31 P. 206 | Or. | 1893
Lead Opinion
Opinion of
The plaintiff relies mainly upon three points to sustain the decree of the court below: First, that because the constitution of eighteen hundred and forty-one had never been submitted to or adopted by any vote of the membership of the church, it was not the unalterable law of the church; second, that the amendment of the constitution and the revision of the confession of faith were regularly made and legally adopted; third, that the revision of the confession of faith did not materially alter, change,
What, then, remained for the general conference of eighteen hundred and eighty-nine to do in the matter? It appeared from the returns of the canvassing board that more than two thirds of all the votes polled had been cast in favor of the proposed amendments. What more was required than the proclamation of the bishops? The commission, without any authority whatever from the general conference, and in violation of the express provisions of their warrant, changed the time, and provided that the amended constitution should be in force from and after the first Monday after the second Thursday of May, eighteen hundred and eighty-nine, upon official proclamation thereof by the board of bishops, thus attempting to render any proclamation of the bishops, prior to that date, unnecessary. On the tenth day of May, eighteen hundred and eighty-nine, the commissioners who were appointed by the general conference of eighteen hundred and eighty-five, made a report to the general conference of their proceedings under their appointment, which was, upon motion, referred to a special committee of seven members. Five members of this special committee on the next day made a report to the conference, in which it was resolved, among other things,
The case of State v. Farris, 45 Mo. 183, was a quo warranto proceeding to test the legality of the election of a trustee. The charter of a college provided that vacan
The benefit of the society to the member, in consideration of his obedience to its rules, customs, and usages, constitutes the contract of membership. He assumes these obligations voluntarily, and agrees to be bound by them. If he disobey these rules, he also agrees to abide by the church’s judgment. Shall the courts make for him another or different contract? All they can do is to interpret the contract he has made. The severest penalty such societies can enforce is excommunication. This, however, should be according to the prescribed rules of the society. He should be charged with the offense, have notice of the time and place of hearing, be permitted to offer evidence, and make his defense. This would be a trial, and the judgment, if not appealed from to some higher judicature of the same society, would be conclusive as to him, and binding upon the civil courts. Nor would the courts inquire into the mode of procedure of these church trials, upon the pre
In the cases above cited upon this proposition all the questions were before the church courts to be adjudicated. They were trials. This church exercises legislative as well as judicial authority. What are the tests for determining whether the action of the conference was an adjudication or legislation? The business of the legislature is to make general laws for the public good; that of judicial tribunals, to make specific settlements of private disputes. One establishes laws for future action, and is prospective; the other applies established laws to past actions, and is retrospective in its operation. The law is made by one and applied by the other. Applying this distinction to the acts of the conference, it would appear that it was intended for the future public good of the society. It was a rule of action for future
The conclusion reached in the foregoing precludes the necessity of any consideration of the revised confession of faith, as to whether or not there was any change therein, or as to whether the same was properly or improperly made. Therefore the decree of the court below is reversed, the injunction dissolved, and the bill dismissed.
[37 Pac. 1022; 26 L. R. A. 85.]
Opinion of
It is unfortunate that it should become necessary in any case to call into requisition the courts of civil jurisdiction to determine and settle controversies arising within the pale of the church, and it is peculiarly so in the present instance, wherein the judicial mind has not been able, after years of litigation, to uniformly and satisfactorily solve the questions involved, or to apply to facts touching the controversy such a clear and indubitable rule of law as will result in conviction to those in interest, fix the exact status of the contending elements in the church, and forever set at rest the title to the immense amount of property involved. The constitution of the United States has guaranteed to the people thereof both civil and religious liberty. This guaranty extends as well to the encroachments of the state or civil government upon the rights, privileges, and immunities of the church, as of the church upon those of the state. It has brought about an entire and distinct separation of church and state, and is in con
I concede the proposition laid down by Taft, J., in Brundage v. Deardorf, 55 Fed. 846, that “an open, flagrant, avowed violation of the original compact” may be “necessarily a withdrawal from the lawful organization of the church,” but the facts as presented here do not disclose that the general conference has been guilty of any such acts. No fraud is even alleged by the defendants, as was the case by the complainants in Brundage v. Deardorf. Both the conferences of eighteen hundred and eighty-five and eighteen hundred and eighty-nine acted in entire good faith, and in the belief that their proceedings were constitutional. Grant, J., in his dissenting opinion in Bear v. Heasley, 98 Mich. 279, (24 L. R. A. 615, 57 N. W. 276,) states very clearly the proposition under consideration thus: “Grant that the action of the conference was illegal in declaring the amendments adopted. It is, indeed, a startling proposition that by this act the conference destroyed its identity, ceased to represent the church, seceded from it, and thereby became a new and different church. The proposition finds no principle in law, equity, or good sense upon which to stand. The fifteen who left the regularly constituted conference became the seceders, and not those who remained in it. If the defendants are right in their contention, it would follow that if the conference had been a unit in declaring the amended constitution adopted, in which event its action would have been no more binding than now, the members of the local church might have seized the
There is a class of cases holding that where a member of an unincorporated voluntary association violates the rules of such association, he loses his rights and privileges as such member, and even forfeits his right
in Brundage v. Deardorf, 55 Fed. 846, says: “I do not attach any particular importance to the word ‘request,’ as indicating that it is a condition precedent to the action of the general conference. It would seem that all that was intended was that no amendment of the constitution should go into effect until two thirds of the whole society should agree thereto. The constitution is inartificially drawn, and the expression ‘request,’ should not have a narrow meaning. Nor do I think there is anything in the article or in the constitution which prevents
The Code provision, section 776, subdivision 35, Hill’s Code, here referred to is as follows: “All other presumptions are satisfactory, unless overcome. They are denominated disputable presumptions, and may be controverted by other evidence. The following are of that kind * * *: 35. That a document or writing more than twenty years old is genuine, when the same has been generally acted upon as genuine by persons having an interest in the question, aud its custody has been satisfactorily explained.” — Reporter.
Dissenting Opinion
dissenting.
I am unable to agree with the conclusion reached by my brother, Wolverton, in this case. I do not think any satisfactory reason has been presented for changing the former opinion, to which I still adhere. Chief Justice Bean having participated in the trial of the cause below, took no part in the hearing on appeal, and Mr. Justice Wolverton and myself being unable to agree, it follows that the decree must be affirmed.
Affirmed by a division of the court.