An act incorporating a religious society provided, that "the pew-holders in the society should have power to assess a tax, not exceeding ten per cent. per annum, on all pews, for the needful repair and insurance of their house of worship, and for the purpose of raising such sum or sums of money, yearly, therefrom, as may be thought expedient, for the support of the pastor of the church and congregation, and for the payment of other incidental expenses to which the society may be subjected in maintaining and supporting religious worship regularly in said house," and an amendment to the act further provided, that any pew-holder might surrender the occupancy of his pew or pews to the society, by giving three months notice, in writing, to the treasurer, "after the expiration of which time, the owner shall be exempt from all assessments on said pew or pews for the support of the pastor, and the same may be occupied and used by the society, or by them let; provided, however, any owner or owners of such pew or pews may resume the occupancy of said pew or pews, and hold the same in the same manner, and under the same terms, and subject to the same liabilities as before said surrender, after three months written notice to the treasurer of said society of the intention to do so;" Held, that these clauses of the act of incorporation imposed no obligation upon the society to apply its income from property and from the rents of its reserved pews, first, to the payment of the expenses incident to its ownership of property, and the residue, if any, to the maintenance of public worship, exclusive of the pastor's salary, and to tax the surrendered pews only to supply the deficiency of the income to pay other expenses, leaving the pastor's salary, it might be, to be paid wholly from taxes to be assessed upon the unsurrendered pews, but that the application of their income was left wholly at the option of the society; the only restriction upon the power to assess surrendered pews, being, first, that, in common with other pews, they should not be assessed, yearly, beyond the ten per cent. upon their valuation; and, second, that they should not be assessed for the support of the pastor.
AMES, C.J.
It is quite probable that the award of the referees, respecting the matter of this exception, is more fitted to do particular justice between the parties to this controversy, than one made in accordance with the requirements of law. We are not at liberty, however, especially under the reservation in the rule in regard to questions of taxation, to adopt any other rule of decision than the general one set up by the law; and judged by this, the award of the referees, in regard to the July installment of the tax assessed in April, 1861, must certainly be wrong. If the tax was illegally assessed, it was no defence to the right of the pew-holder to recover back the whole of it, that, under similar circumstances, he had, without objection or complaint, paid a proportion of a like illegal assessment made in the previous year; and if the tax was assessed in accordance with the charter powers of the society, there is no good reason that he should recover back any portion of it. To adjudge that the assessment was illegal, but that, nevertheless, he should recover back one-third, and only one-third of it, because he had to that, or some other like extent, once submitted to a similar unjust exaction, may, possibly, be very good practical justice, but would hardly come up to any standard of right known to the law.
Was the assessment in question illegal and void, for the reason assigned by the referees, or, for any, apparent in their report? It seems to have been supposed by them, that it was so, under the fifth section of the act incorporating the society, as modified by the second section of the act amending it, upon the ground, that these sections require the society to apply all its income from property and from the rents of its reserved pews, first, to the payment of the expenses incident to its ownership of property, such as ground-rent, insurance, repairs, c., and the residue, if any, to the maintenance of public worship, exclusive of the pastor's salary; and to tax the surrendered pews only, to supply the deficiency of the income to pay other expenses, leaving the pastor's salary, in the case supposed by the referees, to be paid wholly from taxes assessed upon the unsurrendered pews.
Upon looking into the clauses of the charter referred to, it is obvious that they impose but two restrictions upon the right of the society to assess the surrendered pews: first, that common to all the pews, that they shall not be assessed beyond ten per cent. per annum; and, second, that they shall be exempt from all assessments for the support of a pastor. Every pew-holder holds his pew, with this protection only against the corporate power of the society to assess it for proper corporate expenses; and we look in vain into these clauses for any further protection to pew-holders, who occupy or who have temporarily surrendered their pews, from the power of the corporation to assess them; and still less, for any obligation upon the corporation to apply any income which it might derive from its property in the complex mode suggested by the referees. This might be all very well, under some circumstances, and certainly would be for the owners of surrendered pews, if the purpose merely was to give them the greatest possible benefit from their exemption from the pastor's salary. Cases may easily be supposed, however, in which, such an obligation to apply its income, coupled with the exemption, would deprive the society of the power to maintain, with decency, public worship, — in other words, of the power to carry out the principal purpose of its incorporation. Unless forbidden by the charter, we must construe its powers so as to make them equal, at least, to this; and certainly, not suppose restrictions upon the society with regard to the application of its income from property, not alluded to in the charter, which may disenable them from attaining it.
It may be quite possible, as suggested, that the motives of the majority of the society, in applying their income for the year 1861, may not have been the kindest towards their former pastor, in his character of a large holder of surrendered pews; but in ascertaining whether, in a particular instance, the society has exceeded its corporate powers to assess such pews, we have nothing to do with the motives which swayed this majority, so that their action was legal, any more than we have with the motives of their former pastor, during his controversy with the society, in possessing himself of so large a number of pews, which ultimately, for his protection from assessment, he saw fit to surrender. Fortunately, both are to be judged by us according to their legal, and not their moral merits; and conforming our judgment to this more limited field of duty, and not touching the other less important grounds upon which the allowance excepted to is disputed, we order it to be stricken from the amount awarded to Mr. Cooke, and in all other respects, confirm the report of the referees.