Gass's Appeal

| Pa. | Mar 27, 1873

The opinion of the court was delivered, March 27th 1873, by

Agnew, J.

This bill on behalf of a German Reformed con-

gregation, was to enjoin an Evangelical Lutheran congregation from holding Sunday schools in the church building. These congregations built a church for common use, and on the 8th of April 1848, adopted a “ canon law,” as they called it, for the government of its use by the two bodies. By the first article of this canon, the church was to be and remain a German Reformed and Evangelical Lutheran church, under the name of' “ Emanuel’s Church.” The third and fourth articles provide for funerals and burials in the burial-ground, from which it appears a graveyard was to be used in connection with the church. The thirteenth declares, that each congregation shall have equal right to the church property, and each pastor shall so arrange his divine service, as not to interfere with the pastor of the other denomination. The fifteenth article provides that it shall be allowed to hold divine service in two languages, in English and German.

The master finds, that divine service only was to be held in the church, and that by common understanding of both congregations, no meetings other than those for divine service could be held in it, and that, for a period of over twenty years, no other than meetings for public worship or preaching the Gospel were held there ; that a Union Sunday school, organized and kept up by the congregations, was held for many years in á school-house close by the church. A short time ago, the Lutheran congregation withdrew from the Union Sunday school, and established one of their own in the audience-room of the church, in opposition to, and without the consent of the German Reformed congregation.

This bill is to prevent this unauthorized and continued use of the audience-room for the Sunday school. The master finds, that Sunday schools were not in existence or thought of in this neighborhood at the time of the union of these congregations, and adoption of their rules; that both congregations understood, and rigidly adhered to the understanding, that a “ preaching service ” only was to be maintained in the church, and that singing schools, prayer meetings, and the like, were forbidden to be held there. He concludes by saying, he is satisfied, from the articles of association, and the testimony in the cause, the preaching of the gospel only was understood by the members of both congregations to be the “ divine service ” mentioned in th,e articles. In the-court below, the controversy was not upon the facts reported, but upon the meaning of the terms “divine service;” the defendants holding that they embraced Sabbath schools. The witnesses agree, that the German word G-ottesdienst, used in the articles of union,means in English, divine service ; and the court below decided that this included Sunday-school service. That prayer and praise, and, indeed, oral as well as written instruction in religious matters, by laymen, are used in Sunday-school service, is true, and in a general sense it may be .said to be divine service. Indeed, the Reverend Samuel J. Milliken did say, in his testimony, that the more extensive use of the term divine service, includes the performance of any duty arising out of our obligations to God; but in the more restricted sense it is used to signify acts of religious worship. This would give two significations to these words. Like words of art, the sense in which they have been used by the parties must, therefore, be sought for. It is the duty of courts to interpret the language of written instruments; but in doing this they always follow the meaning attributed to the terms by those whose custom it is to use them. Therefore, when a contract is capable of two different interpretations, that which the parties themselves have always put upon it, and acted upon, especially as here for a long series of years, a court will follow, because it is the true intent and meaning of the parties which are to be sought for in the language they use. However right it may be to view, as the court did, the Sunday school as a most useful institution in instructing youth in the knowledge and worship of God, and their duties to mankind, this praiseworthy view cannot change a written contract. We cannot engraft on a contract for one thing an agree-' ment for a different thing, though the fruit of the scion be even better than that of the natural stock.

These congregations never so understood or acted upon their agreement of union. They built their church for divine worship, by prayer, praise, and the preaching of God’s word. Its use was to be congregational worship, not school instruction. Their worship was to be led by pastors, who should regulate their appointments in due regard to mutual harmony, and was not to be the instruction of youth, even though part of it were in divine things, led by individual laymen. There are reasons, also,.why a chamber or audience-room, dedicated to public congregational worship, should not be thrown open to thoughtless, giddy, sometimes vicious youths, to deface and soil it. We think the court erred in deciding the case according to the general meaning of the words “divine service,” as testified to by some of the witnesses, instead of confining their signification to the sense in which the congregations understood it when they entered into the agreement, and afterwards practised upon it.

A doubt has been suggested as to the jurisdiction of the court in such a case, but, we think, without a solid ground. As unincorporated associations, the parties fall directly within the fifth equity head of the Act of 16th June 1886, conferring on the Supreme and Common Pleas Courts jurisdiction in the supervision and control of unincorporated societies or associations and partnerships : Foley v. Tovey, 4 P. F. Smith 130, is in point, opinion by the present Chief Justice. The number and relations of these parties, and the subject and nature of the injury, also, make the case one for the peculiar jurisdiction of equity. The number of the members of each congregation, and the uncertainty in their identity and connection with the congregation, make a remedy at law neither convenient nor certain. There would be some difficulty in moulding a common-law action to remedy the perverted use. The subject of the use is also peculiar. Such congregations are not governed by the ordinary rules of tenancy in oommon. It has been decided there can be no partition of a church or a graveyard held by two congregations, precisely as these two hold their property: Brown v. The Lutheran Church, 11 Harris 495. The language of Woodward, J., is forcible and just, in which he shows the sacrilegious character of a proceeding that would sell the altar and the graves; that a church cannot be divided; and that the policy of the state has always been to protect the resting-places of tbe dead. A sale is the only mode of partition in such a case; and what, he asks, would these graves, of inestimable value to surviving relatives, fetch in the market ? This, case, therefore, does not, on this ground, fall within the principle of North Pennsylvania Coal Company v. Snowden, 6 Wright 488.

The nature of the injury, too, is to be noticed. It is not an act of wrong or injury to the property itself, nor is it an ouster from possession, or wrongful withholding of the possession by one congregation from the other, but a mere perversion of its use; and here again it differs from The North Pennsylvania Coal Company v. Snowden, and from Tillmes v. Marsh, 17 P. F. Smith 507. In those cases the bills were-what is termed an ejectment bill — a bill to obtain possession and enforce rights under a legal title. Here the injury consists in a perversion of the right of the congregation, a misuse of its privileges under the articles of union, and it is continuing in its nature. It involves a series of injurious acts of misuse, and therefore can have no adequate remedy at law, if an action for damages could be conveniently sustained. This brings the case directly within the letter and spirit of the fifth head of equity, in the second branch of powers contained in the Act of 1836, to wit: “The prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community, or the rights of individuals.” The congregation defendant is not only an unincorporated association, and thus within the control of the court, but the congregation plaintiff is composed of individuals, whose rights are prejudiced by the defendants, and therefore entitled to the exercise of the restraining power of the court. In either way jurisdiction attaches. The right of the plaintiffs is not disputed, which takes the case out of the rule that the court will not enjoin upon a disputed title till it is settled at law. It is only the illegal acts of the defendants that are the subject of dispute, and they are clearly contrary to law, as we interpret the agreement of union. The disposition of this court has been not to deal with these equity powers in a narrow spirit”, but to make them serve all the purposes of justice to which they can be made applicable. In Wesley Church v. Moore, 10 Barr 280, Chief Justice Gibson remarked, that “the equitable jurisdiction conferred by these statutes is a valuable, indeed indispensable one, and ought to be extended by every interpretation of which the words are susceptible.” The same opinion has found utterance in subsequent cases: Kirkpatrick v. McDonald, 1 Jones 393; Yard v. Patton, 1 Harris 282.

The actual exercise of this valuable power of restraint has been sustained in numerous and analogous cases, which may be briefly noticed, premising that in the same clause is found the supervision and control of partnerships following directly after the supervision and control of unincorporated societies and associations, subjects analogous in the unincorporated membership, and the close and confidential relations of the members in each class. Thus in Stockdale v. Ullery, 1 Wright 486, a partner was restrained from pawning or pledging the notes of the firm for his own debts. So a partner may be restrained from doing acts prejudicial to the estate of a deceased partner: Holden’s Admin’r v. McMakin, 1 Pars. 284. And a person may be restrained from doing business contrary to a lawful agreement not to do so: Palmer v. Graham, 1 Pars. 476. So to restrain the use of a party-wall before payment of a moiety of the cost: Sutcliff v. Isaacs, 1 Pars. 494. To prevent the holder of a legal- title from conveying it away contrary to equity: O’Neil v. Hamilton, 8 Wright 18. To restrain associates from denying the right of one chosen by a publishing company as the editor of a paper, and preventing his publication of it: Peacock v. Cummings, 10 Wright 434. To prevent a usurpation of power by a portion of a body which should be a unit, as the Common Council of Philadelphia: Kerr v. Trego, 11 Wright 292. To restrain an unlawful sale under execution of the property of the wife for the debt of the husband: Lyon’s Appeal, 11 P. F. Smith 15. Without further citation, Kisor’s Appeal, 12 P. F. Smith 428, may be instanced as a case in point. There a deed was made of a church property to trustees, for the use of two congregations, with a provision for division in a certain manner, if conducive to the interests of the parties. One congregation took exclusive possession. Held to be a dispute between members of an unincorporated society in relation to their rights and privileges, and not merely as tenants in common of real estate, and equity had jurisdiction to restore the excluded party to their rights. Sutter v. Trustees of First Reformed Dutch Church, 6 Wright 503, is also an authority on this point. The decree of the court below, dismissing the bill, is therefore reversed, and the bill restored, and report of the master confirmed, and it is hereby ordered and decreed, that the defendants named in the bill of the plaintiffs, be enjoined and restrained perpetually from using the said church described in the bill, for the purpose of holding Sunday or Sabbath schools therein, and that the defendants pay the costs.

WiLiLAMS, J.,

dissenting. — I concur in the construction given to the articles or canons in this ease, but I dissent from the decree on the ground that the evidence does not show that any such injury has arisen, or is likely to arise from the act complained of, as warrants the interposition of a court of equity to restrain it by injunction.