West Koshkonong Congregation v. Ottesen

WiNslow, J. The first question which naturally presents itself for decision in this action is as to the validity and effect of the proceedings taken to incorporate the Eastern Church. It stands admitted on the pleadings that the Liberty Prairie Church was duly incorporated in 1862. The proofs leave no doubt as to the regularity of the proceedings to incorporate the West Church; but it is most vigorously contended by the appellant that the Eastern Church has never been legally incorporated, and consequently has no standing in court. The facts are not seriously in dispute. It appears that at the time of the alleged incorporation of the Eastern Congregation the Missourian faction, who were supporters of the defendant, were in control, and had excluded the anti-Missourian faction, who supported Rev. Mr. Krostu, from the church building. The anti-Missourians were holding their meetings at a neighboring school-house. On the 3d of November, 1888, one — 72 — Nicholas Anderson and four others, all members of the anti-Missourian faction, made and signed a "written notice, calling a meeting of the Eastern Congregation at the Eastern Church on the 24th day of the same month, for the purpose of considering the question of organizing said church into a corporation under the provisions of ch. 91, R. S., and of making the certificate prescribed by sec. 1991, in case the meeting decided to organize the corporation. Anderson took the notice, and went to the church at a regular meeting held on Sunday, November 4, 1888, and posted copies on both the outside and inside doors of the hall or vestibule. lie also requested Mr. Ottesen to read the notice to the congregation, which Ottesen refused to do; Anderson then sat down in the congregation, and at the close of the service arose in his place, and commenced to read the notice as the audience were just arising to pass out, and as the church warden was commencing to ring the bell. Ottesen attempted to stop the reading of the notice, but it was completed while the audience was passing out-The notice was also read at a regular meeting of the Krostu faction, held at the school-house. At the meeting held pursuant to this notice on the 24th of November, outside of the church (the building being locked), the five signers of the notice were authorized to execute and acknowledge the certificate required by sec. 1991, R. S., and they subsequently executed the certificate and caused it to be recorded. Apparently the Ottesen faction did not participate in the meeting, although they had full notice of it. The notice of the first meeting of the corporation for the election of officers was given in substantially the same manner. It is first objected by the appellant that the original notice was not given at a stated meeting of the church, but after it.' • This objection hardly deserves serious attention.. The notice was read just after the benediction was pronounced, and the reading was commenced before any of — 73 — the congregation had left. To say that this was not given at the meeting would be hypercritical. It is also objected that the notice should have been read by the pastor, elder, deacon, or some one in authority, and who usually gives such notices. This objection also is untenable. The case of Kulinski v. Dambrowski, 29 Wis. 109, cited by appellants, is very plainly distinguishable from the present case. In that case the statute then in force provided for the reading of the notice by the minister, or by one of the elders, deacons, wardens, or vestrymen; and, it not appearing that the notice was so given, the corporation was held never to have been formed. Now, however, the statute simply provides for due public notice given at a stated meeting. It does not in terms require the notice to be given by any particular person, and it ought not to be so construed as to hinder or bar the formation of a corporation, because it is for the interest of the public, as well as for the interest of the congregation itself, that it should have a legal corporate existence, rather than that it should exist as an intangible, voluntary association. It seems to us that where the notice was given, as in this instance, by a church member at a stated meeting, publicly, and in a manner which must have arrested the attention of every one present, especially after the officiating minister had declined to read it, justice requires that it be considered “ due ” notice. The prime object for which the notice is required, namely, to give knowledge of the meeting to all concerned, was fulfilled. Trustees v. Bly, 73 N. Y. 323. So we conclude that due public notice was given at a stated meeting, and, consequently, that a corporation was formed by the filing and recording of the certificate which the meeting called by that notice authorized to be filed. But it is here objected that, even if a corporation was created by these proceedings, it was simply a corporation of the anti-Missourian faction, and did not represent nor1 — 74 — succeed to the rights of the pre-existing voluntary organization known as the “ Eastern Church; ” in other words, that the anti-Missourian faction had not only seceded from but had been expelled from the Eastern Church, and consequently could form no corporation which would include or become the legal successor of the voluntary organization known as the “ Eastern Church.” This objection demands careful consideration, because, if the anti-Missourians were not members of the Eastern Congregation, they could not give the notice required by sec. 1990, E. S., nor execute the certificate required by the following section, which must be executed by members of the society. The question is, Were the members of the anti-Missourian minority still members of the Eastern Church? It is undeniably true that they were members of that church up to the time of the troubles in 1885 or 1886. Have they lost their membership since that time ? 1STow, if they have lost their membership, it must be in one of two ways,— either by voluntary withdrawal or by expulsion. They have not by any formal declaration announced their withdrawal, but it is claimed that their acts in keeping up a separate organization, holding separate services under another pastor, supporting only their own organization, attempting to discharge the defendant as pastor, and worshiping at separate times, constitute an effective withdrawal. Certainly there was a deplorable division in the church; certainly there was abundance of ill feeling and intolerance on both sides; but was.it not rather a desperate factional fight in the church than a withdrawal or secession from it? Did not both parties claim at all times, in season and out of season, that their faction was the church? Did not each, party strenuously insist that it, and it alone, was the true and only Eastern Church, and entitled to the use, enjoyment, and control of its temporal-ities? There was in fact a division and separation between the two factions, but it was manifestly a division m the — 75 — ■church, a fight for control, a contest for supremacy within the church, rather than a secession from it. Such is the view we take of it, and this view disposes of the question of withdrawal. We cannot entertain for a moment the idea that the action of the Missourian faction in the Eastern Church in March, 1887, by which they attempted to declare the anti-Missourians as withdrawn or suspended from the church, has in fact affected the rights of the anti-Missourians in the least. This action was without notice, without hearing, and without evidence; and, while the civil courts will studiously give full effect to the judgment of an ecclesiastical court when matters ecclesiastical only are involved, when civil rights as to property are involved the civil courts will insist that an accusation be made, that notice be given, and an opportunity to produce witnesses and defend be afforded, before they will give effect to an expulsion or suspension of the kind here attempted. Hoffman, Ecclesiastical Law, 276, 277. The conclusion follows that the attempted incorporation of the Eastern Church was a legal incorporation of the entire church; and that it succeeded to the rights of the voluntary organization. It avails not to say that the Missourians did not take any part in the proceeding, and that the majority' are thus placed under the control of the minority. They could have prevented the result if they were in the majority, or could have controlled the corporation; but they chose to stay away from the meeting, and must abide the consequences. The objection that the first meeting for election of officers was not called in the manner provided by sec. 1993, R. S., is immaterial. The corporation exists. It has at least defacto officers, and that is sufficient for the purposes of this action. It is further insisted by the appellant, and evidence was — 76 — offered tending to show, that by the custom of the Norwegian Lutheran Church the engagement of the pastor is for life, and is indissoluble except for false doctrines, immoral life, neglect of duty, or mutual consent. This contention-was substantially considered" and passed upon by this court in Fadness v. Braunborg, 73 Wis. 257, adversely to the views of appellant. Although that decision is not res adjudicaia in this case, we .see no occasion now to reconsider or modify the conclusion there reached. The only remaining question of importance is the question of title to the lands in dispute, or rather, perhaps, whether appellant is in a situation to contest the plaintiffs’ claim of title. The joint call which appellant accepted, and under which he became the pastor of the three voluntary societies, provided, among other things, that the pastor should have “ the use and benefit of the parsonage of ninety acres.” Under this call and its acceptance by him he commenced his pastoral labors, and went into possession of the parsonage. He was let into possession by the societies. He recognized and admitted their title. Upon the plainest and most familiar principles of law he cannot now dispute it, and it makes no difference that the plaintiffs are • corporate bodies, because they have succeeded to all the rights of the voluntary organizations whose places they have taken. The defendant is estopped from disputing their title; and, the relationship of pastor having been terminated, and no-, tice to quit given, he must vacate the premises. Under this view, it becomes unnecessary to consider the actual state of the legal title to the lands in dispute. Many offers of evidence were made by the appellant, and excluded by the trial court. Even had this evidence all been admit-. ted, it would not have materially affected our view of the case, and, as counsel will perceive, we have discussed the case as if most of the evidence excluded was in fact ad-, mitted. — 77 — This is a purely legal action, and we have discussed purely legal rights. Whether the minorities in these congregations have any equitable rights in the property of the churches is not in issue, and consequently not decided. By the Court.— The judgment of the circuit court is affirmed.