
    Ezra Kendall versus the Inhabitants of Kingston.
    A public teacher, who has contracted to officiate to two societies in two several towns, cannot maintain an action for the taxes paid by his hearers for the support of public worship.
    The action was indebitatus assumpsit, for money had and received to the plaintiff’s use, and was tried on the general issue, [*525] pleaded and joined before the Chief Justice * at the sittings here after the last October term. A verdict was found for the defendants, agreeably to the directions of the judge, subject to the opinion of the Court on the following case agreed by the parties:
    “ The plaintiff, claiming to be a public Protestant teacher of piety, religion and morality, of a Baptist church and society within the limits of said Kingston, entitled to receive of the defendants the moneys assessed in the years 1805 and 1806, for the support of their Congregational public worship and public teacher, by their assessors, on the polls and estates of divers inhabitants of said town, who were claimed by the plaintiff to be members of the said Baptist church and society, usually attending on his instructions, and having directed the moneys so paid by them on said taxes, to be paid over to the plaintiff as their public teacher, has brought this action therefor.”
    “ In support of this claim, it was in evidence that there was, before and during said years 1805 and 1806, a Baptist church in said Kingston, formed according to the usages of Christians of the Baptist denomination, and a religious society of Baptists formed by voluntary association, but not incorporated by any act of the legislature ; — that the plaintiff was a Baptist, a member of that church, and had been previously ordained as an evangelist, according to the usages of the Baptist denomination; — that for the years afore-mentioned he had contracted with a Baptist society in Middlehorough, to preach to them half the time, and with the said Baptist church and society in Kingston, to preach to them the other half of the time ; — that he did in fact so preach those two years, in execution of said contract;— that being a single man, he was not a housekeeper, but when in Middlehorough lodged there in a private family; and when in Kingston lodged there also in a private family; — that when in each of these places respectively, he administered the ordinances of baptism and the Lord’s supper, * and performed all [*526] the parochial duties ; — that some of the persons, whose taxes were demanded by the plaintiff, were members of the said Baptist church, and attended on the instructions of the plaintiff, as their pastor and teacher ; — and that before the commencement of this action, the plaintiff had demanded the said moneys of the selectmen of said Kingston, but not of the treasurer.”
    “ The judge stopped the plaintiff from proceeding further in his evidence, it being his opinion that, from the above facts given in evidence, the plaintiff could not legally recover the assessments paid to the defendants by any of his hearers, inhabitants of Kingston; and he directed a general verdict for the defendants, that the questions of law might be settled by a full Court; and it was agreed that, if this direction was against law, the verdict should be set as'de, and a new trial granted.”
    The cause stood continued. nisi for argument, and at the last March term, in Boston,
    
    
      Bidwell, Attorney-General, for the plaintiff,
    cited and relied upon that part of the third article in the declaration of rights prefixed to the constitution of the commonwealth, which provides that “ All moneys paid, by the subject to the support of public worship, and of the public teachers aforesaid, shall, if he require it, be uniformly applied to the support of the public teacher or teachers of his own religious sect or denomination, provided there be any on whose instructions he attends ; otherwise it may be paid towards the support of the teacher, or teachers, of the parish or precinct in which the said moneys are raised.”
    The plaintiff’s case comes precisely within this provision. The money demanded in this action was paid by the subjects for the support of public worship, and of a public teacher of piety, religion and morality; and it was required, by those who paid it, to be applied to the support of the plaintiff, he being a public teacher of their [*527 ] *own religious sect or denomination, on whose instructions they in fact attended.
    The plaintiff was the settled, ordained minister of the Baptist church in Kingston, and he regularly preached and administered the Christian ordinances to that church, for the two years in which tne taxes now demanded were assessed. It is true that by his engagement he was to officiate to this church but half the time. But this cannot affect the rights of the plaintiff, or the privileges of his parishioners. They were unable to contribute more than one half of his maintenance, and the church in Middleborough did the rest. If the plaintiff is to fail on this point, it may be well to consider the effect on ministers who are settled as joint colleagues in a parish, in which case each contracts for but half of the year; as also the very common case in the country, where an Episcopal minister officiates to a small society, in two or more towns alternately. These cases are similar to that before the Court; yet it was never doubted that two colleagues in the ministerial office were each entitled to all the rights of a minister; and as to the ministers of the Episcopal church officiating in several societies, the taxes of their hearers have always, it is believed, been willingly paid over to them ; probably because they were thought to have a legal right to them.
    The demand in this case was properly made on the selectmen of the town, who are the representatives of the corporation, and their proper organ, without whose direction the treasurer can pay no money. But if the Court consider this not a sufficient demand upon the town, then it is contended, that no demand at all is required by the constitution, and therefore the averring one was mere surplusage, and the averment need not be proved.
    If it be objected, that an incorporation of a society is necessary in order to constitute its minister a public teacher within [ * 528 J the meaning of the declaration of rights, *it is answered that every church is for some purposes made a corporation by our laws, and is capable of receiving gifts and grants of real and personal property. But it is with more confidence insisted on, that this is not the true intent and meaning of this article. Religious societies are mentioned as distinct from parishes, &c., and must intend voluntary associations. And this is understood to have been the construction given by this Court in an action Crossman vs. The Second Parish in Beverly. The plaintiff there was the minister of four several unincorporated associations of Baptists, and officiated but one Sabbath in four to his hearers in Beverly; yet he recovered their taxes. If that case is not misunderstood, it is decisive of the two principal questions in the case at bar.
    
      
      B. Whitman, for the defendants
    contended that it was incumbent on the plaintiff to prove himself the minister of an incorporated religious society. The words “ religious society ” in the third article are either synonymous with “ towns, parishes, precincts, and other bodies politic ” which go before, or they are exegetical or explanatory of the kind of bodies politic intended, viz. such as were incorporated by law for religious purposes. Another construction would render the provision a mere nullity, and would be in effect breaking up all the regular parishes in the country. Unless it be such a so ciety as is compellable by law to maintain public worship, it is not such a society as the constitution contemplates, or as the law will notice.
    Neither is there any hardship in this construction. For the legislature never deny an incorporation to any applicants, of whom it can reasonably be expected that they are able and will be disposed to maintain public worship and a public teacher.
    As to the notion of every church being by law a corporation, this has never been extended beyond the capacity of receiving charities, and the exercise of authorities * merely ec- [ * 529 ] clesiastical, as ordaining a minister, receiving the ordinances, &c., but by no means as including any rights merely civil.
    But if this were such a society as was intended by the framers of the constitution, yet the plaintiff is certainly not such a public teacher. He is at most but half a public teacher, nor would the contract made with him by the society, to fulfil one half only of his ministerial office, excuse them from the fine imposed by the statute of 1799, c. 87. § 2., on religious societies neglecting to be constantly provided with a public Protestant teacher of piety, religion and morality. If half the year is sufficient, so may a quarter or a less portion of a year be sufficient. The mischiefs from such a construction would be extreme. And if a minister, so retained for any portion of a year, may take from the regular pastor of the parish his support, it will soon be seen that our regular parishes will be broken up for the benefit of disorganizing sectarians .
    But to a recovery in this action, a regular demand of the money should have been made and proved. It was no duty of the defendants to seek out the plaintiff. If he would entitle himself to money lawfully in their possession, he must at least ask for it. This demand ought certainly to have been made on the treasurer, who was the holder of the money. The selectmen had no control of it, nor could they legally draw a cent from the treasury, unless previously authorized by the town.
    
      
      Bidwell
    
    in reply. If an incorporation by the legislature be necessary to constitute a religious society within the meaning of the constitution, then we have at once an established religion, viz. that of the majority of our legislators for the time being, who may refuse their aid to any of a different persuasion from themselves. Yet the same constitution has declared, that “no subordina[*530] tian * of any one sect or denomination to another shall ever be established by law.”
    
    It is admitted, that only incorporated societies are liable to punishment for neglect of providing public teachers. But if the plaintiff is a minister of a sect or denomination different from the established church in Kingston, and the persons, whose taxes he demands, are of the same denomination with him, and attend on his instructions, he is entitled to the moneys they have paid for this object.
    The case of Washburn vs. West Springfield was very different from this. The plaintiff there was an itinerant, not regularly settled in any place, but claiming to be the minister of a whole circuit of indefinite extent.
    
      
      
        Washburn vs. The 4th Parish in W. Springfield, 1 Mass. R. 32.
    
   The Court took time for advisement, and at this term their opinion was delivered as follows by

Parsons, C. J.

The plaintiff, having proved the facts stated in the case, and on which he relied as giving him a title to recover, was proceeding to prove the amount of the taxes he demanded; when the defendants by their counsel insisted, that the plaintiff had wholly failed in proving that he had a right to recover any thing. And they objected, first, that it appeared that the Baptist society in Kingston was a mere voluntary association of individuals, not competent to act as a society, either in'the election or support of a public teacher. Secondly, that if this objection did not prevail, yet it appeared that the plaintiff was not the public teacher of this society, within the intent of the constitution, and to support this objection they cited the case of Washburn vs. West Springfield, which was also mentioned in the argument before the Court. And a third objection was made, that the plaintiff had not legally demanded the money, if he had a right to it.

My first impression was against the plaintiff’s right; but desiring time to consider the objections, and that the parties might [* 531 ] have the opinion of a full Court, I directed *a verdict for the defendants, upon the parties agreeing that if neither of the objections should prevail, a new trial should be granted. x

The first objection would desei ve much consideration, if it was necessary now to decide upon its effect. But as we tve satisfied that the second objection ought to prevail, we give no opinion as to the first.

It. appears that the plaintiff is a Baptist, ordained as an evangelist according to the usage of that denomination of Christians. He was not therefore ordained, or appointed to minister to any particular society, but was a teacher at large to any society of Baptists who might employ him ; that for the years in which he demands the ministerial taxes paid by his hearers in Kingston, he had in fact contracted with two Baptist societies, one in Middleborough, and the other in Kingston, to preach to them, half the time each ; and that he preached to those societies agreeably to his contract. Whether he preached to them on alternate Sabbaths, or in alternate months, or by any other division of the time, is not stated. On these facts he claims to be the public teacher of the society in Kingston for these two years, within the true intent of the constitution.

We are very well satisfied that these facts will not support his claim.

The constitution makes no difference between the different sects of Protestant Christians, but regards them all with an equal eye ; and the same principles must govern this case, as would be applied to it, if the inhabitants of Kingston were- a Baptist parish, and the society, of which the plaintiff claims to be the public teacher, were Congregationalists. The great object of the constitution is the providing for the support of public religious worship among all denominations of Protestants. The method in which this is attempted, is by imposing on all societies, competent thereto, an obligation to elect and support public teachers. The general * method [*532] by which this support could be obtained, it was well known, must be by annual taxes, for the yearly salary of the minister of the parish ; and that every assessment would be the proportion, which every man, on whom it should be made, would pay for the support of a public teacher for a year. When the constitution therefore authorizes the taxes, levied for his support, to be paid in certain cases to a public teacher, for whose maintenance it was not assessed, it would be preposterous to admit that it could be claimed by any man, w ho was not the public teacher of a society entitled to an annual support; because the tax, which he claims, is a contribution for the support of a public teacher for a year.

If the plaintiff could prevail here, he would receive from his hearers their contribution for the annual support of a minister, when he himself was a teacher for only half a year. After prevailing here, he might with equal propriety recover the annual, taxes paid by his hearers for the same year in Middleborough; and if, instead of contracting to divide his yearly instructions between two societies, ho contracted with twelve societies in as many towns, and preached to each every twelfth Sabbath, he might recover the annual taxes paid by his hearers in each society, for the same year. By this practice the intent of the constitution would in a great degree be defeated.

For it is manifest that the provision in the constitution was de signed to oblige all religious societies to be supplied with public teachers, not for a small part of the year, but generally through the year. And it would be a mischievous construction, that the members of any society within a parish might withdraw their annual contribution intended for the support of the parish minister, to supply themselves with teachers for half a .year, or perhaps for a month.

On this principle Washburn’s case, before referred to, was [ * 533 ] decided. There the plaintiff’s ordination was more * confined. He was not ordained an evangelist at large, but over the Pittsfield circuit, which, among other places, included the fourth parish in West Springfield. He had preached within the par- • ish to his society, from October to the ensuing June, then left it, and returned the following spring, and usually preached as often as one Sunday in a month. But his claim was rejected, as tending to subvert all the regular religious societies in the community.

The authority of this case, if it needed any support, is sanction ed by" the statute of 1799, c. 87. § 4. In that statute, the legisla turc prescribe the evidence to be produced to the selectmen, com mittee or assessors, by the party claiming to have his taxes paid to his own teacher.; and it is a certificate to be signed by the public teacher of the society, with a committee of the society chosen for that purpose. The public teacher must be one on whose instructions the party usually attends; by which words are excluded all teachers who instruct occasionally, or for a part of the year only, that society, and other societies the residue of the year ; for on the instructions of such he cannot usually attend.

Further, the public teacher of the society must intend one, who is devoted to that society generally as its teacher; and not one, who may be as much the teacher of half a dozen other societies, as of that, of which the party included in the certificate is a member. If this be not the intent of the legislature, then the plaintiff might have signed a certificate as public teacher of a society in Middle-borough, and might have certified that the Baptists in Middleborough and the Baptists in Kingston usually attended on his instructions, when perhaps they were never together at any Baptist assembly.

It is argued that the legislature cannot give a construction to the constitution, relative to private rights secured by it.

It is true that the legislature, in consequence of their construction of the constitution, cannot make laws repugnant*to it. [*534] But every department of government, invested with certain constitutional powers, must, in the first instance, but not exclusively, be the judge of its powers, or it could not act. And certainly the construction of the constitution by the legislature ought to have great weight, and not be overruled, unless manifestly erroneous. In the present case, we think this construction .is just and reasonable.

It was further objected, that the plaintiff had not demanded his money of the town treasurer, who alone could pay it, but had made his demand on the selectmen.

After having given our opinion as to the second objection, it is unnecessary to consider this, as it does not apply to the merits of the case. We would, however, mention that the statute last cited directs the party to exhibit his certificate to the selectmen, and the treasurer, on their order, to pay over the money to the public teacher. Regularly the teacher should demand his money of the treasurer, and if he refuses to pay, either through his own official neglect, or the official neglect of the selectmen to draw the order, the money must be considered in the treasurer’s hands for the use of the town, who must be answerable to the action of the public teacher.

This part of the statute has also been objected to, as requiring a mode of evidence not prescribed by the constitution. . Certainly the legislature may prescribe, and frequently have prescribed, rules of evidence, by which parties must support their acknowledged rights. If at any time evidence was required by law, which would defeat a constitutional right, the law would not be binding on the Courts. The evidence required by this statute is consistent with the plaintiff’s constitutional right, if he had any, and as the statute has no negative words, if this evidence cannot be obtained, without any negligence of the party needing it, by a well-known rule of law, the next best evidence may be admitted.

* After duly attending to this cause, and giving it the [ * 535 J best consideration we have been able to, we are satisfied that the plaintiff must fail in his action, as not being a public teacher authorized to sue for the ministerial taxes paid by his hearers, who are inhabitants of Kingston..

Judgment on the verdici.  