parish or religious society were incorporated by the name of the proprietors of St. Luke’s Church in Chelsea, with power to hold real and personal estate for parochial purposes only; that thus Mount Zion Church became an incorporated parish, by the name of the proprietors of St. Luke’s Church in Chelsea; and that the church and land and property which have been occupied by the parish, rightfully and lawfully belong to the parish in[233]*233corporated by the act of the legislature, by the name of St, Luke’s Church in Chelsea, and formerly known by the name of Mount Zion Church.
On the other hand, the respondents maintain that, by the act of the legislature, the name of Mount Zion Church was changed to St. Luke’s Church in Chelsea; that with this new name the former remained a parish, for parish purposes, wholly under its old organization, and was not otherwise affected by the act; that said act, having thus in the first section disposed of and dismissed under a new name Mount Zion Church, proceeds to create and incorporate, and did create and incorporate, an entirely new and distinct corporation, by the name of the proprietors of St. Luke’s Church in Chelsea; that this new corporation is not a parish, nor created for parochial purposes, but for the purpose of holding property ; that the church edifice and land and property which have been occupied and used by the parish, belong to and are owned by this new corporation, the parish having no title to the same; and that the parish of St. Luke’s Church, and the corporation called the proprietors of St. Luke’s Church in Chelsea, are not one and the same, but distinct and independent bodies, organized for different purposes. In support of their respective positions, the petitioners and respondents rely upon various affidavits and documents filed in the case, and referred to and commented on at the hearing.
The controversy turns upon the construction of the act of March 8th, 1844. The question is, did that act incorporate the members of Mount Zion Church merely as a parish or religious society, for parochial purposes, with power to hold property for such purposes merely, or did it create and incorporate an entirely new corporation, not for parochial purposes, but to hold property as a joint stock company? -To settle this question, it is necessary to examine and consider the evidence in the case. It appears very clearly and satisfactorily from the evidence in the case that, in August, 1841, certain persons, twelve in number, associated themselves together as members of Mount Zion Church, a religious society in Chelsea, according to the forms and usages of the protestant epis[234]*234copal church; that they shortly afterwards organized as a parish or religious society, according to the statute, by the name of Mount Zion Church in Chelsea; that soon after their organization a hall was procured as a place for public worship, in which they had public service, and that in about a year a rector was called and settled ; and that, in the spring of 1843, various meetings were held by the worshippers of Mount Zion Church, for the purpose of devising ways and means of raising money to build a church. To aid this object, an appeal to the public was published in a newspaper in Boston, in July, 1843, which appeal was afterwards printed in another form, and circulated in Boston and elsewhere. This appeal was also bound in a subscription book, and a considerable amount was obtained by subscriptions of various persons out of Chelsea. The ladies of the parish, also, raised a considerable sum by fairs and otherwise. The" communion offerings and monthly collections of the parish were also directed to this object. A sum from the income of the parish was also appropriated; various individuals in Chelsea contributed; and a considerable sum was raised from various members of the parish. In the spring of 1843, at a meeting of the ward-1 ens and vestry, a committee was appointed to wait on the agent of the Winnisimmet Company, with a view to obtain from the company a gift to the parish of a piece of land towards erecting a church or chapel; and a lot of land was ultimately given by the company, which was sold, and the proceeds added to the fund for erecting the church. After the act of incorporation, a deed of the land was made to the proprietors of St. Luke’s Church in Chelsea.
In February, 1843, the rector purchased two lots of land in Chelsea, on favorable terms, with a view to offer them to the parish at cost; and in October of that year, he offered the land to the parish on certain conditions, and the offer was accepted. While thus intent upon the object of obtaining for themselves a house in which to worship, at a meeting of Mount Zion Church, duly called for that purpose, it was voted, that a petition be presented to the legislature, at their then present session, praying them for leave to change the [235]*235name of the same to that of St. Luke’s Church, and for an act of incorporation as the proprietors of St. Luke’s Church in Chelsea. This vote is for an act of incorporation as the proprietors of St. Luke’s Church in Chelsea. In pursuance of this vote, a petition was presented, which states the original organization of Mount Zion Church, and then proceeds: 11 The said church now propose to erect a suitable edifice in which to worship, and the records of said church being incomplete, by reason of circumstances beyond their control, in order to the better management of their affairs, and to greater security in the same, they pray for a special act of incorporation, and as said church has, since its organization, increased in numbers, a very great majority, if not the whole body, would prefer to be called by the name of St. Luke’s Church in Chelsea.” This petition was signed by all the male members of the parish but one, who was then out of the country. Upon this petition the act of the legislature was passed; the first section changing the name of Mount Zion Church to St. Luke’s Church; and the second section making William S. Bartlett, Stephen D. Massey, and William Knapp, three of the signers of the petition, and their associates and successors, a corporation by the name of the proprietors of St. Luke’s Church in Chelsea, with power to hold real estate to an amount not exceeding eight thousand dollars, and personal estate not exceeding two thousand dollars, to be applied exclusively to parochial purposes. The term “ associates ” in the act doubtless was used to include the other signers of the petition, with those particularly named, rather than to insert the names of all the individuals who had petitioned for the act of incorporation. Looking at the evidence thus far only, it would seem to be quite too clear for controversy, that, by the act of March 8th, 1844, the Mount Zion Church was incorporated as a parish or-religious society, by the name of the proprietors of St. Luke’s Church in Chelsea, with power to hold real and personal estate for parochial purposes only. All the male members of Mount Zion Church but one, who was absent, in pursuance of a vote of that parish petitioned to be thus incorporated; and they were thus incorporated, and [236]*236the act duly accepted. The terms of the act are clear and intelligible, both as to the persons incorporated, and the object of the incorporation. The act is in no way doubtful or ambiguous as to its.meaning or purpose.
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Fletcher, J.
Thei petitioners maintain that, by the act of the legislature of March 8th, 1844, the name of the parish or religious society, before that time known as Mount Zion Church, was changed to that of St. Luke’s Church in Chelsea ; and that the members of said parish or religious society were incorporated by the name of the proprietors of St. Luke’s Church in Chelsea, with power to hold real and personal estate for parochial purposes only; that thus Mount Zion Church became an incorporated parish, by the name of the proprietors of St. Luke’s Church in Chelsea; and that the church and land and property which have been occupied by the parish, rightfully and lawfully belong to the parish in[233]*233corporated by the act of the legislature, by the name of St, Luke’s Church in Chelsea, and formerly known by the name of Mount Zion Church.
On the other hand, the respondents maintain that, by the act of the legislature, the name of Mount Zion Church was changed to St. Luke’s Church in Chelsea; that with this new name the former remained a parish, for parish purposes, wholly under its old organization, and was not otherwise affected by the act; that said act, having thus in the first section disposed of and dismissed under a new name Mount Zion Church, proceeds to create and incorporate, and did create and incorporate, an entirely new and distinct corporation, by the name of the proprietors of St. Luke’s Church in Chelsea; that this new corporation is not a parish, nor created for parochial purposes, but for the purpose of holding property ; that the church edifice and land and property which have been occupied and used by the parish, belong to and are owned by this new corporation, the parish having no title to the same; and that the parish of St. Luke’s Church, and the corporation called the proprietors of St. Luke’s Church in Chelsea, are not one and the same, but distinct and independent bodies, organized for different purposes. In support of their respective positions, the petitioners and respondents rely upon various affidavits and documents filed in the case, and referred to and commented on at the hearing.
The controversy turns upon the construction of the act of March 8th, 1844. The question is, did that act incorporate the members of Mount Zion Church merely as a parish or religious society, for parochial purposes, with power to hold property for such purposes merely, or did it create and incorporate an entirely new corporation, not for parochial purposes, but to hold property as a joint stock company? -To settle this question, it is necessary to examine and consider the evidence in the case. It appears very clearly and satisfactorily from the evidence in the case that, in August, 1841, certain persons, twelve in number, associated themselves together as members of Mount Zion Church, a religious society in Chelsea, according to the forms and usages of the protestant epis[234]*234copal church; that they shortly afterwards organized as a parish or religious society, according to the statute, by the name of Mount Zion Church in Chelsea; that soon after their organization a hall was procured as a place for public worship, in which they had public service, and that in about a year a rector was called and settled ; and that, in the spring of 1843, various meetings were held by the worshippers of Mount Zion Church, for the purpose of devising ways and means of raising money to build a church. To aid this object, an appeal to the public was published in a newspaper in Boston, in July, 1843, which appeal was afterwards printed in another form, and circulated in Boston and elsewhere. This appeal was also bound in a subscription book, and a considerable amount was obtained by subscriptions of various persons out of Chelsea. The ladies of the parish, also, raised a considerable sum by fairs and otherwise. The" communion offerings and monthly collections of the parish were also directed to this object. A sum from the income of the parish was also appropriated; various individuals in Chelsea contributed; and a considerable sum was raised from various members of the parish. In the spring of 1843, at a meeting of the ward-1 ens and vestry, a committee was appointed to wait on the agent of the Winnisimmet Company, with a view to obtain from the company a gift to the parish of a piece of land towards erecting a church or chapel; and a lot of land was ultimately given by the company, which was sold, and the proceeds added to the fund for erecting the church. After the act of incorporation, a deed of the land was made to the proprietors of St. Luke’s Church in Chelsea.
In February, 1843, the rector purchased two lots of land in Chelsea, on favorable terms, with a view to offer them to the parish at cost; and in October of that year, he offered the land to the parish on certain conditions, and the offer was accepted. While thus intent upon the object of obtaining for themselves a house in which to worship, at a meeting of Mount Zion Church, duly called for that purpose, it was voted, that a petition be presented to the legislature, at their then present session, praying them for leave to change the [235]*235name of the same to that of St. Luke’s Church, and for an act of incorporation as the proprietors of St. Luke’s Church in Chelsea. This vote is for an act of incorporation as the proprietors of St. Luke’s Church in Chelsea. In pursuance of this vote, a petition was presented, which states the original organization of Mount Zion Church, and then proceeds: 11 The said church now propose to erect a suitable edifice in which to worship, and the records of said church being incomplete, by reason of circumstances beyond their control, in order to the better management of their affairs, and to greater security in the same, they pray for a special act of incorporation, and as said church has, since its organization, increased in numbers, a very great majority, if not the whole body, would prefer to be called by the name of St. Luke’s Church in Chelsea.” This petition was signed by all the male members of the parish but one, who was then out of the country. Upon this petition the act of the legislature was passed; the first section changing the name of Mount Zion Church to St. Luke’s Church; and the second section making William S. Bartlett, Stephen D. Massey, and William Knapp, three of the signers of the petition, and their associates and successors, a corporation by the name of the proprietors of St. Luke’s Church in Chelsea, with power to hold real estate to an amount not exceeding eight thousand dollars, and personal estate not exceeding two thousand dollars, to be applied exclusively to parochial purposes. The term “ associates ” in the act doubtless was used to include the other signers of the petition, with those particularly named, rather than to insert the names of all the individuals who had petitioned for the act of incorporation. Looking at the evidence thus far only, it would seem to be quite too clear for controversy, that, by the act of March 8th, 1844, the Mount Zion Church was incorporated as a parish or-religious society, by the name of the proprietors of St. Luke’s Church in Chelsea, with power to hold real and personal estate for parochial purposes only. All the male members of Mount Zion Church but one, who was absent, in pursuance of a vote of that parish petitioned to be thus incorporated; and they were thus incorporated, and [236]*236the act duly accepted. The terms of the act are clear and intelligible, both as to the persons incorporated, and the object of the incorporation. The act is in no way doubtful or ambiguous as to its.meaning or purpose. The members of Mount Zion Church are clearly and expressly incorporated, and incorporated manifestly as a parish or religious society, by the name of the proprietors of St. Luke’s Church in Chelsea, with the power of holding real and personal property for parochial purposes, and for no other purposes.
But if is said, and said truly, on the part of the respondents, that, from the latter part of September to the early part of December, 1843, and before the application for the act of incorporation, several meetings were held by the subscribers to the stock for the erection of a church or chapel. But there is nothing in the records of the meeting of these subscribers to the stock, showing any intention of these persons to obtain or attempt to obtain any act of incorporation, or to become a corporation. The respondents further say, and say truly, that after the act of the legislature, there were two distinct organizations; that there was an organization of the parish of St. Luké’s Church, as one body, and an organization of the proprietors of St. Luke’s Church, as another body; and that these two bodies held separate meetings, and chose their separate and appropriate officers, and so continued down to the time of filing this petition; the same individuals, to a considerable extent, forming both bodies, though there were some who acted only in one. These two bodies, the respondents maintain, were two distinct, independent corporations; St. Luke’s Church being the same corporation originally organized as a parish under the Rev. Sts. c. 20, by the name of Mount Zion Church, (the name only being changed by the act of the legislature,) and continuing to be and to act as a parish with parish officers; and the proprietors of St. Luke’s Church being a new and distinct corporation, originally created by the act of the legislature, not as a parish or for parish purposes, but as a joint stock company, merely with power to hold property and manage financial affairs; that the church and land purchased with the money raised by subscription, and con tribu[237]*237tions and other means put in motion by the original parish, with a view to obtain a house of public worship for their parish, belong exclusively to this new joint stock corporation, and not to the parish; that the parish, with their appeal to the public for aid, and their subscription papers, and their efforts towards improving their condition, all along down from 1843, have got a new name and nothing else; that the church edifice, erected in a great measure by the charitable contributions of the Christian public, to a religious society, and solemnly consecrated for divine service, belongs not to the parish as its place of worship, but to a merely secular, property-holding corporation, whose functions are wholly financial. But it is quite impossible to maintain this view of the case. The act of the legislature of March, 1844, surely did not create a joint stock company; there was no application for such a corporation, and the terms of the act do not import the creation of such a corporation.
The members of an existing parish applied for a change of name and an act of incorporation, for the reasons stated in the petition. The prayer of this petition was granted by the legislature, and an act of incorporation was passed, authorizing the corporation to hold property, to be applied exclusively to parish purposes. This most manifestly was incorporating a parish for parish purposes, and not a joint stock company, merely to hold property. If the corporation, the proprietors of St. Luke’s Church in Chelsea, is not a parish but a joint stock company, there is nothing to show who are the members of the corporation, or what individuals are the lawful owners of the land and property which have been occupied by the parish.
It is stated in the evidence, that three persons only of the original contributors of the funds for erecting the church edifice, and whose united subscriptions thereto amounted only to between two and three hundred dollars, are now associated with those who claim to be proprietors of the church edifice. If the corporation of the proprietors of St. Luke’s Church in Chelsea are a joint stock company merely, and they own the church edifice and land, there is nothing to limit ox [238]*238restrict their right. If they have a legal title to the property, there is nothing to show that it is any thing less than an absolute title, so that they may dispose of the property as they please, sell to whom they please, for such a sum as they please, and appropriate the proceeds as they please. And thus all the sums contributed in various ways, to erect a church for a parish, might go to the benefit of a joint- stock company, and the parish have nothing.
But this cannot be the just and legal effect of the act of, incorporation. The different organizations, which took place after the passage of the act, were irregularities of proceeding, the result no doubt of misunderstanding and mistake. Some of the contributors probably expected to obtain the amount of their contributions in pews, and they took upon themselves the management of the financial affairs. It is a matter of frequent occurrence, that persons contribute to funds for a church, with the agreement that the amount shall be re-paid in a pew or pews. Those of the parish who had not contributed to the fund, generally, if not in every instance, withdrew from the meetings held for financial affairs, doubtless without any particular consideration as to their rights, or of the nature or effect of these separate organizations. But these mistakes and misunderstandings and irregularities of proceedings, cannot alter the law or the legal rights of the parties. There is but one corporation. The legislature did not incorporate a joint stock company, or a corporation empowered merely to hold property; but incorporated certain persons as a parish for parochial purposes, in express terms, by the name of the proprietors of St. Luke’s Church in Chelsea. “ The proprietors of St. Luke’s Church in Chelsea,” is the corporate name of the parish, and the property belonging to the proprietors of St. Luke’s Church in Chelsea is the property of the parish; and there is no other corporation, and no other persons who have any legal title to such property.
A question was made on the hearing, whether the writ of mandamus was the proper form of remedy for the petitioners, even if their claim of right was established ; and it was said, that the proper remedy was by replevin or bill in equity, [239]*239There was evidence, that the petitioners had endeavored to obtain the boohs and papers sought for, by a writ of replevin, but without success.
It was said, that the writ of mandamus could not be claimed as a matter of right; and that the application was to the discretion of the court. But this is not an arbitrary discretion ; it is a judicial discretion ; and when there is a right, and the law has established no specific remedy, this writ should not be denied.
It was further said, that this writ was granted only to prevent a failure of justice, and generally only for some great public purpose. But the value of the matter, or the degree of its public importance, is not to be too nicely and scrupulously weighed. If the writ is to be granted only in a case of public importance, this is a case of public importance The preservation of the rights, and securing the peace, and quiet and order of a parish and religious society, is a matter of great public interest and importance.
This writ is no doubt more freely and frequently granted at the present time than it was formerly. It lies to a former town clerk, or clerk of a company, to deliver to his successor the common seal; books, papers and records of the corporation, which belong to his custody. Indeed, it lies to any person, who happens to have the books of a corporation in his possession, and refuses to deliver them up. In fact, the writ of mandamus is the peculiar and appropriate remedy in a case like the present. Writ granted.
Metcalf, J., did not sit in this case.