Stack v. O'Hara

98 Pa. 213 | Pa. | 1881

Lead Opinion

Mr. Justice Trunket

delivered the opinion of the court

When the plaintiff was ordained he obligated himself as follows : “ I, Michael P. Stack, promise and swear that I will serve' the missions of the diocese of Philadelphia, under the obedience of the ordinary, forever in perpetuctm, so help me God, and these His Iloíy Gospels.” Toward the end of the ceremony he placed his hands in those of the bishop, who then asked him, ‘‘ Do you promise to ine and my successors obedience and reverence ?” and he answered, “ I do promise it.”

In the United States the Catholic Church is missionary, and there are no parish priests except, perhaps, in a portion of the territory acquired from France. The plaintiff assumed to discharge the functions of a priest' in the missions of the diocese. Since his ordination the diocese of Scranton has been created of • territory formerly within the territory of the diocese of Philadelphia, and his obedience and reverence became due to the bishop of Scranton. Both bishop and priest, in their respective relations, are bound by the laws of their church, which are applicable to the missions in this country, and these laws define and limit the authority of the one and the obedience of the other.

The primary inquiry is, whether a priest appointed by his bishop to a mission in the diocese, is removable at the will of the bishop ? This question was not submitted to the jury, but the court instructed them that under the law of the church a bishop has not only the right, but it is his duty, to remove a priest for sufficient cause. A number of the assignments of error are based upon that instruction. However much the plaintiff differs from all other witnesses respecting the unwritten law, or in his inferences from the written, there is no conflict in the testimony as to what the written law is which touches the question. Both parties concede the applicability of the enactments of the second Baltimore Plenary Council of 1866, a portion of which is proved by each. Paragraph No. 108 is thus rendered by Dr. Corcoran: “We confirm and again promulgate some decrees that have been passed by former councils of Baltimore. Whereas, very often it has been called into doubt by some whether prelates of the church had power in these states of the Union to depute priests, send them into another part of their diocese for the purposes of the sacred ministry, and also recall them when they judge fit in the Lord, we admonish all priests who live in this diocese, whether ordained therein or admitted into the same, that, mindful of the promises that they have made at their ordination, they refuse not to attend any mission that shall be assigned them by their bishop, if the bishop judge i't sufficient for the decent sustenance of their livelihood, and consider also that that office be suitable to their strength and health. By this declaration, however, we wish to change nothing as to those priests who hold parochial benefices, of which one only, to wit, in the city of New Orleans, is as yet known to exist in this country. Nor do we, by any means, intend to derogate from the privileges that have been accorded to religious persons by the Holy See. Affirming the duty of the priest to atteud to any mission that may be assigned to him, and recognizing the power of the bishop to appoint him thereto, or to recall him thence.”

The plaintiff gives paragraphs 123 and 12!- as' follows: “ Since formerly there existed by the highest, by the best right, as the Council of Trent says, distinct dioceses and parishes, and proper pastors were given to each flock, and there were rectors of minor or inferior churches who should have the care, each one of his own flock; it is altogether desirable that, according to the custom of the universal church, parish priests, properly so called, as they exist in Catholic countries, should be constituted also in the churches of our provincesbut such is the condition of our times and circumstances that this cannot yet be done. The Fathers of this Plenary Council, however, are of the sentiment — their mind is — that gradually, and as far as circumstances will allow, our discipline in this matter may be conformed to the discipline of the universal church, or the universal discipline of the church.” “ We will, therefore, or wish that through all these provinces, especially in the larger cities where there are many churches, a district after the manner of a parish,, with accurately described limits, be assigned to each church, and that the rector thereof be accorded the right parochial, or quasi parochial rights.”

And Dr. Corcoran states paragraph 125 thus : “ By making use of the words parochial right, parish, and parish priest, we by no means intend to accord to the rector of any church that right which is called of immovability, or to take away or in any wise diminish that power which from the discipline received in these provinces, the bishop possesses, of depriving any priest of his office,\or transferring him elsewhere. But we admonish and exhort all bishops that they should use this their right only for grave reasons, and taking into full consideration the personal merits of the individual.”

These provisions, in enactments specially made for the church in the United States, are too plain to admit of doubt as to the bishop’s power to remove a priest. Their interpretation was for the court: Sidwell v. Evans, 1 F. & W. 383 ; Bock v. Lauman, 12 Har. 435. When the testimony is of unwritten law only, and is conflicting, a different case is presented, of which we need not speak. The council expressed a strong desire that parish prie'sts, as they exist in Catholic countries, should be constituted here ; but declare the condition of our times.and circumstances such that this cannot yet be done. Although they will or wish that in these provinces, in localities where there are many churches, a district after the manner of a parish may be assigned to each church, and that to -the rector may be accorded the right parochial, or quasi parochial rights, they proclaim that it is not in any wise intended to diminish that power the bishop possesses of depriving a priest of his office, or transferring him elsewhere. They affirm and again promulgate the duty of the priest to attend any mission that may be assigned to him, and recognize the power of the bishop to appoint him thereto, or to recall him thence.

The pastoral relation is neither created nor dissolved by agreement between the priest and.congregation — the bishop appoints or removes the shepherd as he deems for the priest’s good, or for the interest of the flock.

Removal is the exercise of episcopal authority according to the bishop’s judgment. It may be without supposition of wrong, and it leaves the priest in the same position as all other priests who are without employment. Suspension is a judicial . act based on something which calls for such sentence. A sentence of suspension follows a trial for an offense, from which the priest may appeal; but for a removal the priest may have recourse to the bishop’s superior. To confound removal with suspension, acts so different in character, is to lay the groundwork for misapplication of certain laws of the church, and also for the false conclusion that the bishop has no power of removal for grave cause, unless tlusre first be a trial for some ecclesiastical offense.

When a priest is accused of an offense for which he may be convicted and punished, lie is entitled to a trial according to the laws of the church, before he can be sentenced. But the law relating to such case throws no light on the question of the bishop’s power of removal. Nor do the laws respecting parish priests, in Catholic countries, control enactments made for the government of bishops and priests in this country. It is true, as the plaintiff contends, and for which he cites Dr. Smith’s Elements of Ecclesiastical Law, p. 381, that pastoi’s in the United States should not be dismissed from their parishes, ratione crimmis, save on regular trial; and no priest accused of an offense shall be punished save on regular trial. This has no bearing on the question of the bishop’s power of removal at his discretion. As quoted in the plaintiff’s own testimony, the same author, p. 170, § 401, says, “ Ecclesiastics Who are amovable at the will of the bishop may be, even against their will, dismissed .without such trial or sentence.” And p. 178, § 417, “ The following ecclesiastical office-holders, chiefly, are amovable at the nod of the bishop — at the bishop’s will; . . all pastors in this country, save one, perhaps, in New Orleans.” And p. 179, “ Again, bishops in this country do not, as a rule, remove pastors without sufficient reasons. Hence, in ease a pastor is removed sine causa, without at the same time being placed over another congregation of equal importance, he may have recourse to the superior for redress, since such removal would seem to be not only illicit, but invalid.” The author treats a dismissal, ratione cri/irdnis, as a very different thing from a removal for grave reason by the bishop, at his will.

Aside from the written law, the evidence is strong that it has been the usage for bishops to appoint and remove pastors, from the planting of the church in the colonies to the present time. Though often the power has been doubted, contests by priests in the civil courts on the ground of illegality have been very few. It is not alleged that such removal had been declared unlawful previous to the litigation between these parties. In a recent case, among the conceded facts was this, “ By the usages of the Homan Catholic Church in New England, . . the bishop appoints the priests to the several parishes in his diocese and removes them at his pleasure:” Hennessey v. Walsh, 15 Am. L. B,eg. 264. However clear the bishop’s power to remove a priest at his pleasure may appear in the unwritten law, we shall not dwell thereon, for the written is conclusive of the question.

- That portion of the charge which constitutes the thirteenth specification, taken by itself, perhaps, is erroneous, but not with the context. It is in the midst of instructions respecting the rights, duties and obligations of the plaintiff and defendant, under the laws of their church, wherein the court ruled that the defendant had no right to remove the plaintiff from any malevolent or capricious spirit, or without a reasonable cause. And though it is said that the priest got his office from and holds it subject to the will of the bishop, and does not own it as other property, it is also said that both were bound to know the laws and established usages of the church which regulated their conduct in their respective offices and governed their official relations with each other.

The plaintiff urges that the removal so injured him in the property of his profession that if not contrary to the laws of the church, it is to the supreme law of the land. His profession is that of a priest in the church. He acquired it by compact. He holds it under a promise to obey the laws of the- church and the proper orders of the bishop. Were his contract void for its immorality or illegality, he could recover nothing for its breach. If illegal, he is neither entitled to restoration nor to damages for his removal. If legal, and his removal was authorized by the terms of the compact, no law of the land is violated. In this country the Church is completely separate from the State. Every church organization is voluntary on the part of its members, and the terms and conditions depend entirely upon its own rules. The profession of priest or minister in any denomination is taken subject to its laws. These he agrees to obey. If they become distasteful to him he can withdraw — no power can compel him to remain and perform his priestly functions; but if he violates the laws of his church, or disobeys the lawful commands made in accord with his compact, the civil courts will not maintain his footing in the church. If the plaintiff was removed in accord with the law of the church he has no cause of complaint. If such laws provide that the bishop may remove a priest without trial he has no right to a trial, and if they provide that he shall have recourse to the bishop’s superior in case of wrongful removal, his remedy is by such recourse, for this is his contract.

The late Judge Redfleld, in a note to Hennessey v. Walsh, supra, said, “Some principles are well settled by the repeated decisions of the courts with slight or no conflict. 1. The decisions of ecclesiastical courts, having by the rules or laws of the bodies to which they belong, jurisdiction of such questions, or the right to decide them, will be held conclusive in all courts of the civil administration, and.no question involved in such decisions will be revised or reviewed in the civil courts except those pertaining to the jurisdiction of such courts or officers to determine such questions according to the law or usage of the bodies which they represent. 2. It is a universal rule of law, applicable not only to this subject, but to all subjects connected with legal administration, that one who becomes a member of any church or other society thereby consents to be governed by the rules, or laws, of such organization, and that he cannot justly claim to have suffered wrong or injury by the enforcement of such rules upon himself or his property, upon the maxim, volenti non fit imjuria. And this maxim applies to cases when the party voluntarily ¡alaces himself in a position ultimately to have an act done affecting his interests, or done at the will of another, as if he subjected himself directly and immediately to the act; upon the principle that one who puts the slowest agencies at work, which are sure in the end to produce a given result, is as truly the author of the ultimate result as if produced by ever so immediate and direct causes. 3. That the courts will not interfere with the internal police and discipline of churches or other voluntary societies, so long as they keep within the reasonable application of their own rules, which were known to the members, or might have been learned by them, upon reasonable inquiry, at the time of connecting themselves with the society or church.”

The foregoing clearly stated principles repel the conclusion that the plaintiff’s removal, if in accord with the law of the church, was contrary to the law of the land. They also show that the civil courts will not interfere where the ecclesiastical courts or officers have jurisdiction and have acted under their own rules,, giving them a reasonable application. At the time the plaintiff was ordained, the law of the church was the same as now ; no right has been taken from him or duty imposed by subsequent legislation j ho knew then that if appointed! to a mission he was subject to removal, and the high authority, quoted in his testimony, says that if wrongfully removed he may have recourse to the superior for redress. He sought no redress under the law of his church, but at once resorted to the civil courts. Without saying that the court below erred in his favor — this question is not raised in the record — he was allowed the utmost latitude consistent with the religious liberty of the church. The Catholic priest is as much bound by the law of that church as is any Protestant preacher by ihe'law of his. A principle which would authorize the civil courts to interfere with the pastoral relations, or with the operation of church laws, or with the discipline of members, in one religious organization, would also in all. others. The church should be free to deal with its members, officers and ministers, according to its laws and established usages. It would be a grievous wrong to the church to rule that its priests and ministers are exempt from its proper discipline and authority because of their profession. They have no property in 'such profession that is shielded from the consequences of their broken vows and compacts. They neither acquire nor hold it as they do lands or chattels.

From what has already been said with reference to other points, it follows that the court was right in ruling that, “ To enable the plaintiff to recover, the jury must be satisfied from the evidence that the plaintiff was wrongfully and unlawfully removed from his charge.” Acting in the office of bishop, making a removal under the laws of the church; it will not be presumed that it was wrongfully made by the defendant.

The next matter to consider is the effect of the' letter of November 5th 1871, by the defendant to the plaintiff, as follows :

“ Net. Sir : Your administration of the affairs connected wdtli the Church of the Annunciation has been such that I feel myself compelled to remove you and leave the church vacant. And I now forbid you to exercise any priestly function in Williamsport, even to say mass. This prohibition binds sub gravi. You may call at Scranton and I will inform you of my further intention in your regard.”

The jilaintiff contends that, “ The real question, admitting for the argument that it was not res adjudieata, was the legal effect of the letter. Did it make such accusations against the plaintiff as gave him the right to have these vague accusations defined, and tried upon full notice and hearing, and opportunity of defense?” All through the trial, and in the points he submitted, the plaintiff claimed it was the province of the court to construe or interpret the letter; and we are of opinion that the interpretation was coi’rect. Little will be added to the remarks of the learned judge of the Common Picas. In reading the letter, the law of the church respecting removal should be kept in view. Removal should not be made but for grave and sufficient reason. If the bishop cannot refer to the unskillful or careless management of the affairs of the church, or other fault, which mars the priest’s usefulness in the congregation, without being held to the making of a criminal accusation, it were vain to enact that he may remove him, and to admonish that he do not remove without grave cause. The language of the letter implies bad administration of the affairs of the church. This is a grave cause, and could arise from one or more of many defects, in the priest not constituting an ecclesiastical offense. Sufficient reason -may exist calling for removal where there is none for accusation and trial, or for suspension. In plain terms, the plaintiff was removed, and forbidden to exercise any priestly functions in Williamsport. This prohibition did not extend elsewhere, and the simplest rule of interpretation limits its operation to the place that is named, leaving him in possession of his priestly faculties, with liberty to exercise'them in other places in’ like manner as any other unemployed priest. The church was located in Williamsport and embraced the English speaking or “Non-Gennan Catholics ” of Williamsport — the only other Catholic Church in that place being the German — ■ and the prohibition was cdmplete as to Williamsport. To have made it less extensive would have left an open door for its evasion. The words “ sub gravi ” relate to the prohibition, and if they mean all that the plaintiff says they do, he would suffer nothing because of them so long as he should keep the promise made at his ordination. It was unnecessary to assign a cause for the removal; the letter contains no accusation of crime, or of moral fault, yet states the grave reason. Rut if the words admit equally well of two constructions, one in accord with the lawfulness of the accompanying act, and the other opposed, they shall be taken in the sense which so accords; for it will not be presumed that a man intends to give a bad reason for a lawful act, thereby vitiating the act itself.

Moreover, if on the face of the letter there be room for doubt, it may be read in the light of the understanding of the parties at the time. Within four days thereafter the plaintiff called on the defendant at Scranton, and from there wrote to Rev. J. Kœper, pastor of the German Catholic Church in Williamsport : “ The bishop says he will give me a mission of good income and free of debt. He thinks, very properly, that I do not relish the idea of paying off debts, or engaging myself with brick and. mortar. . . He holds to his intention of punishing the Irish congregation of Williamsport; says he will not send a priest there for some time. On reflection J. think this course may prove beneficial. I intend going to Friendsville with Slattery for Sunday, and preaching for the natives.” This is convincing that the plaintiff knew he was simply removed and that he still possessed his priestly faculties, 'with liberty to exercise them outside Williamsport wherever invited. He thought it might prove beneficial to punish the Irish congregation, and concedes that he did not relish paying off debts or engaging with brick and mortar. He was promised and was willing to accept another mission. Although smarting under his removal, he then felt no sting of an accusation for an alleged offense, nor did he claim a trial, nor did he think the removal unlawful based on the ground that he so disrelished paying debts that he had not well administered the affairs of the church. His own testimony reveals that he afterwards refused a mission because he thought it not good enough, and then it entered his mind to contest the removal — not by recourse to. the bishop’s superior — ■ but in the civil courts.

On the date of the removal, the bishop wrote to Hsv. Keeper directing him what to do with the property of the Church of the Annunciation, and what to do for the sick, but saying nothing of the plaintiff. The entire letter concerns the property and congregation, and the words “ severe course ” refer to the treatment of the congregation, which on reflection the plaintiff thought might prove beneficial. Even if those words could be construed as also applying to the removal of the plaintiff it would not change the nature of the act. The discipline could be severe without punishment in any sense other than is necessarily included in the removal of a priest against .his will.

The assignments of error relating to the instructions respecting the several letters cannot be sustained. Nor can those resting on objections to testimony, on the ground that the interpretation of the letter of removal was for the court. At the plaintiff’s request, the court did interpret the letter, and the admission of said testimony could not have affected the questions submitted to the jury.

We discover no error in the submission of facts on the question of reasonable cause for removal. Nor as to what were the rules of the church respecting the keeping and rendering of accounts by the priest to the bishop. There was evidence of rules relating to accounts. Without stating the rules, the court charged, “ The only question is, are they required to be kept ? If they are, then a failure to perform them is a neglect of duty ; and a refusal to perform them, after request by the bishop, is a willful dereliction of duty.” If more specific instructions concerning tlie rules were desired they should have been requested. There is no unwarranted assumption of facts in the clauses of the charge set out in the 16th, 17th and 18th assignments, if said clauses be properly read in tlie context.

The jury having found that the plaintiff was not entitled to recover, and as the caso does not go back for trial, the instructions respecting damages need not be remarked.

The remaining assignment that will be noted, is to the ruling that the proceeding in equity decides nothing except the question of costs. The decree of the court below in that case was, 1. That the removal of the plaintiff as pastor of the Church of the Annunciation was unlawful; 2. That the prohibition to the plaintiff to exercise any priestly functions in Williamsport was unlawful: and 3. That the defendant pay the costs, except the plaintiff’s bill. This singular decree declared the defendant’s act unlawful, yet gave the plaintiff no redress, the result being that each party paid a fraction of the costs. Had the bill been dismissed without prejudice, and the costs divided between the parties, the decree would have been less novel, but more in accord with the practice in Pennsylvania. It is fairly said that the opinion of this court, as filed, is in affirmance of that decree, and it having been so considered at the time by two of the five judges who heard the case, they dissented. A motion was made for re-argument, which was refused on the ground that nothing was decided but the question of costs, the Chief Justice filing an opinion concluding thus: “ In concurring in the decree of the affirmance all that I meant to decide, and all that I think was meant to be decid_d, was that under the special ciicumstances of the case, the judge below exercised a sound discretion when he refused to impose all the costs on the appellee.” lie did not understand that it settled anything as to the powers and rights of the bishop over the priests : O’Hara v. Stack, 9 Nor. 492. Hence, but two of the judges concurred in the opinion, or in affirming anything but the disposition of the costs, and the court was clearly right in treating the case as if the bill had been dismissed without prejudice. That was the substantial act, though not the frormal, of this court in the final disposition of the case on the motion for a re-argument.

Judgment affirmed.

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Dissenting Opinion

Mr. Justice Mercur,

dissenting, filed the following opinion, in which Gordon, J., concurs :

When the case of O’Har’a’s appeal was here, 9 Norris 477, we held the present plaintiff in error, then appellee, had a right of property in Ins profession as a Catholic priest, and a prohibition of the exercise of that profession by the then appellant, without accusation or hearing, was contrary to the law of the land. We declared that although his salary as pastor of the Church of the Annunciation was not for a specific sum, but was the product of pew rents and voluntary offerings,, yet he had such a right of property therein as the law recognized. Without professing to overrule that case, or the well established principles there declared, the judgment now about to be pronounced in effect repudiates them, and strikes down the cardinal rules of law therein affirmed. Against this denial of a vital and most salutary right of property, I am constrained to record my strong dissent. In so doing I do not in the slightest degree deny the right of a church to enforce its discipline in all matters of faith and of doctrine. The right now affected is one of property. A profession is acquired by years of study, privation and expense. When obtained, it is property in the highest sense of the word. It should be protected as well as property in chattels and in lands. It was said, in Byrnes’ Admrs. v. Stewart’s Admrs., 3 Desanssure 478, “It cannot be doubted that a man’s trade or profession is his property.” That a Roman Catholic priest has a right of property in his profession is distinctly affirmed in Cummings v. State of Missouri, 4 Wallace 277. A section of the new constitution which operated as a bill of attainder against him was therefore held to be in conflict with the constitution of the United States. The right of property in a profession was recently affirmed in the case of Steinman and JBLensel, members of the Lancaster bar.^* The property of a priest of the Church of Rome in his profession, is of especial value to him, inasmuch as being once ordained as such his obligation is to serve in the priesthood for life, and it is declared in the English edition of the Council of Trent, page 175, that “ it beseems not those who are enrolled in the divine ministry to beg or exercise any sordid trade to the disgrace of their order.” Once a priest, then as long as he remains true to his church, his main temporal property is his profession.

The .plaintiff’s property in his profession was no mere abstract right. When thrust out of his church by the mandate of the defendant he was in the receipt of $2,900 annually. It was made up by the rent of pews, by marriage and baptismal fees, from Sunday collections and those made at Easter and Christmas.

On the trial the record in the former suit in equity, was given in evidence. The whole case is therefore before us.

The gravamen of the complaint which we affirmed in the equity case was that no specific charge was made against the pastor, either of omission or of commission, averring in what respect his administration of the affairs connected with the church was not satisfactory; that he was not informed whether the complaint referred to spiritual or to temporal affairs ; that he was given no information sufficient to enable him to answer and refute the complaint; at the same moment a vague charge was made, the edict issued, and the sentence pronounced.

It is now claimed that the severe language contained in the bishop’s letter of the 5th November 1871, was not intended to apply to Mr. Stack, but to the congregation of the church of which he was pastor. This is clearly an after-thought. It was addressed to him alone. The complaint was of his administration only. lie alone was forbidden to exercise priestly functions. The sub gram bound him alone. The name of the congregation was not mentioned. Still further, in paragraph YI. of the bishop’s answer under oath to the bill in equity, he “ denies that it was his intention, either expressed or implied in said letter of removal, to close the said church against the contributors, pew-holders and congregation.”

If, then, there was no intention to punish the congregation nor deprive them of any of their church privileges, the only person to whom the language could apply was to the discredited pastor.

It is not conducive to a just administration of the law to refine on any particular word used, but. to consider the spirit and effect of the whole letter. It contained no words of Christian counsel or advice. It is true, it gave the disgraced priest the liberty of calling on the bishop, who promised to inform him of his further intention.

It is, however, said, a right of removal exists in the bishop. Removal does not mean suppression or silence. As we said before, Mr. Stack “ was not only deprived of his right of property as pastor of that particular church; but he was also prohibited from exercising any priestly functions as a means of support elsewhere. The literal reading of the order forbade the exercise of such functions in Williamsport. Inasmuch, however, as he had been assigned to no other parish, the effect was to close the door of every parish against him.”

A portion of Statute No. 8 of - the Synod of Philadelphia of 1842, page 19, as given in evidence on the trial, declares : “ And lest, with offense to the faithful, and contempt of the episcopal authority, priests who have received their letters dismissory from us or have been suspended or deprived of the pastorate, charge or possession, he should again undertake sacred functions in this diocese without our license, we prohibit under pain of suspension to be incurred ipso facto, against a priest of this kind, although he be afterwards received into another diocese, undertaking any sacred function within this diocese, whether in the churches of seculars or regulars or any where else without our license or permission.” At the time of the'adoption of this statute Williams-port was within the diocese of Philadelphia, and the statute does not appear to have been repealed. It indicates the pecuniary loss sustained by the plaintiff.

It is conceded that the rules and discipline of the church, the cause of religion and the good order of society justly authorize the bishop to remove a priest’from his charge for cause, and to transfer him from one parish to another as he may deem proper. O’Hara’s Appeal, supra. But when the attempted removal is under circumstances reflecting on the priest’s character and affecting his property in his profession, he is entitled to notice of the specific cause of complaint, and to an opportunity for refuting the charge. Without such notice, the removal is wrongful. The Minister of St. Mark’s Evangelical Church of Butler v. Kopp, not reported; McAuley’s Appeal, 27 P. F. Smith 397 ; Kerr’s Appeal, 8 Norris 97; Brown v. Hummel, 6 Barr 86.

In the bill filed by plaintiff, paragraph VII. he declared he ■was not aware of any act done or of anything left undone by him in the in the administration of the affairs connected with the Church of the Annunciation, by reason of which ecclesiastical censure or punishment could justly be imposed; and that no such act or thing had been designated or made known to him. In the full answer of the bishop he does not deny this averment, nor does he charge any spiritual or temporal maladministration. In paragraph VII. of his answer he avers, inter alia, “that the said letter of removal and the removal in fact of the said complainant from his charge was not' of the nature of ecclesiastical censure or punishment.” He further proceeds to deny that the removal is unwarranted by the law of the Catholic Church or is contrary to the law of the land, and avers the act was one of ecclesiastical discipline authorized by the church, and “ not within the jurisdiction of civil authority.” This last averment sharply presents the real issue in the case. It .is useless by any ingenious argument to cover it up or to avoid it. Are the civil courts powerless to intervene to protect rights of property when an attempt is made by any church organization, to strike them down?

If such be the case, then the language of the 9th section of the Declaration of Eights, which declares that one cannot be deprived of life, liberty or property unless by the judgment of his peers, or the law of the land, is of no force.

In the former ease the bishop’s views were not sustained by the court below. We affirmed the decree, thereby subjecting him to costs as fully as the court imposed them on him. If he has succeeded in the present case in showing that in fact cause for dismissal or removal did exist, although not previously charged, it should go in mitigation pnly of damages and not so operate as to bar the right of action. The evidence of an intention to transfer the plaintiff to another parish is very meager and unsatisfactory. The one he named was not vacant; besides, the congregation there was so small that to accept it, if not filled, would have been understood by the entire priesthood as a species of degradation and punishment. When this idea was stated by the plaintiff to the bishop, the latter answered he deserved the punishment, “ because you are too proud.” This was an admission of an intention to punish the plaintiff, not for any of the causes alleged on the trial, but by reason of his being proud only.

In one sense the plaintiff was removed.' As if the occupant of a house is put out and his goods thrown into the street. When no other place is provided for him he is simply dispossessed. The plaintiff was upt only dispossessed; but the strong sentiment and power of the church barred the door of every other church against him. We would sustain the 11th, 12th, 18th, 14th and 15th assignments, and such parts of the others as are in conflict with this opinion. The affirmance of this judgment is fraught with mischief that strikes at the very foundation of our civil government. It is the recognition of an authority as superior to the organic law of the land. In questions of property, all sectarian bodies must be held in sub- • ordination to civil authority.

Ecclesiastical opinions on amovability do not agree. We will not now review them, nor refer to some of the nice distinctions made. We prefer to adopt those views which are in harmony with the constitution, and with the genius and spirit of our institutions, and by which alone property can be duly protected.

Justice Gordon also dissents from the judgment, and concurs in this opinion.

* 14 Norris 220; 9 W. N. C. 145.