Carlson v. Fox

Jenkins, Presiding Justice. The petition as brought shows in effect that the supreme authority of the church rested in the congregation, and that the congregation had provided by its constitution that a board of deacons elected by the congregation, who together with the pastor constituted an executive committee, should hold and disburse the funds belonging to the church, and that the petitioners had been duly elected by the congregation as deacons; but that a board of elders appointed by the pastor had usurped the function of the duly elected deacons, by taking charge of the funds belonging to the church and refusing to permit the board of deacons to exercise its functions. We think that the rights of property are thus shown to be involved by the allegations of the petition; that the church is entitled to hold and expend its funds according to the methods and through the instrumentality constituted by it; and that the seizure of the church funds by unauthorized parties constitutes a conversion, irrespective of the manner of its expenditure. While it is not alleged that the funds were being dissipated or perverted for improper uses and purposes, such an allegation is unnecessary as against an alleged usurper of authority. Were the petition against persons duly constituted to hold and expend the funds, the rule would be different, and in such an event it would be necessary to show that the proper custodian was expending the funds for purposes “utterly variant from that to which it was originally devoted.” Mack v. Kime, 129 Ga. 1, 21 (58 S. E. 193, 24 L. R. A. (N. S.) 675). Courts being extremely reluctant to interfere in the conduct of religious institutions, if the petition had shown that this case involved a controversy between factions of the church as to who represented the consensus of its supreme governing authority, we would be quick to hold that the controversy should be submitted to its own supreme authority for determination. So far as the petition shows, such is not the case, but according to the allegations the alleged usurpers do not pretend to be acting under any power conferred by the supreme authority of the church. *401 No. 14946. September 13, 1944. Rehearing denied October 7, 1944. As to the right and duty of deacons to protect the trust conferred upon them and assumed by them, see Bates v. Houston, 66 Ga. 198 and McCluskey v. Rakestraw, 167 Ga. 199 (144 S. E. 761). For the reasons above stated, and since the other grounds of the demurrer appear to be without merit, we are of the opinion that the court did not err in overruling the demurrer, and that its judgment should be Affirmed. All the Justices concur, except Griee and Wyatt, JJ., who dissent. *406 Wright, Willingham & Fullbrighl, for plaintiffs in error. Mrs. Charles Camp and James Maddox, contra.