The Clergyman's Hand-book of Law Part 2

*57.* _Management, Disability._-An unincorporated society is managed by those who are competent to transact their own business. Therefore, it would seem that members must be men over twenty-one years of age, and not under legal disability. The minor sons in a family who have continued their attendance at the religious services until of full age, are considered members.(100)

*58.* _Shakers, Sect, Catholic Church, Trustees, Funds._-Although the sect called Shakers is not incorporated, yet it has been allowed to take and hold property for church purposes.(101) In Ma.s.sachusetts, by statute, a sect may take and hold property for religious purposes without incorporation.(102) The Roman Catholic Church is a recognized public corporation by most nations, including the United States.(103) No individual member of any such body has any t.i.tle to the lands it holds, but the lands are the property of the society in its aggregate capacity.(104) After property has been acquired, the trustees have no right to distribute it among the members, as such power could not be conferred upon them by a majority vote even when approved by an order of the court. The contributors did not intend their funds to be so disposed of, and if they failed to attain the use intended, they must be returned to the donors, and if not called for, would escheat to the state.(105) Where an unincorporated society has purchased property and taken the t.i.tle thereto in the name of one of its members, when it subsequently incorporates such member may be required to execute a conveyance to the corporation.(106)

*59.* _Contract, Binding._-Persons forming a religious society may make a contract for the support of its minister by a majority vote.(107) When such unincorporated society by a majority vote enters into a contract or compromises a suit, it is binding upon the minority.(108)

*60.* _Court, Trust._-Any member of an unincorporated society may go into a court of equity on behalf of himself and others to enforce the execution of a trust in favor of the society.(109)

*61.* _Societies, Membership, Forfeiture._-Voluntary religious societies when not restricted by their charters or articles of a.s.sociation, may make by-laws declaring what shall const.i.tute membership and what shall operate as a forfeiture thereof, applicable to existing as well as to future members. Where money is voted to be raised by an a.s.sessment to be made at a subsequent period, a person who was a member of the religious society at the time that such vote was pa.s.sed, but withdraws before the time of a.s.sessment, is not liable to taxation.(110)

CHAPTER VI. INCORPORATED RELIGIOUS SOCIETIES

*62.* _Special Law, General Laws._-In most of the States there is a special law under which congregations may be incorporated. New York is a good example.(111) Where such law does not exist, the congregation may be incorporated under the general laws. For business reasons each congregation should be incorporated.(112)

*63.* _Officers, Discipline, Property._-When a church society incorporates it becomes a private corporation, and the officers are bound to manage the property in the most upright and careful manner according to the discipline of the church.(113) When a parish incorporates, the t.i.tle to the parish property vests in the corporation, to which trustees may be compelled to convey it.(114)

*64.* _Incorporation, Evidence._-The certificate of incorporation or charter of a religious society or a certified copy thereof from the public record, is the proper evidence thereof.(115) Secondary evidence and evidence _aliunde_ may be competent in some forums.(116) In most States if incorporation is alleged in the complaint, it need not be proved unless denied by an affidavit or a verified answer.

*65.* _Congregation, Members._-The act of incorporation applies only to the particular congregation pet.i.tioning for it and does not extend to other churches, even though they are a subsequent growth within the same territory.(117) Incorporation once established is presumed to continue.(118) When a new religious society is formed and incorporated, consisting of individuals from existing parishes, the members of the new society from the time of its incorporation cease to be members of the respective parishes to which they had belonged.(119)

*66.* _Temporal Affairs, Management._-A majority of a religious corporation at a regularly called meeting may, by a vote taken, bind the minority in all temporal affairs.(120) The character of membership in the religious corporation may be very different from that of membership in the church.(121) The fact that a member has been declared out of the church by an ecclesiastical tribunal, may not affect his rights in the management of the temporal concerns of the corporation.(122)

*67.* _Corporators, Change._-In isolated cases here and there it has been held that a majority of the corporators of a religious society has the right to change the form of church government, as from the Congregational Church to an organization in connection with the Presbyterian Church.(123) But it is a general rule that a majority of the congregation can act only consistently with the particular and general laws of the church organization, but not in violation of them.(124)

*68.* _Const.i.tution, Subsequent Laws._-An ecclesiastical society formed before the adoption of the state const.i.tution is not by that const.i.tution and subsequent laws concerning religious societies divested of its legal character.(125)

*69.* _Name, Change._-The name of an ecclesiastical corporation is arbitrary and a change or alteration in its name does not affect its ident.i.ty.(126) A charter will not be granted to a church with a name so like another church in the same State, that one may be taken for the other.(127)

*70.* _Church, Regular._-In church organizations those who adhere to the regular order of the church, legal and general, though a minority, are the true congregation and const.i.tute the corporation if incorporated.(128)

*71.* _Notice, Legal._-All the proceedings of a corporation, including notice, must be in accordance with the const.i.tution and by-laws, and no business transacted contrary thereto is legal.(129)

*72.* _Control, Secede, Vested Rights._-The officers of a church corporation have control of the business management for all civil purposes, excepting as otherwise provided by the articles of organization, charter, or by-laws of the corporation. However, the by-laws must not contravene the laws of the State.(130) A charter was refused in Pennsylvania which provided that the congregation might, by a majority vote, dissolve or secede from the central body and divide the property.(131) A charter of incorporation may be amended in harmony with the principles, discipline, and objects of the church, but not otherwise.(132) The fact that incorporation of a church confers certain rights and privileges under the charter, such charter being accepted, does not give the church corporation any vested rights.(133)

*73.* _Consolidation, Control, Dissolution._-So far as the State law is concerned, two different denominations may form one corporation;(134) or two or more congregations of the same organization may form one corporation.(135) Where such consolidation is attempted, the new organization must have control of all the property.(136) So long as different congregations attempting to consolidate retain their respective ident.i.ties, they do not form a single corporation.(137) It is a general rule that a corporation may be dissolved by taking the steps required by law. As there are various statutory provisions in the different States, each case had best be attended to by an attorney. In some States there is a provision that where a corporation fails to carry out its functions for a stated time, it thereby becomes dissolved. The omission of a parish for one year to elect officers, does not necessarily operate as a dissolution under such statute. In case of dissolution under a statute of that kind, the property of the church is not forfeited to the State.(138)

*74.* _Debt, Limited._-The amount of debt which the trustees of a religious society may be authorized to create, may be limited by its const.i.tution.(139)

*75.* _Conditions, Effect._-Where $1,000 was given defendants to erect and maintain forever a Lutheran church and prohibiting the grantee from alienating or disposing of or otherwise changing or enc.u.mbering the land by deed, a mortgage given to secure a legitimate debt was held valid, as the legal t.i.tle was in the corporation and a court of equity could not refuse to enforce the mortgage for the payment of an honest debt under color of protecting a charitable use.(140) But property given a congregation for the maintenance of a church that becomes dissolved, reverts to the heirs as a resulting trust.(141) A corporation that has been authorized to purchase land may execute a mortgage for the purchase money or a part of it without further authority.(142) Where by an ancient agreement a meeting-house was to remain in a particular place, a vote of the congregation will not justify pulling it down, and an action of trespa.s.s will lie for razing it and damages will be given for the value of the building.(143)

*76.* _Suits, Parties._-When a church is incorporated, it should be sued in its corporate name; but when the bishop of the Catholic church holds the legal t.i.tle to the land in litigation, he should be made a party.(144) And if there are two sets of officers contending for control, service of the papers upon the intruders may not be sufficient. The safer practice is to serve upon both.(145) A suit by the trustees of a religious society to restrain other parties claiming to be trustees from interfering in the management and control of the society property, is properly brought in the corporate name of the trustees and not in the name of the State.(146)

*77.* _Incorporation, Sufficient._-Where the articles of incorporation were drawn and signed in the form required by law, excepting as to the acknowledgment, and were recorded, and the corporation organized in good faith, it became a _de facto_ corporation and was sufficient to ent.i.tle it to sue to prevent certain members from perverting the use of its property.(147)

*78.* _Dissolution, Fund._-The corporation of a congregation can not by seceding and a majority vote dissolve the corporation where it is a part of a superior body.(148) But the courts have plenary powers over corporations under the United States jurisdiction, such as territories, and may dissolve a corporation.(149) The fact that the dissolution is contrary to, or authorized by church discipline, makes no difference as to granting the dissolution, as such discipline can not supersede the state law.(150) On dissolution of a religious corporation, the surplus fund derived from a legacy should be disposed of in the manner the court believes to be most in harmony with the will of the contributors to the fund, could they have foreseen the event.(151)

*79.* _Reorganization._-A church corporation may reorganize and be reinstated into all rights that it formerly had.(152) The steps to be taken to reorganize are usually provided by statute and should be closely followed. Upon the reorganization, the old corporation becomes terminated.(153)

*80.* _Meetings, Majority, Quorum._-In corporate meetings, meetings of boards, and meetings of committees duly called, a majority vote of those present determines the action of the body. If the membership is indefinite, those who attend such meeting const.i.tute a quorum; but if the membership is definite, it requires a majority of the voting members to const.i.tute a quorum, unless the law of the State or the const.i.tution (articles of organization) or by-laws provide a different number.(154)

CHAPTER VII. SUPERIOR AUTHORITY

*81.* _Protestant, Ministers, Bishop._-In most church organizations the authority is divided into superior and inferior. In countries where there is an established Protestant church, the superior authority is first in the king and queen and secondly in the bishops. The inferior authority is in the ministers and secular officers of the church. Where there is no established church, the synod or bishop is the superior authority. Thus decisions of our courts usually apply to all churches alike.

*82.* _Roman Catholic Church, Pope, Bishops, Delegated._-In the Roman Catholic Church the superior authority is first in the Pope and secondly in the other bishops. This superior authority is graded and some of it may be delegated, as in case of a Papal delegate. But the general rule that delegated authority can not be again delegated by the delegate without special authority applies to church matters.

*83.* _Bishop, Discipline, Clergy._-Within his diocese the bishop is the executive officer, the legislature, and the judiciary; but he is subject to the superior authority of the Church. The bishop may make laws for his diocese, subject to the limitation of the general doctrine and discipline of the Church. He has original jurisdiction of all causes arising in his diocese, and may decide them in the first instance and inflict such penalties, suspension, or excommunication, in accordance with the canons of the Church, as he deems fit. The clergy are subject to his orders and discipline according to the canon law. However, without special contract, the bishop is not civilly liable for the salary of a priest under him, either while he is actually in the line of his a.s.signed duties or while waiting to be a.s.signed.(155)

*84.* _Local, Secular Matters._-There is still another division of superior and inferior authority: the local corporation or congregation has nothing whatever to do with the doctrinal or disciplinary functions of the Church; but has only such powers and authority with regard to secular matters as is provided by the laws of the State or conferred by the articles of organization, charter, and by-laws. Also, unless there is some other rule to the contrary, only the male members who are over twenty-one years of age, have a voice and vote in such corporation.(156)

*85.* _Unincorporated, Authority._-When a church is not incorporated, all its elections and proceedings, so far as they are not contrary to the laws of the State, must be in accordance with the rules and regulations of the Church; and the rule that the inferior authority must give way to the superior authority in all matters within the limitations of the const.i.tution and laws of the organization, prevails.(157) However, courts are not always clear on the last part of this rule.(158)

*86.* _Tribunal, Action, Appeal._-When any question arises and is being adjudicated in the tribunal of the church organization, either as an original action or on appeal, the State court will not interfere so long as the proceedings are in accordance with the rules and regulations of the church, unless some vested right to property is in question or some one's right as a citizen of the State or of the United States is being infringed.(159)

*87.* _Spiritual Authority, Excommunication._-Neither the Pope nor the bishop has any but spiritual authority within the State.(160) The law of this country considers excommunication as expelling from membership; but does not tolerate interference with civil or property rights of citizens.

Therefore, major excommunication _non tolerati_, is unlawful in the United States.(161) However, a bishop is not liable for any expression of his opinion as to the extent of his episcopal authority nor for any act of omission in the exercise of his spiritual functions.(162) The civil courts will not go behind a church authority to inquire as to excommunication, but may examine as to the competency of the tribunal according to the laws of the denomination.(163)

*88.* _Const.i.tution, Limited, Decisions._-A written const.i.tution is not necessary to prove the connection between a subordinate and superior ecclesiastical body; but it will be inferred from the circ.u.mstances of the case.(164) The superior may dissolve or reorganize an inferior body as a congregation.(165) In fact the superior authority, in religious matters, is plenary, excepting as limited by the laws of the State and the const.i.tution of the Church.(166) The decisions of the ecclesiastical tribunals in all cases on doctrine, order, and discipline, are conclusive in the state courts.(167)

CHAPTER VIII. INFERIOR AUTHORITY

*89.* _Priesthood_, _Discipline_.-The inferior authority in the Church may be said to be in the priesthood, whose rights and duties are fixed by the canon law, but who are still further subject to the reasonable diocesan rules made by the bishop. The disciplinary relation of a priest to his bishop is substantially the same as that of a captain to his colonel, and implicit obedience in accordance with the discipline of the Church may be strictly enforced by the bishop in so far as it relates to ecclesiastical matters, including doctrine and discipline, in which the priest can not resort to the courts of the State, but must submit to the tribunals of the church.(168)

*90.* _Congregation, Insubordinate, Discipline._-The male members of a congregation are invested with no visitorial or controling power, but only such authority as is given under the laws of incorporation.(169) Where an inferior organization, as a congregation, refuses to receive a clergyman appointed by the bishop, it is an act of insubordination to the ecclesiastical authority of the Church and in violation of its discipline, which authorizes the issuing of a peremptory mandamus commanding them to admit the clergyman.(170)

*91.* _Pastor, Parish, Relation._-When a clergyman's connection with a church had been duly dissolved, he ceased to be pastor of the church and an arrangement with the parish to retain his relation as pastor of such church was nugatory and void.(171)

*92.* _Clergymen, Citizens._-Clergymen residing in an incorporated town are not exempt from the performance of any duties required of citizens, unless such exemption is given by statute.(172)

*93.* _Doctrine and Discipline, Authority._-In all matters concerning doctrine and discipline of the Church, the inferior authority, such as ministers, priests, and deacons, as well as the congregation, must submit to the decision of the higher authority, whether bishop, synod, or council.(173)

*94.* _Sect, Suit, Property._-A number of people formed a congregation and became incorporated in 1810, the members being mostly of Presbyterian extraction. This independent congregation bought and paid for property, the t.i.tle vesting in the corporation. In 1811 the congregation pa.s.sed resolutions unanimously that it "would be imprudent and unscriptural" to establish a new religious sect, and voted to join the First Reformed Dutch Church, which had an organization of inferior and superior authority. The congregation was received into and became a part of the general organization, and remained so until 1860, when a majority of the congregation voted to employ a Methodist minister, and when his name was submitted to the superior authority, the "cla.s.sis," he was rejected as not belonging to the church. Then by a majority vote, the congregation seceded and a.s.sumed its first name, and thereafter brought suit for the church property. The court held that by joining the First Reformed Dutch Church, the t.i.tle of the property vested in the congregation of that church as represented by its corporation, and that when the majority seceded and left the church, they had no right nor t.i.tle to any of the property. And the court laid down the general rule that a majority of a church congregation may direct and control any church matters consistently with the particular and general laws of the organization or denomination to which it belongs, but not in violation of them.(174)

*95.* _Priest, Salary._-The fact that a bishop who holds the t.i.tle to all the diocesan property in his own name in trust appoints a priest to the parish or as chaplain to a hospital, does not give the priest a right of action against the bishop personally for his salary. The relation of bishop and priest is not that of employer and employe, but is that of ecclesiastical superior and inferior.(175)