Smith v. Erb

4 Gill 437 | Md. | 1846

Magruder, J.,

delivered the opinión of this court’.

The appellants, in this case, are a number of individuals who claim to be members of “ The German Evangelical Reformed Church, in the city of Baltimoreincorporated by the act of 1797, chap. 52. They charge, that the persons now in the offices of trustees and elders, were intruded into them; and they ask that others, who are supposed by the appellants to be the trustees and elders, be restored to the temporalities of the church; and for this purpose, that a Mandamus be issued. The petition was filed 9th October 1845.

By the act of incorporation, those who then were, and who afterwards might become, members of the congregation, are made one body politic, with the usual privileges conferred by our legislature upon religious corporations. The charter requires, that the male members, of the full age of twenty-one years, shall meet on the first Monday of January, then next, or within ten days thereafter; and on the first Monday of January, or within ten days thereafter; in every subsequent year, at their church: or such other place within the city of Baltimore, as may be appointed by the elders and trustees for lite time being. Notice is to be given by the president on the Sunday preceding the day of such meeting, to elect by ballot four of the members, to serve as elders for one year, and until another election is made, in virtue of this act; and also to elect four other members as trustees, to serve as aforesaid. In another section of this act it is provided, that when elders and trustees are to be appointed, the elders and trustees for the time being, shall, at least eight days before the day of election, nominate doable the number of the elders, or trustees, so to be elected. 'The president for the time being, with the elders and trustees, are to meet to regulate the concerns of the body; to make by-laws, deemed necessary for the good conduct of the members, and management of their temporal concerns: such laws not being contrary to the constitution and laws of the State.

The charter provides, that at all meetings of the elders and trustees, the minister for ihe time being, shall be the president; and in the event of his death, absence or removal, the elders and trustees shall appoint one of their own body, who, during ihe absence, removal, or death of the minister, shall have all the authority and privileges of the president. The title to property then held for the use of the congregation, is vested in the trustees and elders; and the last two clauses provide, that in case of the death, resignation, or disqualification of any elder or trustee, the body corporate “ shall, without delay, proceed to the election of another person in his place; whereof due notice shall be given by the president to the members of the corporation; and that, at a reasonable time before each and every election, the president shall nominate and appoint three persons to be judges thereof.

The appellants are styled by their adversaries, the discontented portion of the congregation; and in speaking of themselves, they give us to understand that a controversy arose in the congregation, and in consequence they separated into two divisions, one adhering to the minister, Erb, and the intruding elders and trustees, aforesaid, and two of the officers, whose title is not questioned; and the other, to which the appellants belonged, was kept in due and legal organization, by those elders and trustees who had been deposed.

The appellants complain of divers irregularities in the proceedings of those, who acted with the minister, in the trial and expulsion of members of the congregation, and also of officers. If those persons were here, complaining, in a proper form, of the treatment received by them, it would be difficult indeed to justify or excuse all the acts done by them, for (he good con duct and government of the members.” But the question before us is not, with what abuses of power and acts of injustice either of these divisions can be charged ? but, who, at the time of this application, and at this time, can claim in virtue of the charter, the powers which it is said have been abused?

On the part of the appellants it is insisted, that the persons for whom they have been accustomed to vote, since the division spoken of in the petition took place, were, and are rightfully the persons, to exercise all the powers conferred upon the pastor, elders and trustees of the congregation, and that those in office during this time, the officers de facto, were intruders.

The difficulties to be encountered, seem to have suggested themselves to the petitioners themselves; since they are unable to tell us in what precise form relief can be extended to them. Obviously it is not sufficient to prove, that the election which took place in January 1843, was not holden in strict conformity to the charter, because it is to be presumed, as the charter directs it, that since the alleged irregularity, and in the years 1844, 1845,1846 and 1847, elections of those officers, who are to be annually appointed, have taken place; and touching the validity of any of these subsequent elections, we are not now to enquire.

Surely those who were elected in January 1847, (if that election was in conformity to the charter,) are not to be dealt with by us as intruders, because it may appear, that the election in 1843 was not valid; and must have been so adjudged if its validity had been questioned, at a proper time, and in a proper way.

The question, perhaps, is one of life or death to this congregation, so far as its existence or prosperity depends upon the existence of the corporation. On both sides it is insisted, that each has attempted to keep up the succession; and each insists, that the other has been unsuccessful in its attempts; and if it be true, that for the alleged irregularities, the election by the petitioners, and their division, was void, it would be difficult to prove the existence of a legal body which can sue or be sued; or in any way assert title to the property belonging to this corporation.

It is true, the appellants contend, not only that every thing which has been done by their adversaries is illegal, but that they have taken care to do, as it ought to be done, every thing which must be done, in order to a valid election. But this, a reference to the charter will show to be utterly untrue.

It is assumed by both parties, that the election in January .1842, was a valid election. And it is also admitted, that the vestry then chosen, in the course of the term for which they were chosen, elected the defendant Erb, as pastor of this congregation, and to continue such until March 1843. During this term, then, the congregation was supplied with a pastor, who was undoubtedly its pastor, and would have been such, although there had been, from the time of his election, not one trustee, or elder in office, under the charier granted by the legislature.

A new election, according to the provisions of the charter, of the trustees and elders, was to be made in January 1843, and it seems to be conceded, that two elections, efe facto, took place. The appellants say, that the election made by them, and those who acted with them, was valid. This, however, is impossible, because in order to an election in strict conformity to the charier, notice of that election must be given the Sunday previous, by the president of the vestry, who was then the Rev. Mr. Erb, himself, from whom the appellants had separated. By another clause, the same gentleman was the only person authorised to appoint the judges of the election; and the nomination of double the number of the trustees and elders, to be appointed in January 1843, was to be made by the president, elders and trustees, for the time being.” This organization then, can claim nothing under this charter, in virtue of their organization. It seems to be taken for granted by the appellants, that their pastor, trustees and elders, are not in possession of the property of the corporation, or why this application? And if they are the vestry, de jure, a Mandamus, surely, is not the proper remedy. The object of a writ of Mandamus, we are told, “ is not to supersede legal remedies, but only to supply the defect of them, by commanding the person to whom it is directed, to do something, which it is supposed he is bound by his duty to do; which the party prosecuting the writ has a right to have done; and for which the applicant has no other specific legal remedy, or such other remedy has become obsolete.” Step. Nisi Prius, 2291. Now, if the allegation be true, if by these petitioners, and others of the congregations, there was at the time of the application “lawful elders, trustees and ministers, as aforesaid, — of the said parsonage and school house, and stable; and of all other property of said corporation:” — surely the law gives them other and complete remedies against those who hold any of the property; and they need not the aid of a writ of Mandamus.

If any of their privileges as members of the corporation have been invaded, then, to be sure, the law ought to afford them an ample remedy; but the law, (see Step., 2323,) says, that “one writ of Mandamus cannot issue, for the enforcement of separate claims.”

The difficulty of discovering in what way relief is to be afforded to these petitioners, seems to suggest itself to them. They claim the rights of members of this congregation, and it no where appears that any of their rights, as members, have ever been questioned, if they be members, they may have been allowed to vote at the recent election of elders and trustees; and may have elected the very men, whom it is their desire to have for elders and trustees; or if they have not, the court cannot say that it is not owing to the circumstance, that although the election was in every respect regular, they were found to be in the minority. We cannot infer from the account, which they themselves give, and which is uncontroverted, they have not separated from the congregation, (which they had the power to do,) or that they would again be members, unless, in some way or other, they can be allowed to carry back with them, their own pastor, elders and trustees.

It is argued, that the acts of the vestry were not valid; and in order to be valid, they must be the acts of trustees and elders, de jure. But in Vernon Society against Hill, 6 Cow., 23, it is said, that the trustees of a religious society, though they are irregularly elected, are in colore ojjcii; and 1st Hall N. Y. Rep., 191, we are told, that where the trustees of a religious society sue, colore officii, the defendant cannot object to their right, of recovery, upon the ground that they were not trustees, without showing, that proceedings have been instituted against them by government, and carried on to judgment. If it be alleged, that the present proceeding is the proceeding here alluded to; the obvious answer is, that it is too late now to question the legality of an election made several years ago, when the term for which the election was made, has long since expired. It cannot be pretended in this case, that the defendants are to be considered as trustees, virtute electionis, in 1843, when each party insists, that a valid election was made in 1844; and neither denies, that such an election took place in 1845, 1846, and 1847.

The good sense of the decisions before alluded to, must be obvious. A member elect of the legislature, is permitted to retain his seat, although it is disputed; and is permitted to vote, so long as he retains his seat; and by his single vote, measures of great importance may be carried or defeated. It may afterwards be decided, that although a member defacto, he was not de jure.: that another candidate was duly elected, and was in truth the member de jure. Yet all the acts and votes of the former, until he was legally ousted, are as valid as they would be if his seat could not be contested.

The law ought to be strictly obeyed; but it is possible that its directions may not be strictly, and in all respects, complied with; and yet a fair election may be had, and all persons who have a right to object, may be satisfied with the result.

It may be thought that there are reasons of state, which justify these decisions, in regard to the election of delegates and senators, and governors, but do not furnish precedents for our guidance, in deciding cases like the one before us. To this it may be answered, that if they be right in the cases alluded to, then it. must be absurd, and moreover, it would be wicked, to depart from such rules, in such cases as the present. Is it to be deemed of no importance in this Christian land, that houses of public worship are to be shut up, because of objections like these 1 or, that the real Christian portion of a congregation are prevented by injunction and Mandamus, from assembling with their Christian brethren, at their accustomed place of public devotion?

Corporate rights, and the little offices which the incorporating act create, may be deemed of value by some, who rather than be defeated in their wishes in regard to them, will disturb the peace of a congregation; but there are other privileges to which others are entitled, and of which they ought not to be deprived by groundless objections. The law selects the persons whose duty it is to give the notices, and make the nominations, which it directs. It ought not to punish others for their omissions of duty, when it is not in proof, that, by reason of these omissions, any object of the law in requiring them, is frustrated. If the individuals heretofore holding offices in this corporation, were not, de jure, they were, defacto, trustees and elders, and their official acts in 1843, must not be questioned at this late period.

But even if there was in the election in 1843 some irregularity, still, we are bound in deciding this case, to conclude that the elections took place, and that the persons elected were, defacto, trustees and elders for that year; gave the legal notice, and made the nominations required the ensuing year; and that the same was done subsequently: and if so, then ever since there have been trustees and elders de jure. If the law has been obeyed since the year 1843, and this we are not to question, an election of elders and trustees has been recently made:— and surely, the court can have no right to take from the persons in whom the law vests it, the property of this corporation; and give to others, who, perhaps, were the legal owners of it in the year 1842, even although they were wrongfully deprived of it then, but by a title which was determined the 1st of January 1843:

These views of the subject render it unnecessary to enquire, whether in the trial and condemnation of individual members and officers, in 1842, the pastor and his vestry acted according to law ? Nor is it necessary to express an opinion upon many of the points decided by the court below. The judgment is affirmed, because, even if the parties were once entitled to it, it is too late now to order a peremptory Mandamus.

JUDGMENT AFFIRMED.