Opinion
March Term, 1865
George Miller, for the appellants.
William Wickham, for the respondents.
By the seventh section of the act for the incorporation of religious societies, it is provided, that no person shall be entitled to vote at any election held by any society incorporated under the act, after the first election, "until he shall have been a stated attendant on divine worship in the said congregation or society, at least one year before such election, and shall have contributed to the support of said church, congregation or society, according to the usages and customs thereof." Two things, it will be seen, must concur to qualify a person to become a voter at any such election; stated attendance on divine worship in the church, congregation, or society for the term of at least one year previous to the election, and contribution to the support of such church, congregation or society.
The first question to be determined is, what constitutes stated attendance on divine worship? It is obviously something more than mere attendance. It is attendance of a particular nature or character. The term stated is used to characterize the nature or kind of attendance which shall confer one part of the qualification or right. "Stated," as defined by Webster, is "settled, established, regular, occurring at regular times, not occasional; as stated hours of business." A stated attendant is one who attends statedly, which is defined to be "regularly at certain times, not occasionally." The distinction between an attendant of that character and one whose attendance is irregular, and at uncertain periods, or occasional only, is plain and well understood. Indeed it is too plain and obvious to be aided much by attempts at exact description or definition. Regular attendance, at the stated times for worship, as established in the church, or society or congregation, as distinguishable from irregular or occasional attendance, is what is necessary. This attendance must be personal, and cannot be supplied by another. The regular attendance of the wife, or other member of the family, will not answer. And no amount of contribution to the support of the church or society can be accepted in lieu of this personal presence statedly. It is plain enough that the persons whose votes were challenged and rejected at the election in question were not such attendants as the statute requires to constitute legal voters. For the year preceding the election, they had been, as clearly appears from the evidence, irregular and occasional attendants, at most. Most of them seem to have been regular contributors to the support of the society for many years, but not regular attendants on divine worship for the year preceding. They had one qualification, but not both, and their votes were properly rejected. It is unnecessary to determine in this case how often a person must attend at the stated periods for worship, in the course of the year, to be a stated attendant. It is enough to say, that persons who attend a few times only in the course of the year, as compared with the number of stated times for worship within such year, and at irregular and uncertain intervals, are clearly not stated attendants.
The next question is, in what manner a person must contribute to the support of such church or society, in order to be a qualified voter. He must contribute to its support according to the usages and customs thereof. This undoubtedly means substantial and vital aid and support. Personal attendance and countenance might in one sense contribute to the support of such an organization. But that is not the contribution intended by this provision of the statute. The statute means the necessary, material support, without which the organization cannot exercise its ordinary functions and perform its customary and appropriate duties and ministrations. It means the parting with, and contribution of, a portion of one's worldly substance, in the usual and customary way, to be used in meeting and defraying the expenses incurred by the church, congregation, or society in the support of public and divine worship. Merely attending as a worshipper, or taking a leading or a subordinate part, in the exercises, or rendering some special gratuitous service, will not answer this requirement of the statute. If the service rendered, however, is such as is usually and customarily hired and paid for by such organizations, and is by some understanding or agreement express or implied, rendered as an equivalent, or in lieu of a contribution in money or property, such service would undoubtedly be a contribution to the support of the church, society, or congregation within the sense and meaning of the statute. The test is, does the contribution, whatever it may be, go immediately and directly to the support of the public worship maintained by the church, congregation or society. In this view contributions made, not for the support and maintenance of the religious incorporation, but for the support or promotion of some other object or enterprise in which the church, congregation or society may be engaged, however valuable or praiseworthy, as Sunday schools, missions, and the like, will not be sufficient.
The obvious and sensible policy of the statute was to secure the government, and control of the temporalities of each of the religious incorporations formed under it, to such of its members or supporters as should manifest their attachment to its tenets and doctrines, and their interest in its success and usefulness by their habitual presence and countenance, and their habitual contributions to its support. It is quite plain, too, that upon no other principle or policy could these corporate bodies, depending as they all do upon mere voluntary contributions for their maintenance and support, be permanently kept up, their existence continued, and their usefulness maintained. According to these views, the General Term was right in holding that Philip W. Tuthill and Ira B. Moore were not legal voters, neither of them having, upon the undisputed evidence in the case, contributed to the support of that society for the previous year, according to any usage or custom thereof. But this being so, I do not understand upon what ground the judgment of the Special Term could have been reversed. Excluding their votes could not have changed the result. The result would not be affected, unless there were other illegal votes also received which should have been rejected. Whether there were others or not has not been determined, either by the Special or General Term. There appears to have been thirty-seven votes cast in all, and the defendants received twenty-one of these. So that rejecting these two votes the defendants will still have a clear majority, and were legally elected. It is not found, and does not appear that any other illegal votes were received. No fact is found in regard to the two votes, which were not passed upon by the judge who tried the cause, and we cannot say they were illegal. Rejecting, therefore, the two votes which were held to have been improperly received by the General Term, the incumbents have still a majority of presumptively legal votes. The election is not to be set aside and declared void, merely because two votes were received from persons not entitled to vote, if there was still a majority of legal votes for the ticket declared to be elected. I am of the opinion, therefore, that the judgment of the General Term should be reversed, and that of the Special Term affirmed.
WRIGHT, MULLIN and HOGEBOOM, JJ., were for reversal; INGRAHAM, J., was also for reversal, but solely on the ground that the two illegal votes made no difference in the result; DAVIES, J., and DENIO, Ch. J., were in favor of affirmance.
Judgment reversed.