
    Jonathan Gage versus Solomon H. Currier et al.
    
    Where the assessors of a religious society assess a tax on a person who is not a mem» her, they are liable to an action of trespass ; for they do not come within the provision in St. 1823, c, 138, § 5, that in certain cases they shall be responsible only for their own integrity and fidelity.
    In the case of a person separating from one religious society and joining another, filing with the clerk of the society left a certificate of the fact, under the hand of the clerk of the society which he elects to join, is conclusive evidence of his having ceased to be a member of the former society.
    A limited privilege granted by a special statute to a few individuals, is merged in a more enlarged privilege secured to all the inhabitants of the commonwealth by a subsequent general statute.
    Thus a special statute providing that the inhabitants of a particular town may sepa • rate from a religious society by the performance of certain conditions, is repugnant to and repealed by a statute giving such power to all the inhabitants of the commonwealth upon the performance of only part of those conditions ; —or if the two statutes, though dissimilar, may yet stand together, it is sufficient for a person to bring himself within the provisions of either.
    This was trespass against the defendants as assessors of the Fourth Religious Society in Newburyport, for illegally assessing a tax upon his pew, and also upon his poll and estate, he not being, at the time of voting, or of assessing the tax, a member of that society. The defendants pleaded the general issue, and a special plea of justification averring that the plaintiff, at the time when the tax was voted and when it was assessed, was a member. The plaintiff replied, traversing this fact ; upon which issue was joined.
    Upon the trial in the Court of Common Pleas, before Howe J., the defendants contended that no action could be supported against them, unless it were shown that they had not conducted themselves with integrity and fidelity ; but the iudge instructed the jury, that if the plaintiff was not at the time when the tax was voted and assessed, a member of the Fourth Religious Society, the action would well lie, notwithstanding the St. 1823, c. 138, § 5.
    The plaintiff then, to prove that on the 1st of May, 1824, his relation to the Fourth Religious Society had ceased, produced in evidence a notice, directed to the clerk of that society, that he did not consider himself any longer a member thereof; on which was indorsed a certificate of the clerk of me Second Presbyterian Society in Newburyport, that the plaintiff had become a member of this last mentioned society. This notice, with the indorsement thereon, was delivered to the clerk of the Fourth Religious Society on the 30th of April, 1824. The tax upon the plaintiff was voted on the 28th of April, 1825, and assessed in June following.
    Nov. 9th.
    
    The defendants then offered to prove, that except for a few Sundays immediately after the filing of the notice, the plaintiff had generally attended public worship with the Fourtn Religious Society, for the purpose of showing that he was still a member of that society, notwithstanding the notice and certificate filed by him ; but the judge rejected the evidence, and directed a verdict for the plaintiff.
    To these opinions the defendants excepted.
    
      Cummins and Gerrish, in support of the exceptions,
    referred to St. 1793, c. 44, in the 10th section of which it is provided, that the inhabitants of Newburyport shall be exempted from paying taxes either for their polls or estates lying within the town, for the “ support of public worship in any other place or society therein, than that wherein they usually attend public worship. And every person who at the time of the passing of this act usually attends public worship in either of said societies, shall be deemed a member of the same so long as he shall so attend ; and any such person intending to leave such society shall give notice to the clerk thereof in writing ; which notice shall be recorded in the society’s book of records ; upon the doing whereof, and upon his leaving such society, he shall, from and after the last day of April then next ensuing, be exempt from taxation therein for his poll and estate, until he shall return and become a member again.” This statute is to govern in the present case. If the plaintiff ever left the Fourth Religious Society, he again became a member by attending public worship with the society. The statute of 1823, c. 106, has no operation within the town of Newburyport. By the 3d section, the assessors of every parish or religious society are to assess all the property, both real and personal, of all the members thereof, wherever the same may be situate within this commonwealth, and no member of any religious society in this commonwealth is to be assessed for any parocfcial charges, to any parish or religious society, other than to that of which he is a member. According to this provision, the society worshipping in any meetinghouse can assess no tax on the pew of a person who is not a member of the society, and if it is to be of universal application, it will cause great inconvenience and confusion, not only in Newburyport, but throughout the commonwealth, as many taxes must then have been illegally assessed. That it was not intended to apply universally, may be inferred from the fact, that the legislature have since passed special acts inconsistent with it; and further, it is not to be presumed that the legislature would repeal the statute of 1793, which is a sort of charter, without notice to the religious societies in Newburyport.
    
      May term 1827.
    They insisted also that the action should have been brougnt against the Fourth Religious Society, and not against the assessors.
    
      Cushing, for the plaintiff,
    contended that the statute of 1823, c. 106, conferred on all the inhabitants of the commonwealth a greater privilege, in regard to leaving one religious society and joining another, than was granted to the inhabitants of Newburyport by the statute of 1793, and so far this statute was controlled by that of 1823. Whether the mode of assessing taxes must in all cases conform to the statute of 1823, is a more doubtful question, and not now before the Court. On the construction of statutes he referred to Titcomb v. Union M. & F. Ins. Co. 8 Mass. R. 326; Pease v. Whitney, 5 Mass. R. 382; Langdon v. Potter, 3 Mass. R. 221. If the plaintiff was not a member of the Fourth Religious Society, then clearly the Si. 1823, c. 138, § 5, is inapplicable to this case, and the defendants are therefore liable in trespass. 5 Mass. R. 427 ; 13 Mass. R. 272.
   The opinion of the Court was drawn up by

Wilde J.

This is an action of trespass founded on the supposed illegal assessment of a parish tax made by the defendants, they being assessors of the Fourth Religious Society in Newburyport.

The plaintiff, to support his action, must maintain two propositions : — first, that the assessment against him was ille gal; and secondly, that the defendants are liable in trespass f°r this illegal assessment.

The first proposition will be found to depend on the con struction to be given to the St. 1823, c. 106, by the 2d sec tian of which it is enacted, that “ any person may separate from one religious society and join another, either of the same, or of a different denomination, by filing with the clerk of the society left, a certificate of the fact, under the hand of the clerk of the society, which such person elects to join.” It appears, by the exceptions, that previous to the grant and assessment of the tax complained of, the plaintiff had filed with the clerk of the Fourth Religious Society, of Which he had before been a member, a certificate, under the hand of the clerk of the Second Presbyterian Society, certifying the fact that the plaintiff had joined himself to the latter society. No objection has been made to the form of the certificate, but the defendant’s counsel contend that the filing of the certificate is not alone sufficient to transfer the membership or relation from one religious society to another; and at the trial in the court below, they offered to prove that, except for a few Sundays after the filing of the certificate, the plaintiff had generally attended public worship with the Fourth Religious Society, and not with the Second Presbyterian Society. This evidence was rejected by the court, as irrelevant; the court being of opinion, that, by filing- the certificate pursuant to the statute, the plaintiff ipso facto became a member of the Second Presbyterian Society; and that his attending public worship afterwards in the Fourth Religious Society could not re-transfer his relation to that society, without the filing of a new certificate. And we all concur in this opinion. The language of the statute is clear and unambiguous, and when such is the language of a statute, we are bound to read it according to its obvious and usual signification, whatever may be our opinion of the expediency of the law. If we should give it a strained construction, even from motives of public policy, and for the advancement of apparent justice in a particular case, we should be justly chargeable with usurpa-, tian of power, and a violation of the constitution we are sworn to support.

In the present case the statute expressly provides, that any jwsrson may separate from one religious society and join another by filing a certificate &c. This is made conclusive evidence of membership ; which is not made to depend upon attendance on public worship, in one society or another. To constitute one a member of a religious society, and to render him liable to taxation, it is not necessary that he should attend public worship with the religious society of which he is a member ; nor can he become a member by attending public worship in any religious society, under the act of 1823. In the section already cited it is further provided, “that any person who may come to dwell within any town in this commonwealth, shall be deemed and taken to be a member of the oldest religious society in said town, unless such persons shall, previous to the first day of May following, file with the clerk of such religious society, a certificate, that he or she has joined him or herself to, and is a member of some other religious society within the commonwealth, under the hand of the clerk thereof.” He is not to be deemed a member of the religious society where he may usually attend public worship, but is to belong to the oldest religious society, unless he files a certificate pursuant to the statute. We think, therefore, that the least attention to the language of the statute will render it quite obvious, that the liability of any one to be taxed in a religious society or parish is not to be tested by his attendance or non-attendance upon public worship. Immediately after filing his certificate, the plaintiff was clearly liable to be taxed in the presbyterian society ; he was therefore a member of that society, and was no more liable to be taxed by the other society by reason of his attending public worship there afterwards, than would any other member of the presbyterian society be, who might thus attend.

But the defendants’ counsel rely also upon the St. 1793, c. 44, which provides that the inhabitants of Newburyport shall be exempted from taxation, for the support of public worship, “ in any other place or society therein, than that wherein they usually attend public worship.”' There is Iike-w*se a provision as to the manner by which a member of one religious society may leave it and join another, respecting the construction of which some doubts have been suggested, which, however, we do not think it necessary to consider; because, so far as this statute differs from the statute of 1823, it must be considered as virtually repealed. It makes no difference in the controlling operation of the latter, that the one is a general and the other a special statute. If the provisions in the two statutes are repugnant, as they unquestionably are, both cannot stand together. This case, therefore, most clearly depends on the construction of the general statute.

By this statute nothing more is required, for the purpose of changing one’s parochial relations, than the filing of a certain certificate; and if this is sufficient, then clearly a provision which requires other and further conditions to be performed for the same purpose, must be held repugnant. And such is the provision relied on by the defendants’ counsel. We have, therefore, no difficulty in deciding that it was abrogated by the statute of 1823, if not by that of 1811, c. 6. The limited privilege secured to the inhabitants of Newburyport by the special statute, was merged in the more- enlarged privilege granted by the latter acts.

But if it were otherwise ; if these provisions were dissimilar but not repugnant, and might stand together, still the plaintiff had the right to pursue the provision of either statute. As if by one statute jurisdiction of a matter be given to one court, and afterwards by a new statute the same matter is made cognizable by another court, both courts shall have a concurrent jurisdiction ; and a party may elect to appeal to either tribunal for redress. So when different remedies are provided for the same injury, a party may elect that which he thinks most beneficial. It would not, therefore, avail the defendants, to show that there is nothing repugnant in the two statutes, since it is manifest that the plaintiff has strictly and fully complied with the provisions of the latter statute.

The remaining inquiry is, whether the defendants are liable in trespass for an illegal assessment. It is clear that they are, nnless they can bring themselves within the statute of 1823, c. 138. And we think it equally clear that they cannot, by any reasonable construction, be brought within the provisions of this statute. Whether assessors are still responsible for their own unintentional errors and mistakes when they assess a tax on the inhabitants or members of any town, district, parish, or religious society, being thereto required by the constituted authorities thereof, may be a question of difficult solution. But it does not arise in this case ; for it does not appear that the assessors were required or directed to assess the tax on the plaintiff, and it does appear that he was not, at the time of the assessment, a member of the Fourth Religious Society ; so that the case is not within the words or meaning of the statute. 
      
       See Sumner v. First Parish in Dorchester, ante, 363, n. 1; Reviseo Stat e. 20, § 4.
     
      
       See Withington v. Eveleth, 7 Pick. 106; Inglee v. Bosworth, 5 Pick. 498; Sumner v. First Parish in Dorchester, ante, 365, n. 1.
     