This case has been elaborately argued by counsel, and numerous questions have been referred to the consideration of the court, some of which are not free from difficulty, and have required time for deliberation.
The action is assumpsit, to recover money alleged to have been paid by the plaintiff under protest, and by compulsion, to prevent his pews from being sold, for the non-payment of taxes thereon assessed.
The general question is, whether these taxes were legally assessed. The plaintiff’s counsel contend, that they were not, either in pursuance of any statute provision, or the bylaws of the defendant society. On the other hand, the defendants contend, that they were fully authorized to levy these taxes on the pews in their meeting-house, and that they were legally assessed, in conformity Avith the by-laws of the society. In January, 1823, the defendants were incorporated as a religious society in the city of Boston, with all the powers, privileges, and immunities to Avhich other religious societies in this commonAvealth are entitled by laiv. The society, being duly organized, proceeded, at a proprietors’ meeting, to appoint a committee to appraise the pews in the meeting-house and assess the same ; to cause all the pews to be offered for sale; but to sell no pew under the appraisal. This Avas accordingly done, and a report thereof was made by the committee to the proprietors.
Every pew in the meeting-house Avas appraised, and the proportion to be paid by the proprietor thereof, of all taxes to be levied for defraying the expenses of the society, was duly fixed and assessed. And afterwards deeds were given in the iollowing form. [Here the judge repeated the language of the deed on page 151.]
It appeared, at the trial, that all taxes from and after 1823 had been uniformly levied and paid, upon the basis of the original appraisal and assessment, without any new appraisal
In 1839, the plaintiff purchased his pews, and received his deeds in ‘the usual form, containing a condition which the plaintiff was to perform, or the pews, according to the express terms of the deed, would revert to the society, unless the condition was illegal. The plaintiff’s counsel contend, that the condition was illegal and void, on the ground that the society had no right, by their charter, to assess any tax in this form. The charter did not prescribe the mode of taxation and assessment, and the society had the right to prescribe any mode not prohibited by law. We do not think this depends upon any custom of the religious corporations of the city of Boston, to levy taxes in this manner; for, unquestionably, the pew-holders had a right to consent to such taxation ; and they all did consent, by receiving deeds expressly authorizing the taxes to defray the expenses of the society, to be assessed and levied upon their several pews. By the charter, the society were empowered to purchase, hold, and dispose, of any estate, real or personal, for their use, provided the annual income thereof should not exceed, at any time, the value of four thousand dollars. The society, therefore, had as good a right to convey the pews on condition of the payment of taxes, as they had to lease them for a certain rent.
But it was argued, that by the St. of 1786, c. 10, <§><§. 1, 2, taxes for the support of a minister, for building and repairing the house of public worship, and for sacred music, might be raised by any town, district, parish, precinct, or other body politic and religious society, in any legal meeting, which taxes are to be assessed upon all the ratable polls and property, within each particular corporation or society. But this statute does not prohibit the assessment of taxes on pews; on the contrary, there is an express proviso “that nothing shall-take from any society in Boston, or any other town, the right and liberty to support worship by a tax on pews, or other
Another objection to the right of the defendants to impose the condition in the deeds to the plaintiff is, that the change of the name of the corporation was unauthorized, as it changed the fundamental constitution of the society, and was void. “ If the change were valid,” it is said, “ the former society had no legal existence; and if it were void, the latter had no legal existence.” This objection has been elaborately argued, but it appears to the court to be entirely unfounded ; for, if the" Bulfinch Street Society had no title, they could convey none to the plaintiff; and he has no other title. And, furthermore, as he has had possession of his pews, and his title has never been disturbed or questioned, he is estopped to deny the right of the society to make the conveyance. If he has no title to the pews, he certainly cannot maintain this action. If the plaintiff held his pews under conveyances from the society, before the change of the name of the corporation, he would have the right, no doubt, to question the regularity and validity of the proceedings of the society in this respect. Whether the objections urged in such case would avail, is a question which is not raised by the facts reported in this case. It was argued, for the plaintiff, that by taking an assignment from some of the original proprietors, he succeeded to their rights. But this argument cannot be maintained, for he voluntarily relinquished that title, and took a new title from the society, after the change of their name.
Another objection to the condition of the deeds is, that a corporation has no power- to enforce a forfeiture, unless it is given by their charter. But, admitting this principle, it does not apply to the present case ; for all the proprietors of pews , assented to the condition by receiving their deeds. It is a part of the contract between the parties; and, besides, the breach of the condition is not a forfeiture in the nature of a
We are therefore clearly of opinion, that the society had the right to tax the pews; and this right, although not expressly given, is conferred by necessary implication. By the charter, the corporation were to have and enjoy all the privileges, powers, and immunities, to which other religious societies in this commonwealth are entitled by law.
The fallacy of the argument for the plaintiff on this point is, that it proceeds on the assumption, that no tax on pews can be valid, unless the power to levy taxes in that mode is given by statute. Whereas they have clearly the right to let or sell the pews, on the condition that the lessee or grantee shall pay a certain sum yearly, or to pay taxes if lawfully assessed. There is no principle of law by which such a condition can be held void. The act required to be done is neither malum in se, nor malum prohibitum, nor against the policy of the law.
The next question is, whether these taxes were lawfully assessed by a legal vote of the society, according to their by-laws.
The plaintiff’s counsel contend that they were not for several reasons.
In the first place, it is objected that the taxes were assessed by the standing committee, and not by the corporation. This is a mere formal objection. By the by-laws, article 3d, the standing committee are authorized to assess taxes on the pews according to their appraisal. If this by-law is valid, then the taxes were assessed by a legal vote of the society, It appears hy the report, that a committee of the society did appraise and assess the pews, as they were authorized to do, and did report their appraisal and assessment to the society, and that the society adopted the appraisal and assessment so made. This was undoubtedly intended as a permanenl
Again, it is objected that these taxes were not laid solely ■‘for the support of the minister, repairs of the house, and other necessary expenses,” and that if any part of the taxes were laid for any other purpose, they would be illegal. This, no doubt, would be a valid objection, if the fact were proved ; but there is no evidence to that effect, and the misapplication of the moneys raised by the taxes is not to be presumed.
Some other objections have been made to the proceedings of the committee, as not being conformable to the by-laws,
We are then brought to the consideration of the important question, whether these by-laws are valid. The plaintiff’s counsel insist that they are not; they being inconsistent with and repugnant to the provisions contained in the Rev. Sts. c. 20, with which provisions only the defendants were bound to comply. And, unquestionably, if these by-laws are repugnant to the law of the land, they are utterly void, and the taxes were illegally assessed. The question then is, whether the provisions of the Rev. Sts. c. 20 are to be so construed, as to extend to and regulate the proceedings of this and other religious societies, which have a right to assess taxes on the pews of the proprietors. By <§> 7, it is enacted, that “-the qualified voters of every parish and incorporated religious society, and of every religious society organized according to the provisions of this chapter, shall meet in the month of March or April annually, at such time and place as shall be appointed by their assessors, and shall choose a clerk, and two or more assessors, a treasurer, collector, who shall be sworn, and such other officers as they shall think necessary; all of whom shall continue in office for one year, and until others are chosen and qualified in their stead.” And by § 30, it is provided, “ that the assessors of every parish and religious society, in assessing taxes for the support of public worship and for other parish charges, shall assess the same upon all the property of all the members of such parish or society.”
From these sections, it is inferred, that no tax can be legally assessed but by sworn assessors; but by reference to other sections in the act it is obvious, we think, that no such inference was intended. For by §§ 31 and 32, it is expressly provided, that moneys for certain purposes may be assessed on pews. We think, therefore, that <§><§> 7 and 30 had reference only to <§. 28, which provides “ that the qualified voters of every parish or religious society may grant and vote such
There were then many such parishes and religious societies in the commonwealth ; so that it was not intended, that all taxes should be assessed on the polls and estates, in the manner directed in the other sections. The second section is still more comprehensive. That provides, that “ all parishes and religious societies, whether corporate or unincorporate, shall continue to have and enjoy their existing rights, privileges, and immunities, except so far as the same may be limited or modified by the provisions of this chapter, and the eleventh article of the amendments of the constitution.” It is true, that the defendants’ act of incorporation does not authorize them to assess taxes on pews, without the consent of the proprietors, as many other acts of incorporation do ; nor do they claim any such right. But they had the right to tax pews with the consent of all the proprietors, as I think has been
With regard to the notice of sale, it may be well doubted, whether, if it were defective, the plaintiff could avail himself of any exception to it in support of this action. It does not appear, that he made any objection to the notice before he paid the taxes; if he had, the defendants might have given a new notice. His objection was, we presume, to the legality of the taxes, for that was the main question in dispute. His objection was to the sale on any notice; and if the plaintiff had not paid the taxes, the defendants might have concluded to take him at his word, and leave him to try his title to the pews by an action. The pews were the defendants’ property, and if the plaintiff would not pay the taxes, and did not request a sale, they might continue to hold them, until they should be requested by the plaintiff to make a sale.
It is not, however, necessary to express an opinion on this point; for we can perceive no defect in the notice. It is conformable to the by-laws as altered in 1838, before the time when the plaintiff purchased his pews; and it is conformable also to the by-laws as afterwards altered in 1841.
In conclusion, taking into consideration all the questions and matters discussed by counsel, although some questions have not been particularly noticed, we are of opinion that this action cannot be maintained.
Exceptions overruled.