54 Mo. 353 | Mo. | 1873
Lead Opinion
delivered the opinion of the court.
This controversy is between the members of two local church organizations, each styling itself the first Presbyterian church of St. Charles, and grows out of the'action of the general assembly (O. S.) of the Presbyterian church, dissolving the Presbytery of St. Louis, and which was under review in The State ex rel. Watson vs. Farris, 45 Mo., 183. The action is for the recovery of the church building, parsonage and grounds.
The church was organized in 1818. The lot upon which the buildings are situate was obtained of the town of St.
It is unnecessary to refer in detail to the unhappy controversy that has resulted in the rival organizations that claim the property involved in this suit. .The leading facts are Stated in the State ex rel. Watson vs. Farris, supra, and it is now sufficient to say that the defendants compose the majority of the congregation, and adhere to the presbytery of St. Louis, sought to be dissolved by the ipso facto ordinance of the General Assembly, and the plaintiffs, composing the minority, and desiring to retain their connection with the Gen
The plaintiffs seem to suppose that the question controlling the rights of the parties to this suit was decided by us in the State ex rel. Watson vs. Farris, but they mistake the scope of that decision. The action of the General Assembly there considered was purely ecclesiastical, and the power in controversy depended upon ecclesiastical action merely. As the highest legislative and judicial power in á centralized church, it had but exercised its ancient prerogative in making and unmaking presbyteries. They were its constituent bodies. The expediency or even the right to exercise such a power over them was an ecclesiastical question which the Assembly was competent to decide. Yacancies in the board of trustees of Lindenwood college were, by the terms of its charter, to be filled by a presbytery in connection with the General Assembly. To fill such vacancies by any other presbytery would be a violation of the charter. This provision was a designation -of the body that should possess the power of appointing trustees, and indicated the relations of the body to which the founders of the charity would entrust its administration. The confidence and trust was rather in
Nor do I understand, as seems also to be assumed, that the action of the General Assembly referred to, either deposed or excommunicated the clergymen composing the St. Louis Presbytery, or that it attempted to dissolve or in any manner affect the local churches in connection with it. An attempt was made to dissolve the presbytery, and its connection with the assembly was actually sundered, but. the ministers remained ministers, and the churches remained intact. The clerical character of the former, and the organization of the latter are as complete as before the action of the assembly. Hence, when the defendants are spoken of as being out of the church, as having left the church, etc., nothing more is meant than that the presbytery, under whose care they have always been, is no longer in connection with the General Assembly. I have not learned that the Assembly ever attempts to depose a minister, except upon trial or appeal, or to deal directly with judicatories lower than presbyteries. They, and not the churches or ministers, are its constituents.
In the case before referred to (State, &c. vs. Farris), we considered the extent to which we will go in passing upon
It is not pretended that the property in dispute is held under any express condition of subordination by the cestui que trust to any church judiciary. So far as the conveyance is concerned, no one would know to which of the numerous branches of the Presbyterian church this congregation belonged, or whether the name was not used with reference to its internal organization, rather than its subordination. So then, if we find the condition at all, it must arise from the fact that, from the beginning, it was in constant subordination to some presbytery which was a constituent of the General Assembly .y/
The authorities bearing upon the right of local congregations to control the property held by them or for their use, are so numerous and sometimes apparently conflicting, that in order to know what principles maybe considered as settled, I deem it necessary to consider a few of them more at length than is ordinarily admissible.
The case of The Commonwealth vs. Green, 4 Wharton, 531, can only be treated as authority in regard to the power of the General Assembly of the Presbyterian church over its synods and presbyteries. The power, the exercise of which
Soon after Commonwealth vs. Green, the case of Presbyterian Congregation vs. Johnston, 1 Watts and Serg., 9-57 came before the same court, in which the rights of local congregations were more particularly considered. In 1785, the proprietaries of Pennsylvania conveyed to trustees for the use of the religious society of English Presbyterians in York, a lot as a site for a house of worship and cemetery. Before receiving the deed the church had been organized and was under the care, first of the Donegal Presbytery, and afterwards of the Presbytery of Carlisle, which latter body became one of the constituents in the subsequent organization of the general assembly. The church continued under the Carlisle presbytery until the great schism in 1837, when, upon the adherence of said presbytery to the Old School, the congregation severed its connection with it. A minority withdrew, organized regularly, submitted to the presbytery, and sought to eject the majority from the church property, brrt the court held that' there was no implied condition in the original grant under which the majority would forfeit their interest in the trust by the course pursued. In giving the opinion, Judge Gibson distinguishes it from the case where a majority of a church might seek to carry it over to a distinct denomination, intimating that in such case there might be a breach of an implied condition in the compact of association, but as the New School body was as really Presbyterian as the old, there was only a change of connection as regards different branches of the same denomination.
In Sutton vs. Trustees, &c., 42 Pa. St., 503, a congregation
The courts of New Jersey have often had the general subject before them, .and have held that local church organizations not congregational in principle, are subject to the law of the general organization. The case of Den vs. Bolton, 7 Halst., 206, so.often cited, was an action of ejectment. The title to property held for the use of a Dutch Reformed church oí Bergen county, was vested in the ministers, elders and deacons for the time being, as trustees. A party had seceded from the general body, and the ministers, elders and deacons of this particular church renounced their dependence upon their old classes and synod, and united with the seceding party. The classes from which they had separated cited them to appear and answer charges. They refusing to do so, the case was heard, they were all deposed, and a new election ordered,which was held by that portion of the church adhering to the whole organization. The court held that the proceedings against the old officers, and the election of the new ones were regular, that the latter became the legal trustees and were entitled to possession. Den vs. Pilling, 4 Zabr., 653, was also an action of ejectment. The American Primitive society (Methodist) of Patterson was subject to the general conference, but the majority seceded from it and -refused to obey its orders. The conference ordered anew election of trustees, who were chosen by the adhering minority and brought suit for possession. The cause went against them, upon the ground of irregularity in the removal of the old trustees and election of the new ones, but the court held that the society was subject to the general conference, notwithstanding the subjection was not stipulated in writing, that their connection with the ecclesiastical body having rule over them could be inferred from facts connected with their organization and continued relations. In these two cases, the only question before the court, and really decided
Hendricks vs. Leecow, 1 Saxton (N. J. Chy.), 577, involved the right of the orthodox and Hicbsite Friends to the control of a certain school. The school was established by the Chesterfield-Preparation meeting, and the trustees were to be chosen by such meeting. In the Society of Friends there is a strict subordination by the preparative to the monthly, by the monthly to the quarterly, and by the quarterly to the yearly meeting. The Hicksite members of the yearly meeting of Philadelphia, dissatisfied with the proceedings of the meeting of 1827, called a new one for 1828, to be held one week before the regular time. It resulted in a division of all the quarterly, monthly and many of the preparative meetings, especially the one at Chesterfield, each party claiming to be genuine. The court sustained the orthodox yearly meeting and the meetings in subordination to it, as in the regular succession both in organization and in doctrine, and have held that the orthodox preparation meeting of Chesterfield, although a minority, had the sole right to choose the trustees.
The chancellor (Walworth) in Gable vs. Miller, 10 Paige, 619, decreed possession of church property in favor of trustees elected by a minority of a German church in New York city, who adhered to the Dutch Reformed classes and synod, against the trustees of the majority, who had employed ministers in fellowship with the German Lutheran church. He reviews at length the history of this organization, shows the distinctions in the theology of the Lutheran and Calvinistic churches of Germany and Holland, and finds that the property was held in trust for worship by a church and ministry in connection with the Dutch Reformed church, and for doctrines recognized by its standards. Upon appeal, the court of errors, (2 Denio, 568) reversed the decree, principally upon the construction of the trust, and held the church to be independent,
The case of Robertson vs. Bullions, 9 Barb., 64, was heard before the Supreme Court, and the trustees of the religious corporation wer;e prohibited from employing a minister who had been deposed by the superior church judicatory. The trustees acquiesced, but the decree not going far enough to suit the petitioners, they took the case to the court of appeals, and it is reported in 11 New York, 243. The court affirmed the judgment so far as appealed from, and in two very clear opinions show that the judgment against the trustees would have been reversed had they also appealed. The judges based their opinion upon the fact that no conditions were ex
The case of Smith vs. Nelson, 18 Vt., 517, was a chancery proceeding to compel executors to pay over a trust fund. It 'appeared that the general synod of the Associate Presbyterian church had dissolved the presbytery of Yermont. and remanded its members to another presbytery, which deposed certain ministers. The dissolved presbytery, with other ministers sympathizing with it, formed a new synod, and recognized the deposed ministers. The Associate congregation of Ryegate had been under the care of the Yermont presbytery, and the majority retained a minister that had been thus deposed, while the minority, seceding, sustained the action of the synod, and claimed to be the true Associate Congregation of Ryegate. Before these difficulties, one Nelson had bequeathed a sum of money, “ as a donation to the associate congregation of Ryegate, to be placed under the direction of the trustees of said society, and the interest thereof to be paid to their minister forever.” The executor had paid the legacy to trustees of the minority, who refused to pay the interest to the deposed minister, retained by the majority; but Chief Justice Williams, in an elaborate opinion, held that he was entitled to it, and that the only inquiry to be made was whether the society had a minister chosen by the majority, and regularly ordained over them. He reviewed the ecclesiastical proceedings that had caused the schism, pronounced them irregular, and held that the local society .was not bound by them.
In Ferrarea vs. Vasoncelleo, 23 Ill., 456, and 27 Ill., 237, a
There are many other interesting cases where the rights of local congregations are involved, among which are Trustees &c. vs. Seaford, 1 Dev. Eq., 453; McGinnis vs. Watson, 41 Penn. St., 9, and Gibson vs. Armstrong, 7 B. Monroe, 481. But they differ so much in their controlling facts from the one at bar, that they throw but little light upon it. Those herein specially referred to, are whei;e the property was held like that belonging to the St. Charles congregation, and I have made no allusion whatever to cases where the organization was based upon congregational principles.
In all the cases we find it, first, everywhere taken for granted, and must necessarily be so under our system, that upon matters purely ecclesiastical not affecting property rights, the decisions of the proper church judicatories are conclusive upon civil tribunals. They will neither inquire into their fairness, nor question their accuracy.
But, thirdly, in regard to the right of the local church to hold the church property under a change in ecclesiastical relations, where no condition of subjection to or connection with any particular general organism is expressed in the grant or others wise, but where such church is in fact and by its constitution a constituent part of a general body, and is dependent upon and under the control of the higher judicatory of that body, the decisions as we have seen, are not uniform. In many of the opinions it is held that in such cases it ought to be presumed that the funds were invested upon the implied condition of its continued adherence to such relation, and that a like consequence should follow a voluntary secession as if the condition were express. Other opinions, however, hold that the local organization, whether a corporation or otherwise, may use the property for the general purposes for which it is held, without being fastened to any particular denomination or branch of a denomination.
The case at bar comes under the last class of cases. The congregation of the First Presbyterian church of St. Charles is entitled to the use of this property, as we have seen, upon no express condition in relation to its ecclesiastical connection, although in fact it has never had but one such connection. But it does not become necessary for us to decide which of the views above indicated is correct, whether there is an implied condition of adherence to such connection or not, from the
We have seen that in the Presbyterian church the general assembly may cut off or dissolve presbyteries. But I have never known a case in any civil court, where it has been held that a resolution of a high ecclesiastical judicatory cutting off a lower one, whether by direct expulsion or conditional dissolution like the ijpso facto ordinance, operates as a confiscation of the property of the local congregation held for their own use with no special trust, in case they do not withdraw from such exscind* e'd body, or that it operates as a transfer of such property to-new organizations created under authority of the exscinding power. It may be for the peace and good order of the church that such a power be lodged in the general representative body, —of that we can know nothing — but to suppose that it carries with it the power to thus change the titles to all the property of the local congregations would give it a scope and effect hitherto .undreamed of. Without citation or hearing, without even the form of judicial investigation’, the general assembly, assuming upon common fame the existence of certain local irregularities, as in 1837, or, desiring to punish the authors,and
There have been many schisms in Presbyterian and other churches similarly organized, that have arisen from the exercise of extraordinary powers by the central body, but local church properties have, so far as I know, remained undisturbed. The exscinding ordinance of 1837, or as Judge Gibson called it in Commonwealth vs. Green, the ordinance of dissolution, cut off four among the heaviest synods of the church, each containing many presbyteries, and provided for the organization within their bounds of new churches and presbyteries in sympathy with the majority in the assembly. Among the multitude of churches thus cut off, holding the most valuable church properties.in central and western New York and northern Ohio, I have not learned that a single attempt was made to transfer such property to the adherents of the general assembly. Some attempts were made ontside the limits of the ex-scinded synods against those churches that, from sympathy with these synods, left the presbyteries that adhered to the assembly, but as in Commonwealth, &c. vs. Johnston, supra, they uniformly failed.
It may he claimed that under this view the property of the local church may be wholly diverted from the purpose of its original grant; that when the presbytery itself becomes diseased, there is no other remedy but to cut it off. I may not say what other remedies are provided, but I can imagine that in a church that has played such an important part in the history of constitutional liberty in Europe some mode less summary is known, and usually followed, and that factious and disorganizing men could be reached hy methods analogous to trials and judgment in civil tribunals, and to amotions or disfranchisement in corporations.
The judgments below are therefore reversed. The other judges concur.
A re-hearing of the case was granted, and upon the re-hearing the following briefs of counsel were presented and the following opinion rendered by the court:
delivered the opinion of the court.
This was an action in the nature of a bill in equity, brought by the. plaintiffs in the St. Charles Circuit Court, claiming to be the only beneficiaries of certain church property, consisting of a house of worship and a parsonage in the city of St. Charles. They allege that they alone constitute the congregation of the First Presbyterian church of St. Charles, and that the defendants, who at one time formed a part of the congregation, had voluntarily withdrawn from the church, but still held the property, to the exclusion of the plaintiffs. The defendants deny all the allegations of the petition, and charge the facts to be that they and the plaintiffs together constituted the congregation entitled as beneficiaries to the use of the church, np to the time of the dissensions growing out of the action of the General Assembly in its deliverances on the subject of slavery and “ loyalty.” They deny that they have prevented the plaintiffs from the occupancy of the church jointly with themselves, and charge that the.plaintiffs have voluntarily withdrawn and formed an independent congregation. They deny that this independent organization, as such, are beneficiaries entitled to the property in dispute.
The leading facts are, that in the year 1818, a Presbyterian congregation was formed in the town of St. Charles, called and known as the First Presbyterian church of St. Charles. This organization, according to the Confession of Faith and Form of Government of the Presbyterian Church, consisted of persons who had been' baptized into the Church and had united together for religious worship. The judicatory of this church was a pastor and two ruling elders, called the session.
The deeds under which the property in dispute is held, conveyed it to trustees, “ in trust for the congregation of the First Presbyterian Church of St. Charles.” There were two deeds ; one made in 1833, and the other in 1857, confirming the title conveyed by the first deed. There is nothing in either deed which requires that the congregation should be under the control of any superior judicatory. The facts, however, show that this congregation continued in connection with the St. Louis Presbytery and the General Assembly (Old School) until it was exscinded in the manner hereinafter set forth.
From the commencement of the late war of rebellion, and during its prevalence, the General Assembly (Old School) at its annual meetings made deliverances on the subject of slavery and loyalty, declaring the obligations of the church in this regard. A large minority of the church, in different Sta tes considered these deliverances of the General Assembly unconstitutional ; that is to say, that the church, as a church, according to its written Confession of Faith and Form of Government, had no authority to make deliverances on purely political and civil matters. This minority protested against these deliverances, and issued a paper called the “ Declaration and Testimony,” inveighing against the conduct of the majority. This paper gave great offense to the majority, and they took steps for punishing the offenders, which resulted in an ecv pa/rte decree rendered by the General Assembly, without the form of trial, declaring in effect that the
Twenty-two members of the congregation of the First Presbyterian church of St. Charles, being the plaintiffs in this suit, formed a new congregation, with a minister and ruling elders, and betook themselves to another place of worship, leaving the remainder of the congregation, consisting of forty-nine members, a minister and ruling elders, in possession of the church and parsonage. This action was taken by the minority because the majority had expressed their adhesion to the doctrines of the paper known as “ The Declaration and Testimony.” Both of these congregations sent their' respective representatives to the St. Louis Presbytery, which had been formed on the plan directed by the General Assembly by excluding the “ Declaration' and Testimony members.” This presbytery received the delegates sent by the plaintiffs and excluded those sent by the defendants, and made,a decree to the effect that the plaintiffs were the real and only congregation composing the First Presbyterian Church of St. Charles, and that the congregation made up of the defendants was not the First Presbyterian Church of St. Charles, or any part of it.
The- Circuit Court decreed the property to the use of the plaintiff, excluding the defendants from the same. The defendants appealed to the Sixth District Court, which affirmed the judgment of the Circuit Court, and from, this judgment of affirmance the defendants appealed to this court. At the March Term, 1871, this court, then consisting of three judges, reversed the judgments of the District and Circuit Courts, Judge Bliss delivering the opinion of the court. A motion was made for a re-hearing, and this motion was sus
■ It is proper to state that the court, under a new constitutional amendment, has been re-organized, with two additional judges; and that, as now organized, it consists of five judges, only one of whom was on the bench when the first opinion was delivered. Although we concur in the result arrived at by the court in its former opinion, the importance of the principles involved demauds that the court, as now organized, should briefly present the grounds of its assent, and the points passed on by us.
1. At the threshold of this inquiry, we are met with the startling proposition that, in cases like this, the judgment or decrees of ecclesiastical judicatories are final and conclusive, and that the civil courts have no authority in the premises, except to register these decrees and carry them into execution. It is to be regretted that loose expressions, by elementary writers, and also by judges in delivering their opinions, have given too much foundation for this false doctrine. Even the Supreme Court of the United States, in Watson vs. Jones, 13 Wallace, 679, gives prominence to this idea by making it the chief foundation of their opinion. That court seemed to think the judges not sufficiently learned in ecclesiastical law to pass on such questions, and that the ecclesiastical courts, being better qualified than themselves, ought to be allowed to be the exclusive judges.
The civil courts are presumed to know all the law touching property rights; and if questions of ecclesiastical law, connected with property rights, come before them, they are compelled to decide them. They have no power to abdicate their own jurisdiction and transfer it to other tribunals. If they are not sufficienly advised concerning the questions that arise, it is their duty to make themselves acquainted with them, in all their bearings, and not to blindly register the decrees of tribunals having no jurisdiction whatever over property.
A deposed minister or an excommunicated member of a church, cannot appeal to the civil courts for redress. They can look alone to their own judicatories for relief, and must abide the judgment of their highest courts as final and conclusive. But when property rights are concerned, the ecclesiastical courts have no power whatever to pass on them so as to bind the civil courts. If they expel a member from his church, and he feels himself aggrieved in his rights of property by the expulsion, he may resort to the civil courts, and they will not consider themselves precluded by the judgment of expulsion, but will examine into the case to see if it has been regularly made upon due notice, and if they find it to be duly made, they will let it stand, otherwise they will disregard it, and give the proper relief. In most cases, no doubt, the judgment will be found to be sufficiently regular to fix the status of the expelled member and to warrant the civil courts in denying the desired relief.
2. This controversy had its origin in the deliverance of the General Assembly regarding slavery and loyalty. If this venerable body had no authority in their ecclesiastical capacity, to make the deliverances in question, the subsequent acts of the church judicatories growing out of them, must be treated as nullities, at least as far as property rights are concerned.
It must be conceded on all hands, that questions of slavery and loyalty are merely political and civil, and not ecclesiastical or religious in their nature; and yet it is true as a matter
Had these judicatories any power in their ecclesiastical capacities to do this is the question raised by this record for us to decide. The Presbyterian Church has always been considered, and no doubt is, one of the orthodox Protestant churches, and as such forming a part of the spiritual kingdom of Christ upon earth. Christ authoritatively declared that His kingdom was not of this world. His disciples, as such, owe allegiance alone to Him as the great Head of the Church: As citizens of a republic or subjects of a monarchy or empire, their civil allegiance was due to their respective governments. But the kingdom of Christ is wholly independent of civil governments. This spiritual kingdom has existed and continued to flourish for almost nineteen centuries. While civil governments of all kinds have arisen and lived for a season and then crumbled and faded away, the kingdom of Christ has stood amidst the throes of revolutions; and in the sure hope and faith of its subjeets, it will stand till the end of time, and spread throughout all the regions of the earth, until every knee shall bow in humble submission to His holy will. As the Presbyterian Church is a part of this spiritual kingdom, it had no right as such to interfere in civil matters. But the Presbyterian Church also has. a written constitution which their ecclesiastical judicatories have no authority to violate. They are as much bound by the provisions of this constitution as the supreme law of the church, as the State and Federal governments are by their respective constitutions.
The written constitution of the Presbyterian Church contains this section: “IV. Synods and councils are to handle or conclude nothing, but that which is ecclesiastical; and are not to intermeddle with civil affairs, which concern the commonwealth, unless by way of humble petition in cases extraordi
In explanation of this section, which is found word for word in the Confession of Faith of the Westminster Assembly of divines, the Rev. Robert Shaw, whose work is considered as a standard authority, says:
“While our Confession denounces any Erastian interference in matters purely spiritual and ecclesiastical, it no less explicitly disavows all popish claims, on the part of the synods and councils of the pliurch, to intermeddle with civil affairs unless by way of petition in extraordinary cases, or by way of advice when required by the civil magistrate. Our reformers appear to have clearly perceived the proper limits of the civil and ecclesiastical jurisdiction, and to have been very careful that they should be strictly observed. The power and policy ecclesiastical,’ say they, is different and distinct in its own nature from that power and .policy which is called civil power, and appertaineth to the civil government of the commonwealth; albeit they be both of God and tend to one end, if they be rightly used, viz: to advance the glory of God and to have godly and good subjects. Diligence should be taken chiefly by the Moderator, that only ecclesiastical things be handled- in the Assemblies, and that there be no meddling with anything pertaining to civil jurisdiction.’ Church and State may co-operate in the advancement, of objects common to both, but each of them must be careful to act within its own sphere, the one never intermeddling with the affairs that properly belong to the province of the other.” (See Exposition of the Confession of Faith, p. 337.)
The meaning of the section commented on by Rev. Robert Shaw seems to be sufficiently obvious from its own language, but this authoritative exposition puts at rest any possible doubt as to its true intent. In my judgment it prohibited the General Assembly from making the deliverances under review; and they are therefore nullities so far as property rights are concerned. In pronouncing upon these-deliver
3. But if this act of the General Assembly and the exscinding decree pronounced against the defendants, be treated as within the scope of ecclesiastical authority, such excision surely ought not to have the legal force of cutting off the property rights of the defendants. The penalty decreed against the offending ministers by the General Assembly did not ex. communicate them as church members, nor depose them from their ministerial office. They were declared to be incapable of sitting in any church judicatory higher than the session. But they still held their commissions under which they might “ Go into all the world and preach the gospel,” receive members into the church, and administer the usual rites to that end, and form congregations of Presbyterians for religious worship.
The exscinding decree against the defendants, cut them off in a body from the higher judicatories of the church, but did not excommunicate them, nor in any manner touch them as individual members of the church or congregation. They occupy-in that respect precisely the same attitude they did when they joined the church and made up the congregation. At the time the exscinding decree was pronounced they undoubtedly were beneficiaries entitled to the property in dispute. When this congregation was cut off, their property was cut off with them. If they had money in their treasury to pay their minister or other expenses of the church, that money was cut off with them, and still remained their prop-" erty subject to their disposition; and in like manner the church edifice and parsonage remain theirs as they were before the excision. If this ipso facto self-executing decree had the effect of destroying existing property rights, it could only do so by overriding the plain provisions of the bill of rights of our State and Federal constitutions, which declare in substance that no person can be deprived of his property without due process of law; and that private property cannot be
I have not considered it necessary to cite adjudged cases in support of the points here discussed. On questions growing out of church dissensions, the authorities are numerous and contradictory and it would be a useless task to try to reconcile them as each depends so much on its own facts and surroundings. Judge Bliss has referred to the main leading cases in his opinion and I am satisfied with his review of them. But Watson vs. Jones, supra had not been deter
In the first place this case originated in Kentucky, and was pending in the courts of that State under the name of Fulton vs. Farley, which had been decided by the Court of Appeals under the name of Watson vs. Avery, 2 Bush., 332. The Louisville Chancery Court had possession of the property in dispute, and it was in the hands of a receiver of that court. The Court of Appeals of Kentucky, had also decided the case of Gartin vs. Penick, 5 Bush., 110, and passed on the principles involved in both of these cases. And yet the Supreme Court of the United States, two judges dissenting and the chiefjustice not sitting, did not seem to feel any embarrassment in assuming jurisdiction, of the case pending in the State Courts and to overrule, two well considered opinions of the. Kentucky Court of Appeals. (Watson vs. Avery, 2 Bush., 332, and Gartin vs. Penick, 5 Bush., 110.) I have always understood the law to be that when two courts have concurrent jurisdiction, the one which first assumes jurisdiction has the sole right to decide the whole controversy. Any other rule would lead to insuperable difficulties and conflicts. If the Court of Chancery at Louisville, had possession of the case, as it undoubtedly had, how could the Circuit Court of the United States take jurisdiction of the same case, simply because some of the beneficiaries lived in another State ? The residence of the parties is sufficient to give the Federal courts jurisdiction where nothing intervenes to prevent it. But can a Federal court oust the jurisdiction of a State Court which has' already attached ? Can jurisdiction be taken by halves or parts? Must it not go to the whole controversy in courts of chancery, before it can attach at all ? IIow can a decree rendered in a Federal court in this sort of case nullify the decree of the State Court? It can only be done by blotting out what little remains of the vestiges of State rights.
But if the Federal Supreme Court had any jurisdiction, it was certainly not superior to the Court of Appeals. In the
For these reasons I do not consider the case of Watson vs. Jones sufficient authority to control the action of this court.
Judgments reversed and petition dismissed.
Dissenting Opinion
dissenting.
I am unable to distinguish this case from Watson vs. Farris,