Weber v. Zimmerman

| Md. | Oct 21, 1864

Bowie, C. J.,

delivered the opinion of this Court.

The Act of Assembly passed at the January session 1858, ch. 285, materially changed the law governing proceedings in cases of mandamus in this State. That statute is embodied in the Code, Art. 59. Under the provisions of that article of the Code, this cause was instituted and decided below, and in disposing of this appeal, this Court must, under the 12th sect, of the 5th Article of the Code, confine itself to the questions raised in, and decided hy the Superior Court. These are presented hy the bills of exceptions, two of which were taken to the rejection of evidence offered by the defendants, and the third was taken to the refusal by the Superior Court to grant the two prayers of the defendants, and also to the instruction given to the jury.

The third exception will first be considered. The Court’s instruction to the jury asserts that the notice of the meeting of the congregation to he held on the 13th day of January 1864, given in evidence, was not such a notice as was required hy the constitution of the congregation, and consequently that meeting is to be considered as irregularly convened, and is to be treated as invalid, and that its proceedings and votes are not binding upon the congregation or the petitioner.

By the constitution, chapter 7, sec. 12, it is provided, that “All meetings (for business) of the congregation must be announced publicly in the Church (before the congregation) at least ten days previously, with the distinct declaration of the object (purpose, design, aim,) of the same (meeting.)”

The new constitution, ch. 9, art. 9, contains a similar provision, in these words: “Every meeting of the congregation, with .the reason for calling the same, must be announced ten days previously, publicly from the pulpit.”

On examining the notice given to the congregation, as stated in the bill of exceptions, this Court concurs in the opinion expressed by the Superior Court, that it is altogether insufficient, in not stating the object of the proposed meeting.

The petitioner was pastor of the Church, which was incorporated, under and in virtue of the Act of Assembly of 1802, cb. 111.' By that Act the pastor is constituted a corporator.

Independent of the positive provisions contained in the constitution of the Church, above cited, it would seem, from the authorities, that in order properly to exercise the right of amotion of a corporator, notice must be given to all the members of the corporation, “that it is intended to consider the question of removing the particular person.” The authorities on this subject will be found collected in 2 Bacon’s Abr., 462, 463. We refer also on this point to the cases cited by the appellee in argument.

Without, however, discussing the general principles governing this subject, it will suffice for the present case to say, that by the constitution of this society it was necessary that notice should be given to the congregation of the object of the proposed meeting, and that according to the evidence, as contained in this bill of exceptions, in the notice which was given of the proposed meeting of the 13th of January, no intimation whatever was given that' it was intended to consider the question of removing the pastor.

Entertaining the opinion, that the law of the case was properly given to the jury in the Court's instruction, it follows that there was no error in rejecting the first prayer of the defendants. And the second prayer of the defendants was also properly rejected for the same reason. Besides, it has been settled by repeated .decisions of this Court, that such a prayer is too general and indefinite.

We concur also in the decision by the Superior Court, of the questions of evidence presented by the first and second bills of exception. The evidence, it seems to us, was clearly inadmissible under the issues joined. Even if it be conceded that the committee of the Synod had jurisdiction and authority to investigate the charges against the petitioner, in the manner stated in the evidence, — on which point however, we do not mean to express an opinion, — their decision or award did not pronounce the dismissal of the petitioner from his functions as pastor, but was advisory only to the Church council. The power of dismissal resided in the congregation, to be exercised in accordance with the rules and regulations prescribed in the constitution of the Church, which, according to the evidence, were not observed in this case, for want of proper and sufficient notice of the meeting convened for that purpose.

(Decided October 21st 1864.)

Many of the questions presented in the appellant's brief, and argued at the bar, we have deemed it unnecessary to decide, because we have considered, they are not properly before us on this appeal. The case comes before us on the bills of exceptions only, no question having been made in the Court below, either in the pleadings, or by motion in arrest; and finding no error in the decision of the Superior Court, the judgment will be affirmed, and a peremptory writ ,of mandamus ordered.

Judgment affirmed and mandamus ordered.