Jones v. Cary

6 Me. 448 | Me. | 1830

Weston J.

delivered the opinion of the Court, at the ensuing July; terrain Wdldo.

The defendant objects to his liability in this action, because the parish clerk did not preside at the meeting, when he was chosen moderator. We do not find any thing in the law requiring this. The town clerk is to preside in the choice of moderator in town meetings j but there is no corresponding provision in the act concerning parishes, either directly, of by reference to the act regulating town meetings. The defendant, as chairman of the parish committee, opened the meéting, by reading the warrant, and called' for and received the votes for moderator. His standing in the parish, justified his thus taking the first step, in the organization of the meeting. And if any other member of the parish had called the meeting to order, and had received and declared the votes for moderator, we doubt not the election would have been lawful. The acquiescence of the members generally in this assumption on the part of an individual, is indicated by their.eubmission to his call, and proceeding to vote accordingly. We are all satified that this objection was properly overruled at the trial.

It sufficiently appears that the plaintiff had been a member of the first parish in Turner, and we find nothing in the case, by which his connexion with that parish was dissolved. He did not become a member of any other religious society, corporate or unincorporate, in the mode prescribed by the act of Massachusetts, respecting public worship and religious freedom, Stat. 1811, ch. 6, which was in force prior to the passage of the act of this State concerning parishes; nor in the mode prescribed by that act. Our statute provides that no person shall be compelled to join or be classed with any parish or religious society, without his or her consent; and the most perfect freedom in withdrawing from any such parish or religious society is given by the statute ; but the mode of withdrawing is expressly pointed out $ and it is a regulation which ought to be enforced ; otherwise the greatest uncertainty would exist, as to the persons who may be entitled to the rights, or subject to the liabilities of membership. The mode is easy, simple and definite. It is by leaving a written notice with the clerk of the society, from which the party is desirous of seceding. We are clearly of opinion, that it does not appear, from the facts reported, that the plaintiff became a member of any other religious society,'under the statute of Massachusetts of 1811, or that he has withdrawn himself from the first parish in Turner, under the statute of this State.

It has been instisted in argument, that the right of the plaintiff to vote, in point of qualification, depends on the statute of Masáachu-setts of 1786, eh. 10, and it is contended that it has not been repealed in this State. Without going into a consideration of this question, we deem it sufficient to remark, that it was not raised at the trial, nor has it been reserved by the judge, or brought before us by any exception taken by counsel. It is a point not open to the defendant upon the report of the judge.

Judgment on the verdiet.