Barna v. Kirczow

Garrison, Y. C. (after stating facts). Although the purpose of the incorporation of this association was to- maintain a place of religious worship, and the use to which it puts its money and property is religious, it is not incorporated under any act regulating religious bodies, and I know of no statutory law of this state relating to religious corporations, or of any church law of any specific denomination or creed, which bears upon the situation presented in this suit. The association is incorporated as an association not for pecuniary profit, and is now regulated by the laws of 1898. P. L. 1898 p. b&2. The pertinent provisions of that act are contained in the fourth section (P. L. 1898 p. J2S et seq.), and are as follows: [201] “The business of the association shall be conducted by the trustees, subject to the by-laws which shall be passed by the members; the trustees shall be elected by the members and shall hold office for one year, or such term as the by-laws provide, and until their successors shall be elected; a majority of the trustees must be residents of this state.” This association, never passed any by-laws, and never had any written constitution, by-laws or other rules of any kind. The charges in the bill filed in this suit made a case cognizable in equity. If the defendants were closing this church building against the members of the association, who were cestui que trusteni for whom the property was held in trust, a proper case for the intervention of equity arose. Morgan v. Rose, 22 N. J. Eq. (7 C. E. Gr.) 583; Whitecar v. Michenor, 37 N. J. Eq. (10 Stew.) 6; Everett v. Trustees of Church, 53 N. J. Eq. (8 Dick.) 500. The proofs, however, fail to sustain the charges-of the bill in respect to any prevention by the defendants of the free use of the church building at all-proper times by the members of the association. The proofs do show that the persons elected at the meeting held on the 3d of January, 1906, denominated the “Kirczow faction,” changed the locks on the building and took possession of the property; and the real purpose of the bill undoubtedly was to attack the validity of the election of these officers. The allegations of the answer of these officers elected at the meeting of January 3d and the charges in their cross-bill affirm the validity of the election of January 3d, and, in addition, set out the facts concerning the election held on January 10th, and charge that their own election was ratified and confirmed at the meeting of January 10th, and that the action taken at that meeting, which purported to be an election at which adherents of the Barna faction were chosen for the same offices, was invalid. The replication to this answer and the answer to the cross-bill deny the claims of the Kirczow faction that its officers were elected, and affirm- the validity of the election of the adherents of the Barna faction. It is thus apparent that the real issue which the pleadings [202] seek to raise, and which each of the two parties is earnestly desirous ,of having this court determine, is which of the two sets of trustees and officers was duly elected. This corporation has property of considerable value, owning a church building which, with the land, is estimated to be worth in the neighborhood of $30,000. It is encumbered with a mortgage, and there are some judgments against it. The sole source of revenue is from the voluntary contributions. The collection and disbursements of these moneys is under the direction and control of the board of trustees. While there is the doubt at present existing as to which is the legal body of trustees, there is grave danger that these voluntary contributions will diminish greatly, if not entirely cease. , Cessation of income from this source leaves this property entirely without means of being kept up, and will result in its loss to tire association. A situation is therefore presented in which any court having jurisdiction would speedily give relief. I have therefore endeavored to ascertain by careful investigation and consideration whether there is any head of equity jurisdiction which would enable the court. of chancery to decide the real question sought to be settled in this suit. That question, undoubtedly, is solely one as to tire validity of the election of officers of an incorporated association. I can find no warrant for a court of equity deciding a case in which this is the sole issue. There are cases in which a court of equity may determine this question when it is incidental to the determination of a case of equitable cognizance. Johnston v. Jones, 23 N. J. Eq. (8 C. E. Gr.) 216. But where the proceeding—whatever may be its form—-is nothing more nor less than a controversy as to which of two sets of rival officers of a corporation are its legally elected representatives, the jurisdiction to determine the controversy is exclusively in a court of law. Kean v. Union Water Co., 52 N. J. Eq. (7 Dick.) 813 (Court of Errors and Appeals, 1894), and cases therein cited. See, also, Miller v. English, 6 N. J. Eq. (2 Halst.) 304. If the corporation is one to which the General Corporation [203] act applies, then application may be made to the supreme court under tire forty-second section of the act. Quo warranto is the proper remedy where no other statutory method has been substituted therefor. State v. Crowell, 9 N. J. Law (4 Halst.) 390. Legislation which, by its terms, vested jurisdiction in the court of chancery to determine questions concerning the validity of corporate elections, was declared nugatory because unconstitutional. Goldstein v. Ewing, 62 N. J. Eq. (17 Dick.) 69. And the court of chancery there again affirms the doctrine that the power to adjudicate upon the validity of elections of private corporations is solely in the supreme court. I feel constrained, therefore, to hold that the court of chancery has no jurisdiction to determine which of the two sets of officers are the duly elected representatives of this incorporated association. Since I find that the charges of the bill, which, if sustained, would, as above stated, have made out a ease of equitable cognizance, were not sustained by the proofs, the bill must be dismissed, with costs, as must also the cross-bill. Because, as has before been pointed out, the cestui que trustent of this property will undoubtedly suffer grievously, and may lose the property on account of the warring factions and the rival claimants to office, T hesitated for some time before concluding to dismiss the bill. Neither side will contribute its voluntary offerings to those whom it claims have no title to act as collectors or disbursers of the funds. A sititation has therefore arisen in this corporation bringing it, perhaps, within the principle dealt with in Sternberg v. Wolff, 56 N. J. Eq. (11 Dick.) 389, and the cases cited therein, so that it might be proper to appoint a receiver to collect and disburse the moneys pending a determination of the rival claims to office. But since there is nothing left in this case to decide, and therefore there could not be herein any appointment of a receiver pendente lite, any such application could be better dealt with if originated by a new bill filed by those seeking such relief. I will advise a decree as above stated.