The Clergyman's Hand-book of Law Part 4

*135.* _Devise, Void._-A parent may leave money to a child payable in yearly instalments on condition that said child shall continue to be a member of a particular church and attend the regular meetings thereof, and in case he fail so to do that the bequest be thereupon paid to a missionary society. Such a devise is not contrary to the const.i.tution of the State of Wisconsin and is not void for any other reason.(242)

*136.* _Fraternity, Excommunicated, Bequest._-Where a church member was also a member of an insurance fraternity connected with his church, the const.i.tution of which required that every member of the fraternity should be and remain a practical Roman Catholic, when he was excommunicated from members.h.i.+p in the church he thereby forfeited his benefit certificate in such fraternity.(243) Also, a condition that a bequest shall be forfeited if the legatee should not marry a Protestant wife, the daughter of Protestant parents who have always been Protestants, was held to be valid and not an infringement of any const.i.tutional right.(244)

*137.* _Action, Expulsion._-An action can not be maintained against the parish corporation for expulsion from the church.(245)

*138.* _Forfeiture of Members.h.i.+p_.-Any member may forfeit his members.h.i.+p in a church.(246)

*139.* _Insubordination, Expulsion, Hearing._-The authorities in the church, under its rules and discipline, have a right to exclude members in the church, for insubordination.(247) If the church has no rules as to expulsion of members, the common law prevails, and a member can not be expelled without due notice and fair hearing.(248)

*140.* _Injunction, Mandamus, Sepulture._-An injunction will not be granted to prevent the expulsion of a member contrary to the charter and by-laws of the denomination; but if a member be expelled without warrant of law, he has his remedy by mandamus for reinstatement.(249) A person who has been expelled can not maintain an action for restoration in order to enjoy the right of sepulture, as it is premature.(250)

*141.* _Expulsion, Illegal._-The attempt of a minority of a church to expel the majority of the members and turn over the property to another denomination is illegal. However, the same would be true if it were done by the majority.(251)

*142.* _Freedom, Faith, Doctrine._-The const.i.tution in declaring the freedom of all men to wors.h.i.+p G.o.d according to the dictates of their own consciences, does not give a church member the right to repudiate the faith and doctrine on which the church was founded, and at the same time to insist on his right to exercise and enjoy the benefits and privileges of a member of such church.(252) Every person joining a church, impliedly, if not expressly, agrees to conform to its rules and to submit to its authority and discipline.(253) A person who has been expelled from a religious society can not maintain an action for services rendered the society while he was a member.(254)

CHAPTER XII. ELECTIONS

*143.* _Time, Place, Void._-Where a religious society that is incorporated holds an election for trustees, which is held at the wrong time or place, the election is void.(255)

*144.* _Voting, Communicants, Attendance._-A by-law of a church that prohibited any person whose pew rent was in arrears more than two years from voting at a church meeting, is valid and reasonable.(256) Where a charter of a religious society allowed only members being communicants to vote after they had attained the age of eighteen years, to ent.i.tle a member of the congregation to vote it was necessary that he should have taken the sacraments after the age of eighteen years.(257) Where the right to vote was limited to members who contributed not less than ten s.h.i.+llings annually toward the support of the church, those who were challenged for want of complying with the rule can not do so after being challenged and then vote.(258) Stated attendance at divine wors.h.i.+p in the church, congregation, or society, and contribution to the support of such church, may be made the tests of the right of a person to be a voter at an election. The attendance of a wife or children of the family is not sufficient to confer the right to vote on the husband or father.(259)

*145.* _Voters, Poll List._-Parol evidence is admissible to prove the number of persons ent.i.tled to vote in a church society, notwithstanding that there is a register of names of the stated hearers in such church kept by the clerk of the trustees.

*146.* _Notice, Quorum, Majority, Strangers._-It is not necessary that a majority of the members of a religious society be present to const.i.tute a corporate meeting. Those present at a regularly called meeting of which due notice has been given to all the members, const.i.tute a quorum; and, in the absence of a rule to the contrary, a majority of the votes cast carries any question.(260) The presence of strangers, unless they vote, will not vitiate the proceedings. If they should vote, unless their votes determine the election, it will not be void.(261) The casting of a few illegal votes that would not change the result of the election does not make it void.(262)

*147.* _Challenge, Ground._-The right of a person to vote at any meeting may be challenged. The proper time to challenge a voter is when he offers his vote. After his vote has been received it can not be thrown out on the ground that he was disqualified.(263) A church election for which due notice has been given, that has been fairly conducted, and all the requirements of the statute or rules of the church complied with, is conclusive.(264) Without due notice, all proceedings are void.(265)

*148.* _By-Laws, Usage._-If there is no law of a religious society determining the mode of conducting an election, the corporation may provide by-laws therefor; and if the corporation should fail to make such by-laws, a long established usage will govern.(266) Also, if the time an election is to be held is provided for, but the manner of conducting it is not, the meeting may be conducted according to established usage.(267)

*149.* _Ballot, Hand Vote._-The vote of a religious society at an annual meeting for the election of officers that the officers shall always be chosen by ballot, does not vitiate an election of officers by hand vote at a subsequent annual meeting. But a provision in the const.i.tution or by-laws requiring a ballot must be complied with.(268)

*150.* _Hold Over, Successors._-When the election of the new trustees is invalid, the old trustees hold over until there will have been a valid election of their successors.(269) But where a board that was illegally elected employed a minister who had no notice of such illegality, he was ent.i.tled to his compensation according to the contract.(270)

*151.* _Majority, Votes Cast._-Where the majority of a congregation protested against the proposed candidate, but failed to vote for any one, such candidate who received the greatest number of votes cast, was lawfully elected.(271)

*152.* _By-Law, Tickets._-When a by-law provides that "if besides the names there are other things upon the tickets, such tickets are not to be counted," a ballot having an engraved eagle on it should be rejected.(272) However, in a very recent case under a statute that specifically provided what should be printed on the general election ballot, and in addition thereto the Union Labor label was printed thereon, the court held that the statute should be strictly construed in favor of the voter and that the ticket should be counted.(273)

CHAPTER XIII. OFFICERS

*153.* _Charter, By-Laws._-The articles of organization or the charter which is the const.i.tution of the corporation may provide who may be officers of a religious society and limit their authority. The const.i.tution usually gives further authority to make by-laws which are binding on the officers as well as on the members.(274)

*154.* _Unincorporated Church, Incorporated._-The officers of an unincorporated church can only be elected by the members of the church, unless there is some law of the State or rule of the church that provides for appointing them. In an incorporated congregation, the charter and by-laws of the corporation determine whether the officers shall be elected or appointed.(275)

*155.* _Trustees, Control._-A statute pa.s.sed in 1813 providing that a certificate of incorporation by the bishop, vicar-general, pastor of the church, and two others selected by them and their successors shall be a body corporate, does not const.i.tute the trustees the corporation in place of the congregation so as to make the acts of a majority of the trustees binding on the corporation in the absence of proof of other authority.(276) Under the statutes of Louisiana providing for the incorporation of congregations for the purpose of administration and revenues, it was held that the corporation had full control and was responsible to the congregation alone and could not be controled by the clergy. The congregation had the right to elect others in the places of those amoved by reason of their misuse or abuse of their powers.(277) And in Ma.s.sachusetts, under the law for incorporating Catholic parishes, no one but the trustees have any power.(278)

*156.* _Members.h.i.+p, Office._-Where church members.h.i.+p is necessary to hold office in the church corporation, it is a binding condition precedent.(279) An officer who withdraws or is expelled from a religious organization thereby terminates his office.(280)

*157.* _Certificate of Election._-A certificate of election of officers is prima facie evidence thereof, but the truth may be shown _aliunde_ and a wrong certificate may be cancelled by a judgment of a competent court on a writ of _quo warranto_ or proceeding under a statute of the State. Also, if the certificate does not conform to the law, it is insufficient.(281)

*158.* _Term, Successors, Contest._-Where there is no term of office fixed, the presumption is that an officer continues as such until proof to the contrary is established,(282) or until his successor shall have been elected and shall have qualified.(283) Also, the officers elected for a certain term can not be amoved by electing new officers before the end of the term.(284) When officers or committees have been elected "for the ensuing year," they shall hold office until superseded by their duly elected successors. Where two sets of officers were elected at a meeting of a religious corporation and the set that was elected according to the charter continued in office by appointment thereafter, it was too late for the irregularly elected officers to make a contest for the offices after the term for which they had been elected had expired.(285)

*159.* _By-Laws, Preside._-At an election of trustees under by-laws that provide that certain officers shall preside, if there are no such officers members may be selected to preside in their places.(286)

*160.* _Note, Overdraft, Interest._-The president and secretary of a church corporation have no authority to make a promissory note unless authorized by the board of trustees.(287) Neither has the treasurer authority to make an overdraft on a bank with the action of the trustees.(288) The trustees of a parish, however, may make a note binding the congregation for the payment of the money used in building a church.(289) But when the trustees have an interest in the transaction, adverse to the congregation, they are disqualified from acting.(290) When trustees had claims against the congregation which they included with other claims that third parties had against the church, they could not put them in a judgment note so as to get a lien upon the church property. When officers do not bind the congregation, they usually bind themselves.(291) The trustees of an unincorporated church can not bind it beyond the expressed powers granted by the members.(292)

*161.* _Board, Control._-When the laws of the organization give control of matters to the board of trustees, the majority of the members of the church can not control the action of the trustees contrary to the usages and regulations of the church.(293)

*162.* _Treasurer, Accepting a Draft._-A parish treasurer has no authority under any condition to bind the corporation by accepting a draft in favor of a third person. A treasurer elected for the purpose of receiving and investing funds in his individual name, holds such funds as trustee for the church and is subject as such trustee to a court of equity. Persons claiming to be trustees of a church but never getting possession of their offices or the property of the church, can not maintain an action against other persons who are in possession and have been duly elected.(294)

*163.* _Note, Trustees._-A church will not be bound by a note which was executed by two of its trustees and sent around to other trustees to sign it, where there was no vote of the board of trustees at an authorized meeting to borrow or to execute such note.(295) A meeting of a board must be called as required by law or the by-laws of the organization, and in the absence of any such all members must be notified a reasonable time before the time fixed for holding the meeting. However, if all the trustees are present and agree to hold a meeting it is valid; but it would be well to put such consent in writing and have all the members sign it.(296)

*164.* _Money, Powers._-The treasurer of a congregation has no right to return to members moving out of the parish a part of the money paid for the church by them.(297) Officers of a corporation have no powers only those conferred upon them by the charter and by-laws of the corporation or by a majority vote of a duly called meeting of the congregation.(298) When the trustees of a church are authorized to execute contracts for the church, they should act as a body or delegate the power to one of their number or ratify the acts of one of their number.(299) The individual disjointed action of trustees of a religious society, at various times and places, although a.s.sented to by a majority, is not the action of the board, and is not binding on the society. To make the action of the board of trustees binding, they must duly meet and by a vote determine their action.(300)

*165.* _De Facto Officers._-The acts of _de facto_ officers can not usually be questioned in a collateral proceeding, such as to set aside a conveyance, when the merits of the question do not involve the election.(301) Being elected does not alone make a person a _de facto_ officer; but he must also be acting in the particular office to which he claims to have been elected.(302) But one who has entered into a contract with the officers of a congregation is estopped from denying their authority to make such contract.(303)

*166.* _Trustees, Thanks, Charge._-Where trustees have taken care of funds without charge, the only entry kept being a vote of thanks from time to time, they could not afterward charge a commission on the moneys handled by them for such services.(304)

*167.* _Discretion, Excommunication._-A court has no authority to control the exercise of the judgment or discretion of the officers of a church in the management of its funds so long as they do not violate its const.i.tution or by-laws.(305) Excommunication does not always remove an officer of a church corporation.(306) The legal rights of a bishop in regard to the temporalities of a church where they are not prescribed by civil law, must rest, if at all, upon the ecclesiastical law, which must be determined by evidence.(307)

*168.* _Key, Possession, Right._-Having the key of a church, is prima facie evidence of possession, but the right of possession is a matter of proof.(308)

*169.* _Church, Bishop, Debts, Salary of a Priest._-Where a church is not itself liable because it is not incorporated, the Roman Catholic bishop of the diocese is not personally liable for moneys borrowed by the pastors of such church in the name of the church, which were partly invested in real estate which was put in the bishop's name in the usual manner, although the bishop's permission was necessary before borrowing the money, and notwithstanding that the bishop raised some of the money to pay some of the debts and the mortgage on the real estate of the church on his personal security, and he received part of the borrowed funds from a dying pastor and handed it over to his successor.(309) Also, a bishop is not personally liable for the salary of a priest whom he engages. They are fellow servants working for the Church and not in the relation of employer and employee any more than are a general and captain in the same army.(310)

*170.* _Note, Building Committee._-In an action on a note given by the pastor of a church for money borrowed to pay bills for the erection of the church building, in which the plaintiff sought to charge the building committee, and it appeared from the plaintiff's testimony that the t.i.tle to the property was in the bishop and the committee did not handle any of the funds, but was a s.h.i.+fting body to whom the pastor only went for advice and consultation, it was held that the plaintiff could not recover.(311)

*171.* _Fraud, Trust._-Where a "prophet" induced members of his organization, by his fraud and deceit, to convey to him all their property in discharge of a religious duty and then refused to account to them, the court declared the trust closed and divided the estate among the members in proportion to the money, property, and labor contributed by each of them.(312)

*172.* _Superioress, Money._-A person who contributed money for the purpose of repairing a convent, the money being turned over to the superioress and the convent not being incorporated, upon the project being abandoned subsequently a personal judgment could not be obtained against the superioress for the money contributed.(313)

*173.* _Loan, Priest._-If a man lends money to a priest for the purpose of paying a note against the congregation left at the bank for collection, he can recover the money so paid from the congregation.(314)

*174.* _Warden, Wages, s.e.xton._-A church warden who was hired by the trustees of a church can not collect his wages by an action against the priest of the parish.(315) A church accepting the services of a s.e.xton is liable to him therefor, whether the by-laws were observed in employing him or not; nor will the fact that any party (as in this case the Ladies of the Altar Society) agreed to contribute to his annual salary, defeat his recovery of the whole from the church employing him.(316)

*175.* _Sewing Circle, Money._-A church may maintain an action against a sewing circle to require it to pay over money collected for the benefit of the church.(317)