89 Neb. 524 | Neb. | 1911
Lead Opinion
This is an action in equity to restrain the defendant from exercising any of the rights, faculties or privileges of a priest of the Roman Catholic church within the plaintiff’s church edifice, and from interfering with Father O’Brien, the alleged regularly appointed rector of the parish, in the discharge of his duties. Before answer day a motion was filed by seven gentlemen, including the defendant, to dismiss the petition for the alleged reason that a majority of the plaintiff’s trustees had not authorized the commencement of the action, but, on the contrary, desired that it should be. dismissed. A motion was filed in the plaintiff’s name to strike from the files the motion to dismiss, and upon issues informally joined, if they were joined at all, and without answer to the petition, the court heard evidence upon the substantial controversy between the contending individuals and dismissed the action. The court made no findings, but it must have adopted the theory of Messrs. McGowan, McNally, Murphy, Ward, Timoney, Schmidt and Jaki that by an alleged amendment to the plaintiff’s articles of incorporation they became entitled to control its secular affairs, and by virtue of that authority had employed the defendant to occupy the plaintiff’s church edifice and to celebrate the rites of the church therein.
The defendant William Murphy was also defendant in
Thereupon, in May, 1909, the defendant explained to his congregation at Ulysses the result of that litigation, and read to them certain aznendments, which he suggested should be made to the articles of incorporation. These amendments were adopted at a subsequent meeting of the
The plaintiff is incorporated as a society in conformity with the canons, discipline and faith of the Roman Catholic church. The statute so permits. The evidence is undisputed that, according to that discipline and those canons, local congregations and inferior officers of the church are under the jurisdiction and subject to the decrees of the higher officials and judicatories of the church with respect to ecclesiastical affairs, that the bishop of the diocese has authority to dismiss a priest or transfer him from one mission to another, and is vested with power to excommunicate "priests as well as laymen within the diocese. The decree of excommunication was not admitted in evidence, but sufficient appears to prove in this informal proceeding that the bishop exercised his authority to exclude the defendant from the priesthood and the church. We do not say that this proof will be sufficient if the defendant answers and the issue is tried on its merits, nor do we say that there is any such privity between the parties to this action and those in St. Vincent’s Parish v. Murphy,
In Pounder v. Ashe, 44 Neb. 672, we held that “where a local church organization is a member of an association of congregations having a set of general rules for the government and conduct of all its members and officers, and the orders and judgments of the association are binding upon the minor organizations or congregations composing it, its decisions, in so far as they relate exclusively to church affairs and goverment, are absolute, and will be so regarded by legal tribunals.” In that case the annual conference of the Evangelical Association of North America, acting within its jurisdiction according to the discipline of the church, deprived Reverend Ashe of the right to officiate as a clergyman in and expelled him from the church, and it was held that he should be enjoined from exercising in a church of that denomination the faculties of a clergyman, and should be restrained from interfering with the minister entitled to that position. See, also, Bonacum v. Harrington, 65 Neb. 831; St. Vincent’s Parish v. Murphy. supra; Watson v. Jones, 13 Wall. (U. S.) 679.
Father Murphy contends in the instant case, as he did in the St. Vincent case, supra, that the bishop had no authority to malte the order of excommunication; that, however great the bishop’s authority may be in matters spiritual, it does not extend to material things; and that the congregation of the plaintiff, acting through its trustees, may employ whomsoever they choose to minister to their spiritual wants, and have sole authority to commence, continue .or dismiss any litigation prosecuted in the plaintiff’s name. The defendant upon his cross-examination admitted that the diocesan court had authority, if rightfully exercised, to make the orders entered against him, but contended, as he did in the St. Vincent case, supra, that the order is void. If, upon the final hearing of this case, the proof shall be in the same condition that it was in the St. Vincent case, it will be the duty of the court to resolve this point against Father Murphy. The courts of the Ameri
The legislature in providing for the incorporation of religious societies, sects, bodies and denominations enacted section 167 et seq., ch. 16, supra, which apply with peculiar force to the organization of the Eoman Catholic church, but the bishop of the Lincoln diocese did not avail himself of this law. The legislature also enacted sections 40-44, ch. 16, supra, which afford the members of religious associations the right on their own initiative to incorporate. They may do so independently of any superior organization, and reserve exclusive control to themselves of such property as they may acquire, or they may organ
In the instant case the members of the parish at Ulysses did not reserve to themselves the right to acquire, hold and enjoy property free from the discipline of the parent church, but specifically stated that they organized in subserviency thereto. The word “Roman” was not incorporated in the articles, but its presence should be implied. Section 42, ch. 16, Comp. St. 1899, specifically states that the trustees shall have authority to obtain, hold and enjoy such property, real and personal, as they may acquire, “for the purpose of carrying out the intentions of such society or association.” The incorporators of the plaintiff plainly stated their intentions to organize “in conformity Avith the canons, discipline and faith of the Catholic church.” The discipline and canons of that church do not permit, but, on the contrary, forbid under pain of extreme ecclesiastical punishment, an exconnnunicated priest to celebrate any of the rites of the church or to exercise any faculty of the priestly office. While the civil courts will not assume to generally restrain an exscinded priest from assuming to exércise the faculties of the priesthood, yet, if he insists in performing those functions in defiance of the mandates of his superiors having jurisdiction over him and in edifices which have been dedicated to the worship of the faith which he assumes to thereby represent, he perverts the trust which the law impresses upon property held for or dedicated to.that worship, and the courts upon proper application Avill prevent that perversion. Attorney General v. Welsh, 4 Hare (Eng. Ch.) 572; Miller v. Gable, 2 Denio (N. Y.) 492; Pounder v. Ashe, supra; Bonacum v. Harrington, supra.
The trustees cannot authorize the diversion of the temporalities of the church from the purposes to which they Avere deAroted by the founders. Brunnenmeyer v. Buhre, 32 Ill. 183. Litigation of.this character has been sustained where so small a minority of an unincorporated association as one individual has complained that the temporalities of
We do.not find it necessary to determine whether the amendments to the articles of incorporation are valid or otherwise, or whether a .communicant of the church may or may not become a trustee unless the bishop of the diocese consents thereto. The bishop and vicar general are trustees of both boards, if it can be said that two boards exist, so that they are trustees of the plaintiff. In that capacity they have the right to institute and maintain any action which has for its purpose the vindication of the trust which the law impresses upon the property held in the plaintiff’s name for use in conformity with the canons, discipline and faith of the Eoman. Catholic church. Such a suit may be maintained in the name of the corporation, and it does not lie Avithin the power of a majority of the trustees, no matter how ovenvhelming, who are denying the authority of the church, to dismiss that action and thereby prevent the. court from protecting the church from the intrusion of an excommunicated priest to the exclusion of a priest duly authorized by the ecclesiastical authority haAring jurisdiction over the subject. First Reformed Presbyterian, Church v. Bowden, 14 Abb. N. Cas. (N. Y.) 356; Mt. Zion Baptist Church v. Whitmore, 83 Ia. 138, 13 L. R. A. 198. Nor is it material that nearly all of the present members of the plaintiff desire Father Murphy’s ministrations. The original incorporators devoted the plaintiff’s property to a
The judgment of the district court therefore is reversed and the cause remanded for further proceedings.
Reveksed.
Dissenting Opinion
dissenting.
I do not express any opinion upon the merits of the controversy between the officiating priest and the congregation at Ulysses, on the one side, and the bishop and other church officers upon the other. That the present conditions are unfortunate cannot be denied. But in the settlement of property rights involved in such controversies the courts are sometimes called into action and are compelled to settle and adjust such rights. They do not hesitate to discharge the duty when a proper case is presented for adjudication. Was such a case presented to the district