
    Edward Turner versus the Inhabitants of the Parish of Burlington.
    [f a minister demand money paid by one oí his parishioners, for the support ot public worship to a society of a different denomination, within a year after the money is-paid, it is within reasonable time. -
    Taxes on non-resident owners of land in a parish, who are of a different sect from such parish, are liable to the demand of the public teacher on whom suck owners attend.
    By the act of 1811, c. 6, the necessity of the certificate, prescribed in the statute of 1799, c. 87, is superseded
    
      Assumpsit for money had and received by the defendants lor the use of the plaintiff. The action was submitted to the Court upon the following statement of facts.
    “The plaintiff is, and since the month of September, 1811, has been, the public teacher of the incorporated Universal religious society in Charlestown. Samuel Skelton is a frequent and usual attendant on the plaintiff’s preaching, and was so prior.to the time of the assessment of the taxes hereafter mentioned, and has so continued to the present time. The said assessments were severally made after the months of May, in the years 1813, 1814 and 1815 The taxes of the two first years were collected on the 15th of March, 1817, of Skelton, on two warrants of distress, which issued in the preceding February. The tax of the *year 1815 [ * 209 ] was paid on the 28th of the same March to the parish collector of Burlington, after Skelton’s property had been advertised for sale. All the said taxes were assessed for the support of the religious society in Burlington, which is of a sect or denomination different from Skelton’s.”
    
    “ On the 27th of April, 1814, Skelton filed the following certificate with the town clerk of Charlestown, which then was and still is the place of his domicil, viz. “These certify whom it may concern, that Samuel Skelton, of the town of Charlestown, is a member of the religious society in said town of Charlestown, called Universalists. Dated this 27th day of April, 1814.—John Kettell” [and three others], “ committee of said society.” The said four persons were a majority of a committee, chosen by said society in March, 1814, “ to attend to the concerns of the society, affording protection to its rights and property.”
    “ After the said assessments, and before the collection of the taxes, Skelton left with the assessors of the parish of Burlington a certificate agreeable to the statute of 1799, c. 87, providing for the public worship of God; which certificate was signed by a committee chosen as that before mentioned. On the 15th of October, 1817, he requested two of the said assessors to pay over the several sums, so assessed and paid, to the plaintiff, as the public teacher on whom he frequently and usually attended ; and on the 27th of the same October, the plaintiff demanded the same of the treasurer of the said parish.”
    Judgment was to be rendered, as the opinion of the Court should be upon this statement, upon the default of the defendants or the nonsuit of the plaintiff.
    
      W. Austin, for the plaintiff.
    The action rests on the third article of the declaration of rights, 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 of his own religious [*210] sect or * denomination, provided there be any on whose instructions he attends.”
    The legislature, by statute 1799, c. 87, prescribed certain forms, as necessary to enable persons in the situation of the plaintiff, to enforce their-rights under the third article. Without examining whether that statute did or did not militate with the rights of the citizens under the constitution, it is enough to say that, by the statute of 1811, c. 6, those rights are fully protected; and all laws inconsistent with this last act are thereby repealed.
    
      Hoar, for the defendants.
    The chief object of the statute of 1811, was to put unincorporated religious associations on the same ground with parishes or other societies incorporated for religious purposes; and with this view it undertakes, in the first section, to make a construction of the third article. In the second section, those who are of a different sect from the parish, within whose limits they live, are exempted from taxation upon filing a prescribed certificate ; and by the fifth section all parts of acts inconsistent with that act are repealed. But the statue of 1799 is not repealed, so far as it prescribes the forms necessary to entitle the plaintiff to his action. If Skelton would have availed himself of the benefit of the statute of 1811, he should have procured his certificate in season to prevent his being assessed at all. In that case, no cause of action would exist for the plaintiff. To support the present action then, the plaintiff must bring himself within the statute of 1799. This he has attempted; but the. certificate made for that purpose is not such in substance or form as is required by that statute. To conform to that statute, the certificate must be signed by the public teacher, on whose instructions the party usually attends; and also by two other persons of the society, “ having been specially chosen a committee to sign said certificate.” The certificate in this '■ose was signed by a committee appointed to attend to the concerns of the society generally; and it was not signed by the public teacher.
    [ * 211 J *In the cases of Montague vs. The First Parish of Dedham, 
      , and Lovell vs. The Parish of By field 
      , it was determined that moneys paid must be demanded by the public teacher, within a year after the taxes are assessed. But in the case at bar, the demand was more than two years after the last of-the taxes was assessed.
    
      
       4 Mass. Rep. 269.
    
    
      
       7 Mass Rep 234
    
   Parker, C. J.

By judicial construction of the third article ol the declaration of rights, prefixed to the constitution of the commonwealth, it has been settled that when any citizen, living within the limits of a parish, has been taxed towards the support of the minister, if he attends upon the instructions of a minister of another denomination, the latter may recover the taxes paid by the citizen, from the treasury of the town or parish which receives it. And the statute of 1799, c. 87, contains express provisions to this effect.

It has been settled, however, in Montague vs. The First Parish in Dedham, that a demand must be made within a reasonable time; so that the parish thus receiving may not be embarrassed, after they have paid over the money to their minister; and one year from the assessment was held, in the same case, to be a reasonable time. But it was there suggested, that particular circumstances might exist, which would render it proper to prolong the time. In the present case, although the taxes were assessed more than a year before any demand was made by the plaintiff, yet the demand was made in less than a year after the payment of the taxes ; and it does not appear that any notice was given of the assessment until within a year before the demand was made; so that no objection lies to the recovery on that ground.

It certainly may be doubted, whether it was the intention of those who framed the constitution, or of the people who adopted it, to give a right to withdraw from the parish or town treasury, taxes which had been assessed upon real estate within the limits of those corporations, the owner living in some other town. But the words of * the article are too general to admit of any [ * 212 J restriction by construction. “ All moneys paid by the subject,” &c. will necessarily include that which is dérived from a tax upon non-residents’ property, as well as other taxes. We do not see but the plaintiff has brought himself within the constitutional rule, and that he must recover the money, which has been paid by his parishioner.

An objection was suggested in the argument, to the certificate filed by the person whose taxes are sued for, as not being in the form prescribed by the statute of 1799 ; and also that it does not appear that the committee, who signed the certificate, were chosen pursuant to that statute.

If the plaintiff’s right to recover rested altogether upon that statute, he would fail in his suit; for it-is not signed by the plaintiff, as teacher of the society to which Skelton belongs. But it must be remembered that the plaintiff’s claim is founded upon a right secured to him by the constitution ; and that, although the legislature have a right to prescribe the form of action, and the measures to be pursued, before the right of action shall accrue, they also have the power to repeal or alter those regulations, as to them shall appear expedient.

Now, by the statute of 1811, c. 6, the legislature have declared the right of ministers, circumstanced like the plaintiff, to recover; and have also enacted that any person, who shall become a member of any religious society, shall be altogether exempt from taxation in any other religious society, provided he file with the clerk of the town, in which he resides, a certificate in the form prescribed by the statute. Such a certificate was duly filed in this case : and we are all of opinion that the plaintiff’s right to recover the money demanded is fully maintained.

Defendants defaulted.  