German Evangelical Lutheran Trinity Congregation of the Unaltered Augsburg Confession v. Deutsche Evangelisch Lutherische Dreieinigkeits Gemeinde Ungeaenderter Augsburgische Confession

Mr. Justice Farmer delivered the ójpiníon of the court: While controversies between factions' of religious societies have frequently been the subject of litigation which has often reached courts of last resort, these controversies have usually arisen out of questions relating to religious beliefs, tenets and modes of worship. The controversy here under consideration involves no question of departure from faith or modes of worship by either of the factions. ■ Both claim, and the proof sustains the claim, that they adhere to the doctrines, tenets and modes of worship adopted by the society at its organization and since then adhered to by it. The religious beliefs and doctrines of the society and the rules for the government of its affairs are set forth at length in a constitution adopted by the members of the society. The constitution provides that “the congregation, as a body, has the supreme power and government in the management of all its inner and outer affairs.” The qualifications of members to vote in the management of the society’s affairs are, that the member must be twenty-one years of age and have subscribed to the constitution. At the time the meeting was held at which it was decided to move the church house from the old site to the village of Crete there were one hundred and seventy-six voting members of the congregation. One hundred and eighteen of them lived in the village of Crete and fifty-eight outside the village. One hundred and thirty-two voting members attended the meeting. Seventy-six voted for the removal and fifty-six against it, the vote being taken by ballot. Ap-pellees in their brief argue that the meeting was not held in accordance with the constitution and rules of the society and that its action was illegal and void. The decree finds that the meeting was “held and conducted in conformity with the provisions of the constitution of said complainant congregation * * * and that such removal was lawfully accomplished.” In our opinion this finding is sustained by the evidence. Besides, appellees have assigned no cross-errors and are in no position to attack the correctness of the findings of the decree. The case, therefore, presents the question whether the minority of an incorporated religious society, where the “supreme power and government in the management of all its inner and outer affairs” is vested in the congregation, can, because of dissatisfaction with the lawful management of the society’s affairs within its constitution and rules, withdraw from the congregation and compel a partition of the church property. The chancellor decreed,—and we think correctly so,— that the trustees of the complainant congregation, and their successors in office, held the church property in trust for the use of members of the, congregation who adhere to the articles of Lutheran faith as prescribed in and by the written constitution of said congregation. This trust required that the property should be devoted to the purposes of teaching the doctrines and observing the forms of worship prescribed by said constitution. A court of equity would not permit a perversion of the trust, and if the disagreement had resulted from a departure of a part of the congregation from the faith and modes of worship prescribed it would have amounted to a forfeiture of their rights in the property, whether they constituted a majority or a minority, and those adhering to the faith would have been entitled to the property. Here, liomever, there is no forfeiture, tor there has, beep no departure from the faith and modes of worship prescribed by the constitution. The members of both factions retain their interest in the property of the society, and the minority refusing to affiliate with the majority and attend divine worship because of the removal of the church, seek to have the property sold and the proceeds divided. , Appellees rely on Ferraria v. Vasconcellos, 31 Ill. 25, and Niccolls v. Rugg, 47 id. 47, to sustain the decree. In both those cases the church property was directed to be sold and the proceeds divided between the factions. In the Ferraría case the religious society was organized, but not ijicorporated, under the name of “The Free Portuguese Church.” It purchased a lot, talcing the deed in the name of individual members of the society as trustees, and erected a house of worship thereon. Before coming to this country the members of the society were members of the Free Portuguese Church in the island of Madeira and were under the jurisdiction of the Free Presbyterian Church of Scotland. Four years after coming to this country and organizing the society they procured a dismissal- from the presbytery of Glasgow and applied to and were received by the presbytéry of Sangamon. This was by the unanimous consent of the congregation and occurred in 1856. A schism arose in the congregation in 1858 relating to the subject of baptism. Some of the members, before coming to this country, had been baptized by the Roman Catholic church and had not received any other baptism. The question arose whether, bn accepting the Presbyteriari, faith, it was necessary for them to be baptized according; to the forms of that church. Some members of the congregation had baptism administered according to the requirements of the Presbyterian church and others refused to do so, believing the baptism they had received according to the forms of the Roman Catholic church was sufficient. The controversy was submitted to the Sangamon presbytery for decision and that organization decided against the validity of the baptism of the Roman Catholic church, but it accompanied its decision with the declaration that as the society had been organized before the presbytery’s jurisdiction had attached, the matter was not of sufficient importance to proceed with disciplinary measures, and Christian forbearance was recommended to be exercised by all the parties. The pastor of the church refused re-baptism, called a meeting of the congregation and submitted a proposition to withdraw from the Sangamon presbytery. The proposition was adopted by a vote of 105 for withdrawing to 101 against it. Thereupon the doors of the church were closed against the defeated faction and the majority faction took possession of the church and its properties and organized a congregation with the former pastor as its head. Efforts were made by the presbytery to settle the difficulties but these efforts resulted in failure. The minority faction thereupon proceeded to form a religious society in pursuance of the provisions of the statute, under the name of “The Free Portuguese Church,” and filed a bill in chancery against the majority faction in possession of the church edifice and property, praying that it be restored to them as the legal owners of the property. The court held the congregation had a right, by majority vote, to sever its connection with the Sangamon presbytery, and that the majority did not forfeit its rights in the property by doing so and neither did the minority adhering to the presbytery forfeit its right, and it was held that the most equitable disposition that could be made was to sell the property and divide the proceeds, which was accordingly ordered done. . The controversy inNiccolls v. Rugg, s-upra, which resulted in a division of the congregation, arose out of a difference of opinion between the members of the congregation as to whether the society should be connected with the old school or new school presbytery. It does not appear from the opinion in that case whether the society was • 1 b v incorporated-or not. It was organized in 1833 as a Presbyterian body > before that denomination divided into the old and new schools. That division occurred in 1838, and the society involved in the controversy attached itself to the new school organization in that year. In 1848 it withdrew its connection from that organization with the consent of the presbytery and joined the old school denomination and so remained until 1865, when a majority of the congregation voted to sever connection with the old school organization and return to the new school, and this was done. The minority, being discontented with the action of the majority, elected trustees and filed a bill claiming the property rightfully belonged to them. The court said there was no abandonment of faith or doctrine which the society was founded to support, by either faction;' that the old and new school branches of the Presbyterian church adhered to the same doctrines and forms of government, and that withdrawing from one presbytery and attaching itself to another by the society was not a perversion of the trust and did not work a forfeiture of the property. The court said: “But inasmuch as the two branches of the church have distinct organizations and as the property has come from both, it is just that the majority shall be permitted to change the church connection without forfeiture, while the right of the minority to remain in the existing relations and retain their portion of the property should be equally recognized.” It was held the trial court properly decreed a sale of the property and a division of the proceeds between the two factions. It must be admitted, we think, that in the cases cited the court went to the extreme limit in exercising its equitable powers in the settlement of a dispute between contending factions of religious societies, but there were facts and circumstances in each of those cases that appealed more strongly to the equitable powers of a court than do the facts and circumstances in this case. The rule announced by this and all other courts of this country, so far as we are advised, is, that courts have no power to pass upon questions of differences between contending factions of a church society unless civil or property rights are involved. They will not interfere to control the exercise of ecclesiastical authority not violative of a civil or property right. (Fussell v. Hail, 233 Ill. 73; Christian. Church v. Church of Christ, 219 id. 503; Runs v. Robertson, 154 id. 394; Schweiker v. Husser, 146 id. 399.) Upon questions arising under the. laws and usages of the church, the decisions of the church organization having power and authority to pass upon them will be accepted by courts as final, unless such decisions plainly violate the laws they profess to administer or are in conflict with the laws of the land. In the case here under consideration we see no grounds for the interposition of a court of equity. By the act of becpming members of the society appellees agreed to the rules provided for its government in temporal affairs, and mere dissatisfaction with the exercise of the authority of the organization does not authorize invoking the supervisory power of the courts. Authority to manag'e the society’s affairs vested in the congregation, and, necessarily, upon any question affecting the management, direction and control of its temporal affairs and property the majority must control. The faction represented by appellant constitutes the majority. It had authority to move the. church site, and that authority was exercised for that purpose in the regular , and lawful manner. It cannot be said to be an abuse of authority, for the new site in the village of Crete is only three-fourths of a mile from the old site, and substantially two-thirds of the membership live in the village. It was not the purpose or intention of the faction represented by appellant to deny appellees any rights or privileges they enjoyed before the removal of the church, but the appellees were invited to continue their membership in the congregation and their worship in the church on the new site and the enjoyment of all their rights in the property the same as they had done before its removal. No change of faith, doctrine, modes of worship or rules for the government of the congregation were involved in the removal of the church to the new site. Both factions remained loyal to the old faith, tenets and modes of worship. The trial court found and decreed that the title to the church property is in the trustees of appellant and their successors in office, in trust for the members of the congregation who adhered to the unaltered articles of the Lutheran faith as prescribed in and by the written constitution of the congregation, and that the appellant faction had committed no act of forfeiture. The grievance of appellees is not that the appellant faction has usurped or acted without authority, but that they do not acquiesce in the government of the society’s temporal affairs in the manner and by the authority which the society itself provided by a written constitution should govern it. The removal of the church site was a question calling for the exercise.of the judgment and good faith of the' congregation for what was to the best interests of the society. Those opposing its removal urged as grounds of opposition that it required the members living in the country to travel three-fourths of a mile further to attend church services. Those favoring the removal urged as a reason for it that the larger portion of the membership lived in the village of Crete, .and that many of the women and children were without conveyances and were prevented much of the time from attending services three-fourths of a mile out in the country. Obviously, which faction was right about this matter is not a question for a court to determine. In Happy v. Morton, 33 Ill. 398, the court said, on page 407: “Courts of equity will exert their powers to prevent a misuse or an abuse of charitable trusts, and especially trusts of a religious nature, by trustees or by a majority of a society having possession of the trust property, but in all cases the trust, and the abuse of it, must be clearly established in accordance with the rules by which courts are governed in administering justice. * " * * There must be a real and substantial departure from the purposes of the trust,—such an one as amounts to a perversion of it,—to authorize the exercise of equitable jurisdiction in granting relief.” A collection of authorities sustaining this rule will be found in Fussell v. Hail, supra, and First Presbyterian Church v. Cumberland Church, 245 Ill. 74. The application of the above rule to the facts in this case makes it clear that the case made by the cross-bill is not of the character courts of equity are justified in taking jurisdiction of. Nothing has been done by appellant to justify appellees in withdrawing from the congregation or refusing to affiliate in worship with appellant. Appellees contend that they have not seceded, and that their object in seeking to build a new house of worship on the old site is to provide a place of worship for the entire congregation. They declare they never can meet for worship in the church in the villag-e with those who worship there unless they “humble themselves by servilely following the other faction into the church at its said new location.” This they are not disposed to do, and ask a court of equity to partition the church property and give them their proportionate share of it. If they are entitled to this relief, the appellant faction, if it had been in a minority on the question of removal of the church building, would have had the same right to have had the property sold and its proceeds divided. Secession may seem a harsh term with which to characterize appellees’ conduct, but what they have done amounts, in effect, to a withdrawal from the appellant congregation and a repudiation of its authority, by whatever name the act may be characterized. Certainly the appellant faction has not seceded. If, under the facts and circumstances of this case, appellees have the right to cause the church property to be partitioned, then a minority disagreeing with the majority in the lawful management of the church affairs, from any cause whatever, may cause the property to be partitioned by a court of equity. A disagreement as to what color the church should be painted, or as to its interior decoration, or as to its heating system, and many other matters of business management not affecting the rights of the parties or the objects and purposes of the organization, would afford ground for asking for a sale of the property and there would be no stability to church organizations. ]To permit this to be done would place church property upon such a precarious basis as to in all probability greatly affect and hinder religious societies in acquiring property and building churches thereon. We think there are some differences between this case and' the Perraria and Niccolls cases, supra. They may be thought to be shadowy and not of a controlling character, but an examination of the cases will show they exist, and under the conditions in those cases, which do not exist in this case, partition of the property was decreed. It was never intended, in our opinion, to lay down a rule in those cases that would warrant the relief asked by and decreed to appellees in this case. Here the society was' incorporated and the management of Its business and temporal affairs was committed by the constitution to the congregation. So long as that authority managed the affairs of the society in a lawful way and in accordance with the constitution, it was not in the power of a minority of the membership to have the property sold and the proceeds divided, any more than it would be in the power of minority stockholders in a business corporation to have the property sold and the proceeds distributed because they were not in accord with the lawful management of the corporation by the majority. No rights of the appellees have been violated in this case. They have__the same right in the property they had before removal of the church building, and no one is seeking to deny to them its enjoyment as fully and to the same extent now as they enjoyed it prior to the removal of the build- , ing. They can avail themselves of these rights and privi- ' leges if they choose to do so, but if they do not, because, as they say, they would be humbling themselves, they must be content to abide by the consequences of their own acts. Irreconcilable differences that authorize partition of the; property mean something more than a mere disagreement l,| about the location of the church house. First Presbyterian Church v. Cumberland Church, supra, is in point. That case involved a controversy over church property that had belonged to the Cumberland church before it was united with the Presbyterian church in 1906. The question" of union between the two denominations was submitted by their respective assemblies to the presbyteries. Sixty Cumberland presbyteries voted for it and fifty-one against. The union was by the respective church authorities declared effected and the Presbyterian church proceeded to assume control and authority over the church property that had previous to the union belonged to the Cumberland congregation. A large number of the members of the Cumberland congregation refused to go over to the Presbyterian church and denied the validity of the union and the right of the Presbyterian church to take possession and control of the property. The court held the merger or union was effected in accordance with the laws and usages of the two church denominations and must be recognized by courts, and the title to and right of possession of the property in controversy, which had before the union belonged to the Cumberland church, was held to be in the Presbyterian church. “In general the factions of a church are not entitled to a partition and division of the property where it is lawfully applied to the purpose of the trust and none of the members are prevented from participation in its use and enjoyment.” (34 Cyc. 1169.) The author of the article on Religious Societies, in the American and English Encyclopedia of Raw, (vol. 24, p. 357,) says a court of equity may decree a sale of the property of an independent incorporated church organization and a division of the proceeds where the congregation is nearly equally divided by irreconcilable differences in matters of faith and doctrine, “but where the property is lawfully applied to the common purpose to which it was devoted and none of the members are prevented from participation in its use for this purpose, the court will not, at the instance of a seceding faction of the congregation, order a partition and division of the property.” In our opinion appellees made no case under the cross-bill entitling them to any relief, and the trial court erred in decreeing a sale of the church property and in not dismissing the cross-bill. We are also of opinion the court erred in not perpetually enjoining appellees from entering upon and taking possession of the old church site and building a church house thereon. Injunction is a proper remedy for the purpose of restraining unlawful interference with the church property. Richter v. Kabat, 4 Am. & Eng. Dec. in Eq. 491; 72 N. W. Rep. 600; I High on Injunctions, (4th ed.) sec. 305. In so far as the decree adjudged the title to the church property to be in appellant and enjoined appellees from the use of the name of the society it is affirmed, but for the error in not dismissing the cross-bill, in ordering a sale of the property and division of its proceeds, and in not making perpetual the temporary injunction restraining appellees from entering into and building a church house on the old site, the decree is reversed and the cause remanded, with directions to the trial court to enter a decree in accordance with the views herein expressed. Reversed in part and remanded, with directions. Cartwright and Hand, JJ., dissenting.