First Universalist Society v. Leach

Barrett, J. The plaintiffs seem to base their claim to charge the defendants with liability in this case upon the assumption, that their duty, in respect to the distribution of the money in question, was purely ministerial — in no part involving the exercise of judgment or discretion, as to the numbers of which the respective religious societies were composed at the time of the distribution to be made. The view, taken by the counsel for the plaintiffs, involves the idea, that the list of members, furnished by each society, is to be the basis of the distribution to be made, without any question, or inquiry to be made by the selectmen, as to the truthfulness of the lists, or the genuineness and Iona fides of the membership thus represented. If .this should be regarded as the correct view to be taken of the [113] subject it would seem difficult to avoid the result which the plaintiffs claim in this suit. But we find difficulty in adopting this view. It is to be remembered, that the statute, upon which the duties of the selectmen arise, in respect to this subject, does not prescribe, or intimate, what shall be the criterion, by which to determine the number of members of the respective societies, entitled to participate in the fund. It is true, that, in another chapter, provision is made for the corporate organization of such societies, in virtue of which, when duly organized, they may become possessed of certain powers, rights and privileges, both in reference to their members individually, and in reference to persons and parties outside of the corporation. But we know of no provision of statute, nor of any principle or rule of common law, by which, 'as to outside parties, against whom the society claims rights as a corporation, or aggregated association, depending on the number of its members, their records, and much less a copy of their schedule of members, is to be regarded as conclusive, and to constitute the unquestionable basis and measure of their right. We think that, while in cases like this, such records or sche-? dule are a proper mode and means of exhibiting the ground and measure of their claim, and entitled to be regarded by the selectmen as an important species of evidence of the number of the real members of the society, still they do not preclude further enquiry by them on this subject, nor shut out from their consideration other evidence, bearing on the question of the number of members actually, and in good faith, belonging to the society. If this be so, (and of it we have no doubt,) the position of the selectmen, in making the distribution of the fund in question, involves necessarily functions of a judicial character, so far as determining the number of members, really, and in good faith, belonging to the respective societies, that may be claiming to share in the fund, is concerned. In exercising such judicial functions in a given case, it would obviously be the duty of the selectman to act in good faith, and with reasonable diligence. When they should have done so, and in that [114] way determined, for the basis of the distribution, the number of the members of the several societies, there is no warrant of law or reason, for holding them liable for any error they might have committed in this respect, either on account of giving consideration to facts and circumstances that are not proper as evidence, or of disregarding facts and circumstances that are proper as evidence, and entitled to consideration and weight. No one controverts this principle, though there is often some doubt, and difficulty, and diversity of opinion, as to its application, in particular eases. Davis v. Strong, 31 Vt. 332, is a .clear assertion of the principle, and an illustration of the remark just made. It aleo is very much in point as an authority, by analogy, for the application we make of the principle in this case. The county court seems to have acted upon this view, in the trial of the'case, and in the charge to the jury. And we are unable to see ¿hat the court failed to give to the plaintiffs every advantage that the law entitled them to, upon the evidence, in reference to this branch of the case. But it is claimed that the selectmen failed of their duty, in proffering an order on the treasurer of the town. It is clear that after the number of the members has been determined, the further duty of the selectmen is essentially ministerial. The question is, whether, in the distribution of the money, it was proper for them, in the discharge of .their,duty, to proffer an order on the town treasurer. They are authorized to lease the lands, reserving rents, “which shall be annually paid into the treasury of the town.” The 5th section of the chapter on this subject, then provides, that these rents “ shall be appropriated, under the direction of the selectmen to the organized religious societies in each town *• *- * u jf there shall be more than one such society in any town, the same shall be divided between them in proportion to their several numbers.” It would seem, then, that the selectmen are not the deposita [115] ries, or custodians, of the rents, any more than of any other of the monies of the town. They are to he paid into, and kept by the treasurer of the town. The 5th section does not charge the selectmen with any duty of manual control, and division, and payment, of the money; but only with a direction of the appropriation of the money. It would seem, then, thaf, when they had determined • the amount to which each, or any given society, was entitled, and had announced it to the party entitled, by giving him an order on the treasury for the amount, they would have done not only all that could be required of them, but all that they had any authority to do. As to the shilling, due on the score of Hurlburt, we think, upon the evidence, the court put the ease properly to the jury ; and inasmuch as the selectmen proposed to advance the money from their own pockets in coin, the plaintiffs have no cause for complaining that they did not draw a new order for the full amount to which they were entitled. On the whole we are quite clear that the judgment should be affirmed.