First Society of Waterbury v. Platt , 12 Conn. 181 ( 1837 )

Bissell, J.

The question in this case arises upon the sufficiency of the defendant’s plea in bar; and involves a construction of the contract set forth upon the record.

The notes in controversy grew out of a subscription to a permanent fund, for the support of the gospel ministry, in the first society in Waterbury, of which society the defendant’s intestate was a member. The following is among the articles of subscription : “ If any of the subscribers hereto shall remove without the local limits of said first society, before all the instal-ments become payable, those instalments, which, at the of such removal, shall not have become payable, shall not be collected of such person or persons so removing : provided also, that if such person or persons so removing, shall return within the limits of said society, within five years after such removal, the whole of their subscriptions shall be due and collectible.”

It appears, that before the instalments, for the recovery of which the present action is brought, became due, Gideon Platt, the intestate, preferred his petition to the General Assembly, praying, for the reasons therein stated, that he, and a certain portion of the farm on which he resided, might be annexed to the town and society of Middlebnry. This petition was granted ; and Platt became an inhabitant of the last-mentioned town and society ; although he still continued to live in the same place where he resided, when the contract was made. The only question, then, is, whether he removed without the local limits of the society of Waterhury, within the spirit and meaning of this contract.

It was hardly contended, in the argument, nor can it be claimed, that the facts here set forth constitute a removal within the letter of the stipulation. The terms here employed are very explicit. They are, “ shall remove without” — and “ return within'' the local limits of the society. Now, to remove, is, by the most approved lexicographers, defined — “ to change place in any manner” — “to go from one place to another” — “ to change the place of residence.” To return, is defined — “ to come or go back to the same place” — “ to revisit.” Can Platt, within any of these definitions, be said to have removed without the local limits of the society of Wa-terhury ?

It may further be remarked, that the popular import of these terms, is not less well defined, than the philological; and it is utterly subversive of both, to say, that a man can remove from, and return to a place, and yet never actually change his location. Several towns were lately taken from the county of Windham, and annexed to the counties of New-London and Tolland. Is it true, in any sense, that the inhabitants of these several towns have removed from the county of Windham ? And suppose a new act were to be passed re-annexing them j.jie iajjer C0Unfy • could it be said, that they had removed *^e counties of New-London and Tolland, and returned to the county of Windham ? Surely not, unless annexation and removal mean precisely the same thing.

It is, however, said, that this contract is to be construed, not according to the letter, but according to its spirit and meaning : that we are to ascertain, from the whole contract, what the parties intended, and then to give effect to that intention. All this is very true. But still the intention of the parties is to be ascertained, from the terms they have employed ; and when these are well-defined, and free from all ambiguity, we may not reject them, or put upon them a forced construction, in order to relieve a party from some supposed hardship. This would be, not to construe, but to make a contract, for the parties. We had supposed, that the rules of construction, as applicable to contracts, were, long since, well settled ; and that among these, one of the most familiar is, that words are to be received in their ordinary signification, unless, upon the whole contract, an intention is manifested to employ them in some other sense. -⅜

Now, is there any thing in the contract before us, indicative of such an intention ? Is there any thing, from which we are at liberty to infer, that when the parties speak of removing without the local limits of the society, they did not mean precisely what those terms import — an actual, physical removal 1 What was the great and leading object of the parties to this contract ? It undoubtedly was, to make a permanent provision for the support of the gospel ministry, in the society of which they were all members. This is apparent from the whole instrument. And it is equally apparent, that, in the opinion of its framers, it would be inconsistent with the object, to permit every subscriber to avoid the payment of his subscription, by merely uniting himself to another society, either of a different, or of the same denomination. Had such been their intention —had it been their meaning, that any subscriber might discharge himself from his obligation, by ceasing, in any manner, to be a member of the society, the}" doubtless would have said so. They have said no such thing — and it seems to a majority of the court, that we cannot say, that such was their meaning, without doing violence to the language of the contract.

It was, indeed, distinctly conceded, in the argument, had the intestate united himself to a society of a different denomination, the obligation of this contract would not thereby have been discharged. And why not ? Clearly, because that would not have been a removal, within the meaning of the contract. Suppose, then, that he had united himself to a society of the same denomination: that he had (as after the adoption of the constitution he might have done) enrolled himself as a member of the society in Middlebury : would that have been a removal without the local limits of the society of Waterbury ? And would his contract thereby have been discharged? It is not easy to see any ground of distinction between the two cases; and why in the one, the contract should be discharged, and in the other, not; or how he can be said to have removed, in the one case, and not, in the other. But the intestate, instead of enrolling himself in, has caused himself to be annexed to, another society. Does this vary the case? It is contended that it does — and it is said, that, by a sovereign act of the legislature, the intestate was taken out of, removed from, the local limits of the society of Waterbury. It is true, that by a resolve of the legislature, the territory on which he lived, was annexed to the town and society of Middlebury — and this is all: it was a simple act of annexation. But annexation, we have said, is not removal. And in order to sustain the position of the defendant’s counsel, language must be perverted both from its grammatical and its popular signification. How then, can it be said, that Platt removed without the local limits of the society, within either the letter or the spirit of the contract ?

Besides, it should be borne in mind, that the resolve of the General Assembly was not in invitum. It was not an act transferring the intestate from one society to another, without his agency and against his wishes : on the contrary, it was upon his petition. He procured the act to be done. And does it, can it, make any difference, in point of principle, whether he procure himself to be annexed to another society, by the intervention of the legislature, or whether he enrol himself in such society, by his own act ? He is equally a volunteer, in both cases ; and it is very difficult for us to see why, he may shake off his contract, in the one case, and not in the other. jn gjjjjgj. cage^ pe ceases t0 be a member of the society of Waterbury ; and in either case, he voluntarily assumes new duties towards, and is subjected to new burthens from, another corporation. And all this would have been equally true, had he united himself to a society of a different denomination.

Again ; it has been said, that the intent of the parties evidently was, that the inhabitants of the society should contribute to the support of the gospel ministry ; and that, upon any one ceasing to be an inhabitant, the contract, as to him, should cease to be obligatory. This distinction between an inhabitant, and a member of the society, if it exist at all, must be found in some part of the contract. And this brings us back again to the enquiry — what do the parties mean, when they speak of a removal without the local limits of the society ? Did they speak of those limits, as they then were, or in reference to some contemplated change in those limits ? Can there exist a doubt on this subject? It has already been stated, that the great object of the parties to this contract, was, to provide for the permanent support of the gospel ministry, in the society of which they were all members ; and that this design would have been frustrated, had every subscriber been at liberty to avoid his subscription, by withdrawing from that, and uniting with another society. The contract, therefore, did not allow this. But if, in consequence of a removal to another place, a member could not conveniently enjoy the ministry in that society, it was reasonable, and not incompatible with the design of the parties, that he should be exempted.

Such, as it appears to us, is the sound and reasonable construction of this contract. It was not, as we think, the intention of the parties to exempt any one, so long as his location, his place of residence, remained unaltered : that when they speak of a removal, they mean that, and nothing else: and that when they speak of the local limits of the society, they speak of those limits as then existing and known, and not in reference to any possible or supposed change. There is not the slightest evidence growing out of this contract, to shew, that any such change was in their contemplation. Suppose the legislature had, by a sovereign act, as the constitution has since virtually done, broken up the local limits of all ecclesiastical societies; could it have been contended, that every party to this contract was thereby discharged from his obligation ? That every one had removed without the local limits of the society, within the spirit and meaning of this contract ? We think not; and yet we are unable to see why this consequence would not follow, upon the construction claimed by the defendant’s counsel. We do not doubt the power of the legislature to change the local limits of an ecclesiastical society. Nor do we deny, that the power has been properly exercised, in the case before us. But the legislature has no power to impair the obligation of a contract. — Nor has it attempted so to do, in the present case. The contract remains precisely what it was, when entered into, by the parties. If it was entered into, by them, in view of any such action of the legislature, and with the understanding that it would cease to be obligatory upon any party, by a change of the local limits of the society; the construction that has been put upon it, is undoubtedly right, and the decision of the superior court ought to be affirmed. But it seems to a majority of the court, that such an understanding will be sought for in vain, in the terms of the contract ; and we are not permitted to look beyond that, nor to indulge in any speculations as to what might be just and equitable between the parties.

For these reasons, we are of opinion that the judgment of the superior court must be reversed.

Williams, Ch. J. concurred in this opinion.

Chukch, J.

Several questions have been raised on this argument, which I have no occasion particularly to discuss, because I do not understand that any essential difference of opinion exists in the court concerning them.

1. It was urged, that the resolve of the General Assembly, transferring the deceased Gideon Platt from the first society of Waterbury, to the ecclesiastical society of Middlebury, was void, because the petition of Platt to the General Assembly, for that purpose, had never been served upon Waterbury society. To this objection, I think, there are several answers.

In the first place, the statute requiring petitions to the General Assembly to be served upon all persons concerned, is only directory of the practice of that body, and may, at its pleasure, be dispensed with ; and it was dispensed with, in this case; the resolve declaring its own effect — “ any law to the contrary notwithstanding.”

Secondly, ecclesiastical located societies in this state, have always been considered and treated as public corporations, as much so as towns or school societies. All laws, therefore, creating or establishing them, may be enacted, without any petition or preliminary action on the part of any body. The petition in the present case, therefore, was wholly unnecessary; and therefore, no service of it was necessary to render the law effective.

Thirdly, it was said, that this resolve operated as a fraud, or may have so operated, upon the ecclesiastical society of Waterbury, because they had not, by a service of the petition, any opportunity to appear and defend before the legislature.

That there was no fraud in fact, is certain ; because the petition was served upon the town of Waterbury, and thus effectually, although not in form, served upon every individual constituting the society. But as it is not, and cannot be, pretended, that the act in question is unconstitutional; even if I supposed it to have been procured, by a fraud upon the legislature, I should not know where to find any power in this court to disregard the law on that account. The court has never been constituted the guardian of the legislature. In England, the King’s letters patent may, if procured illegally, or by fraud, be set aside, by his chancellor ; but it is not known, that an act of Parliament was ever disregarded, by the courts of the realm, for that cause. And in the constitutional governments of this country, a power of controul over constitutional laws has never been, and never ought to be, conferred upon the courts. Fletcher v. Peck, 6 Crunch, 87.

2. But the question, upon which we essentially differ in opinion, is, whether Gideon Platt, the deceased, removed without the local limits of the first ecclesiastical society of Waterbury, within the spirit and reasonable intent of the condition annexed to the articles of subscription, which he signed ? And that he did so remove appears to me quite obvious. That he was a member and an inhabitant of the first ecclesiastical located society of Waterbury, is certain; and that he has since become a member of a distinct and different located ecclesiastical society, is just as true. His duties, his privileges, his person and estate have all been transferred from one society to another. Why, then, has he not removed ? The answer in effect is, that because he has not been removed, by some locomotive power, he has not removed at all. And the reply is, that removal or a transfer, effected by the power of the law, is as effectual, both in spirit and effect, as a removal which would have placed him in any other part of the state. Qui haeret in litera, haeret in cortice.

The farm of Gideon Platt constitutes a part of the territorial limits of the ecclesiastical society of Middlebury. If any other one of these subscribers were to fix his residence there, he would be exonerated from this obligation ; and yet, it is contended, that Gideon Platt residing on the same farm, and perhaps in the same dwelling, is not so exonerated. To such inconsistencies does the claim of the plaintiffs bring us.

If the parties to this arrangement did not have in actual contemplation such a state of facts as we see here, 1 am confident, that it is in entire consistency with their purpose and intent. Did they intend, that any one of their number, whose duties to the society of Waterbury should cease, and whose privileges there could be no longer enjoyed, but whose duties and privileges should both be transferred and confined to another located society of the same denomination of Christians, should still continue responsible to the located society, with which they should be no longer connected ? I think not. It would have been unjust; and it cannot be presumed. And for this reason, the case of a removal was provided for ; as in that way only, as the law of the state then stood, could a person, while he retained his belief in the doctrines, discipline and worship of the located society of which he -was a member, ever become discharged from his obligations to support such society. And I see nothing in the conditions of this subscription to induce me to suppose, that the parties to it were intentionally making any provision for dissenters. And here I will add, that if Gideon Platt did not remove, or was not removed, to the located society of Middlebury, he still continued liable to be taxed for the support of the gospel in Waterbury.

It was said in argument, that the parties had reference to the local limits of the society, as they then existed, without regard to what they might be at a future time. I know not why this was said. It is very certain, that the whole arrangement had reference to future time, and provided for future contingencies. And it seems to me quite too much to say, if ky an ac(. 0f tp,e legislature, as was very common at that day, first ecclesiastical society of Waterbury had been divided, so as therefrom to constitute two societies, that these subscribers could have been compelled to pay taxes in one, and this subscription in another society.

An argument more insisted upon than any other, in favour of what seems to me a very unjust claim on the part of these plaintiffs, was, that this act of the General Assembly was procured by Gideon Platt himself, and was enacted for his accommodation and upon his petition. If this proves any thing, it is nothing more, than that the removal of Gideon Platt from the society of Waterbury, was voluntary. And this is true. Did the parties intend, that no other removal than an involuntary or compulsory one should discharge the liability? I am sure it will not be claimed. The reasons for the removal were sufficient, in the opinion of the only tribunal which had a right to investigate them. Perhaps, by the discontinuance of some road or bridge, the communication between the petitioner and the place of public worship in the first ecclesiastical society of Waterbury, was entirely cut off. I have already said, and I think correctly, that no petition to the General Assembly was necessary for its action in this case. The resolve of the Assembly was constitutional; and whether it was enacted, by reason of the formal presentation and proof of a petition, by Platt, or by some other person against his consent, or by reason of any other influence operating upon the legislature, can make no difference, either in the construction of the act itself, or in its effect upon the corporations whose limits it affected.

In this opinion Waite, J. concurred. Huntington, J. not having been present, when the case was argued, gave no opinion.

Judgment reversed.