Williams v. Town of North Hero

46 Vt. 301

• Court: Supreme Court of Vermont
• Decided: October 15, 1873
• Status: Published

Opinion

The opinion of the court was delivered by

Barrett, J.

The charter was granted in 1779 to Ethan Allen and others. It was entire, and embraced what were then known and cálled in it, South Island and North Island, and were designated as the “ Two Heroes.” They were separated in 1788 into the two townships of North Hero and South Hero. In 1798, South Hero was divided into what are now called South Hero and Grand Isle. The right in question was appropriated by that charter to the first settled minister. The controversy in this case is, mainly, as to the plaintiff’s claim that he is entitled to that right, by reason of having become the 'first settled minister, according to the terms and meaning of the grant. This controversy hinges, mainly, on the closing expression in the provision of the grant, by which this and five other rights are reserved and appropriated to the purposes named, viz: “ Which said six rights shall, together with their improvements, rights, rents, profits, dues, and interests, remain unalienably appropriated for the uses and purposes for which they are respectively assigned, and be under the charge, direction, and disposal of the inhabitants of said island forever.”

It is claimed by the defence, that the inhabitants of the island did not so participate in the alleged settlement of the plaintiff, as to constitute the “ disposal ” intended by the charter, and as was necessary, in order to entitle the plaintiff to take and hold as the first settled minister. In order to determine the meaning and effect to be given to the charter in this respect, it is proper to recur to the ideas, law, and usages, prevalent at the time the charter was granted. There was then no statute law on the subject in this state. In Massachusetts and Connecticut, from which states the greater portion of the inhabitants of this state had come, the matter of settling and supporting ministers of the gospel, and houses of religious worship, was the subject of town or parish duty, under statutory laws In .this state, prior to statutes on the subject, that matter was administered upon the ideas, and after models, furnished by those s.tates. Our first statute on the subject was made in 1783 (Slade’s St. Papers, 472), in conformity to the same ideas and models. By it, towns were authorized to prbvidc places for public worship, and for the settlement and support, of ministers of the gospel, by a vote of two thirds of the legal voters being of similar sentiments as to the mode of worship. The next enactment was in 1787, making provisions for the same things in “ corporated towns,” apd . also by associations of persons not included in corporated towns, without regard to similarity of sentiment or sect. The next was in 1797, superseding the former statutes. In section 1, provision is made for the voluntary association of any number or description of persons, to agree and hire a minister ; to fix on a place or places, or to erect a house or houses, for so'cial worship ; and to raise money by subscription, or on the list of polls and estate, and to collect the same by a- collector. Sec. 2 provides for the associating of twenty-five or more of the inhabitants of the town, being of a similar sect or denomination of Christians, into a society, with authority to appoint places of public worship, to determine places for building-houses for public worship, &c.; also, to vote to hire, or otherwise agree with, a minister to officiate in such town or parish, as the minister of such inhabitants ; and also further to vote any minister such settlement and annual support, in moneys or otherwise, as shall be thought will most conduce to the peace, happiness, and prosperity of such inhabitants, and to raise the same by taxes from time to time, to be assessed on the polls and ratable estates of tlie inhabitants composing such society. It is thus seen that that statute — the only one in force after it was passed — provided equally for the association of any number, without regard to the sect or denomination of the respective individuals thus associating ; and also for the associating of twenty-five or more of a similar sect or denomination. It is plainly apparent that the latter kind of association is no more likely to embrace the greater part of the inhabitants of the town, without regard to sect or denomination, or of the greater part of the prevailing denomination, than the former. It seems plain that neither kind of association was contemplated as representing the town, or as representing the preponderance of religious sentiment, as against the residue of the inhabitants of the town. That statute of 1797 made an end of any action by towns as such, and of any municipal corporate function in the matter of public worship, and of the settlement and support of ministers. The whole matter was left to associations to be formed under that statute.

That statute was modified in some of its details in 1801, and was all repealed in 1807, except the first section, which provided for only voluntary associations, without regard to the sentiment, sect, or denomination of the individuals associating. That continued till 1814- when an act was passed which provided that such associations might become corporations. This continued .to bo the statute law of this state till the icvision of 1839, and, in effect, it has thus continued to the present time. As showing that the legislature in 1814 had the idea that associations, formed and becoming corporations in virtue of the act of that year above named, were invested with the office and authority of settling ministers, the language of the form given in that act for the argreeinent to associate, is significant, viz : “ for the purpose of settling and supporting a minister.”

Now, on recurring to the charter, it is to be noticed that it does not intimate what shall constitute the requisite settlement of the first settled minister, nor does it intimate by its terms that the islands, in the exercise of municipal functions, or the inhabitants of the islands in any municipal relations, are to have anything to do in order to constitute a valid first settlement of a minister. Yet, in view of the prevalent ideas and usages of the time, I doubt whether any other mode of settling a minister was in mind, or whether there was then any forecast as to probable changes in respect to that matter. It is not controverted, nor could it well bo, in view of the terms of the charter, and of the history of the subject, both general and judicial, that he who should be the first minister lawfully settled, would take that right under the charter. In Williams’ History of Vermont, 1st ed. 337 ; lb. 2d. ed. vol. 2, 384, it is said that in the grants by Benning Went-worth, the third right reserved was for the first settled minister, “ Intended for his private property, to encourage the settlement of a minister in the new plantations. In the grant of townships which have been made by the government of Vermont, two rights have been reserved for the support of the clergy : one for a parsonage, designed for the support of a minister, and unalienable from that purpose ; another to become the property, and designed to encourage the settlement, of the first minister. This right accrues to the first clergyman who is settled in the town, of whatever denomination he may be. The salary of the minister ariseth wholly from the contract which the people may make with him. These contracts are altogether voluntary ; but, when made, by a law passed October 18, 1787, are considered as being of equal force and obligation as any other contracts; but no persons of a different denomination are obliged by them. The law has no reference to any particular denomination, but considers them all as having a right to make what contracts they please, with the minister they choose; and being of course bound by their own act, to fulfill their contract. A law designed to confirm the equal rights of all, is not subject to the exceptions or complaints of any party.” Thus wrote and published the learned and authentic Drl Williams, in 1794, and republished in 1807, (printed in 1809.)

This view has been currently held by the ■ profession and the courts in this state, as evinced in the cases in any way involving the subject, throughout our judicial history. See Sheldon v. Groodsel, 1 Aik. 225. In Dow v. Hinesburgh et al. 2 Aik. 18, Hutchinson, J., says: “There is no room for doubt that the object of the government, in granting a right of land to the first settled minister in said town, was to encourage a minister to settle and preach .the gospel among the people of such town, while the lands were uncultivated, and the inhabitants few in number, and unable to contribute largely for the pecuniary support of a minister. This must, of course, answer the double purpose of encouragement to the minister to settle among them, and assist the people to pay him. * * Such settlement vests the title in him ; and when once vested, would not be divested by any after separation, or the dissolving such connection.” Charleston v. Allen, 6 Vt. 633 ; Williams v. Goddard, 8 Vt. 492.

The purpose of appropriating those rights was prospective ; and, in respect to the right to the first settled minis'er, the time when the appropriation would become vested, was altogether uncertain and contingent. Such time would become fixed, and such vesting would be effectuated, by the fact of the first settling of a minister. Of course, it must have been in contemplation that such settling was to and would be lawful and authentic — such as would be practicable, according to the religious institutions and usages, and the laws of the state at the time it should take place. It cannot be supposed that it was in mind, in the making of the grant, that such settlement was to be only according to religious institutions and usages and the laws prevailing at the time of the grant, in case such settlement should not be made till the then existing and prevailing institutions, usages, and laws had been supplanted by others, and had become effete and ineffectual. Probably no thought was given to the matter. So far as any trust might seem to have been created in the inhabitants of the town, or island, in reference to the right of the first settled minister, it must be held to have been in subordination to the purpose of the appropriation, and to the rights of the person entitled to the land appropriated. In the expression, “ and be under the charge, direction, and disposal of the inhabitants of said island forever,” it could not have been intended that the word forever should be operative to defeat the personal right of the party in whom, when ho should answer the call as being the first settled minister, the grant was to become vested and accomplished in absolute right in fee. And this leads us to refer to and adopt the language of Judge Royce in Williams v. Goddard, supra: There is a diversity in these grants or reservations. In some charters the right is simply reserved for the first settled minister in the town. In others it is reserved for the first settled minister, to be disposed of for that purpose, as the inhabitants of the town shall direct. Thus far the land is evidently destined, upon a legal and sufficient settlement of a minister, to vest absolutely in such minister as private property.”

It is proper here to add, that in the charters granted by the state government, there is no uniformity in this respect. In some no minister right is reserved. In some it is to or for the first settled minister. In some it is for the use and support of the ministry. In some cases some provision is made for control and disposal by the inhabitants of the town. In some it is given in trust to the selectmen of the town. In some no provision at all is made in such respect. In one instance — Bclviderc—the provision is, “ Reserving the usual quantity of land for public uses reserved in other townships granted by the state.” It is plain that the granting of the charters was not the “ driving of a bargain” between parties. The reservations and appropriations were for general classes of purposes. The special details of provision, obviously, were not settled and adopted with sharpness of attention to the terms used, or with cautious consideration of the possible questions that the course of events thereafter, in the progress of population and’socieiy, might give rise to. The character and substance of the purposes are sufficiently manifested; and provisions for their being realized, substantially, are embodied. The specific administration in the particular cases, was generally left without minute provision, and is to be done in effectuation of the purposes, when it can be within the scope, and without violating such provision as is made, fixing the manner of such administration. But to return to the right in question, it is plain that when the property appropriated should become vested in fee, by absolute title, in the party designated, any prior trust relation of the town to the property would be at an end. In this case the expression is, as before quoted, “ and be under the charge, direction, and disposal of the inhabitants of the island forever.” Now, if the disposal contemplated by that provision is claimed to consist- in the participation “ of the inhabitants of the island ” in settling a minister, in what way are they to participate ? What constituted the “ Two Heroes ” as the township created by the charter — and obviously meant by the expression, “ of the island” — had the charge, direction, and disposal of the six rights reserved. When separated into two townships in 1788, in what way could “ the inhabitants of the island” act in the disposal of the first settled minister right ? Eor it is insisted in behalf of the defence, that the expression meant, inhabitants in corporate organization. And again, after the further division of the South Hero into two towns in 1798, in what way were “ the inhabitants of the island” to act in the disposal of the rights to the first settled minister. The case of Montpelier v. East Montpelier, 27 Vt. 704, would seem to intimate some difficulties in the way of reducing to practice the theory of corporate action, after such breaking up and distribution of the original body corporate.

Again, it would hardly seem practicable, or even plausible, to hold that the only way in which such disposal could bo made, consistently with .the terms of the charter, is by such action of the inhabitants of the original island town as was customary, accredited, and authentic at the time of the charter, in the settlement and support of a minister. If so, then the alteration of that mode by subsequent statutes, would thwart the vesting, and the purposes of the appropriation. And yet, in all the cases above cited involving the subject, the question and the decisive point has boon, whether the settlement of the claimant was valid and effectual, according to the laws in force, not when the charter was granted, but when the alleged settlement was made.

In Sheldon v. Groodsel, supra, it is said : “ There appears to have been no contract whatever between him and the people. Some stich contract of binding force according to existing laws, has always been deemed necessary. While the certificate act, as it was called, was in force, there must have been a society formed according to that act; and, in voting upon the subject of settling a minister, there must have been twenty-five legal voters in the affirmative, and two-thirds of those present must have voted in the affirmative, in order to make their proceedings valid. So, now, there should be some regular proceeding under the first section of the same act, which is still in force. Several decisions, many years since, have gone upon chis ground. Such a decision was made in the circuit court, in a dispute concerning the minister’s right in Springfield.” This case arose afier the statute of 1814, aud was decided in 1826. In Dow v. Hinesburgh et al., supra, “ The particular shape of this contract, and the manner of entering into it, in order to be thus binding, may depend on the laws that are in force when it is made.” In that case the settlement was not made according to the provision of the statute of 1787, which was the law then in force, and therefore the settlement was held to be not valid.

Without deciding whether, by the terms of the charter, the inhabitants of the island town had anything to do with the disposal of the right to the first settled minister, and whether such disposal is not restricted to tire other rights reserved in the charter, we do decide, upon the views above presented, with other concurring views which need not be expressed, that the participation of the inhabitants in the disposal contemplated by the provisions of the charter in that behalf, was to be such as should thereafter be provided for by the laws of the state under and by virtue of which a valid settlement of a minister was to be made. Our views and decision in this respect, find strong countenance in the consideration that it is not supposablo that it has been the pm pose or understanding of any of the legislation since the granting of the charter, to invalidate or render ineffectual that appropriation to the first settled minister ; and yet, this would effectually have been done, if a minister could be settled in compliance with the terms, and according to the intent, of the grant, only by the participation of the inhabitants of the town as chartered, acting in corporate capacity. It is plain that the practical legislative construction given to the appropriation to the first settled minister, has ever been the same as the uniform judicial construction. Such practical construction was evinced in the early as well as the later legislation affecting the subject, and particularly by the statute of 1787, and the statute of 1797.

It now remains to be considered, whether the plaintiff became settled according to the laws in force at the time of his alleged settlement. For the facts, we have to rely mainly on the report, and the documents referred to, giving such consideration to the comments and characterizations of counsel as to the. transactions thus shown, as they may seem to merit. The evidence by documents and concessions tends to show the facts to be as found by the referee. The oral evidence is not before us, but we assume that it was legitimate, and was properly considered and applied by the referee, thei'e being nothing in the case indicating the contrary. We adopt the fact as being established, that the plaintiff was authentically settled as a minister of the gospel over the Congregational church that was duly organized, upon a mutual agreement of the pastor and church and people, and such settlement was permanent in its character. The fewness of those who moved for the organization of the church, cannot render the proceeding futile. The lack of a church of the kind for so many years, and the fewness of those moving for one, would somewhat tend to evince both the need and the propriety of the measure. It is not suggested that any specific minimum is fixed by law, civil or ecclesiastic, or by usage, for,the number that may-legitimately move for, and become organized into, a valid church, over which a minister may have a valid settlement. The fact that such a church was’ organized by the customary co-operation of a council, upon the invitation shown by the record, indicates that the number moving the matter, and becoming organized into the church, was sufficient, according to the laws and usages of the Congregational denomination. It may have been the subject of regret that there were no more persons— church members — than the three who invited the council, qualified or disposed to participate in the call, and to become the beginnings of a church there by original membership ; but that there were no more, can hardly be regarded as good reason why the few should not exercise their right, and avail themselves of the privileges accorded by the polity of the church and denomination of which they wore members, of having a church in the place of their residence, and thus enable themselves to have sound doctrinal teaching, and enjoy the edification and ordinances of an approved gospel ministry and church, and at the same time affording to those around them the means of spiritual enlightenment and saving grace.' Our statutes do not discountenance this. They enable it to be done. Public policy — “ boni inores ” —does not forbid it. It is in fact serving the very purpose fot which the appropriation was made in the charter. The report shows that the agreement was for a permanent relation of pastor and people, such as has been held in the cases cited to bo essential to such a settlement as the charter contemplates. The plaintiff, then, had a valid settlement.

Upon wliat appears, we think that Mr. Eaton was not settled as a minister, by the proceedings vouched in that behalf. At the time he called the meeting named, he was neither a minister nor member of a church. In July, 1862, he surrendered his credentials as a minister, and thenceforth ceased to be a minister of that (the Methodist) church, or a member of that, or any other church. We have not been shown, nor do we know of any canon of human or divine law, by which a person who has been ordained, and has officiated as a minister, can be compelled to retain the sacred official character implied in the fact of ordination. In the ecclesiastical polity of American protestantism, a person, once ordained, may be silenced and disrobed, and be left as naked a worldling as if he had never been clothed with “ the livery of the court of Heaven.” Equally may he renounce and cast off the character and the robe, and become equally as naked a worldling. Mr. Eaton did it in this case. It is a little difficult to master, satisfactorily, the idea of a person being a minister of the gospel, who is not of any known sect or denomination of Christians; who has withdrawn himself from membership of the church to which he belonged; who has surrendered his credentials as a minister, and thenceforth ceased to be a member of that or any other church. After that withdrawal and surrender of credentials, how, or in virtue of what, did he continue to be a minister at all, in any recognized or appreciable sense, especially in the sense of the charter ? When he put up the notices, prompted by the motive found by the referee, for the meeting of November 15, he was not a minister at all, nor was he when the proceedings shown by the record were going on. When, and by what process, did ‘he become such, according to any known or tolerable idea on that subject ? Certainly the record does not answer, nor does the referee’s report.

Again, the referee does not find, nor do we find in the record, anything that would bind Mr. Eaton to remain for any time as a settled minister. In terms he is not so bound, for he did not put his name to any of the papers of the organization; nor is it shown that he took part in any of the meetings as a voter, lie called the first meeting, and presided at that and other meetings. If bound at all, it could only be by estoppel, and so bound only on the claim of the other party, or of those standing upon rights derived from that other party. The defendants are not such.

Finally, the object of Mr. Eaton in what he did in getting up the independent church, with himself as the pastor of it, as found by the referee, is conclusive against any right in him as the first settled minister. The accomplishment of such an object by such means, would be a fraud on the charter as to the matter of the appropriation in question, though it would hardly be entitled to the appellation of a “ pious fraud.” And this suggests to us to remark, that what was said, in the argument as to the holding of the land by the plaintiff being a fraud on the inhabitants of the town, seems to have proceeded on the idea that the inhabitants of the town corporation had some proprietary right in the land in question, under the charter, beyond that of naked trustee, and rather as trustee coupled with an interest, such as would entitle them as a corporation to dispose of it for the designated purpose. We think that the only interest that they had, aside from the naked trusteeship, awaiting the settlement of a minister, was moral, religious, and social, not directly pecuniary ; and this was not a corporate, but a several, personal interest of the inhabitants as members of the body social, and not of the body municipal. It was such an interest as all persons in the community have in any provision whose purpose is the moral, religious, and social improvement of such community The report is conclusive against the fact of fraud on the part of the plaintiff, and shows that his settlement was made in effectuation of the leading purpose of the grant. Judgment affirmed.