50. Wisconsin, Mississippi, New York.—The statutory law of the different States of the Union is so varied and the laws of one State are of so little interest to the people of another that it would be almost useless and beyond the boundaries of this work to give the substance of the various statutes. In some States there is a limitation upon the real estate that a church or charitable organization may hold, and in other States there is no limitation whatever. Wisconsin, perhaps, occupies the extreme of greatest liberality, by not only allowing full freedom in everything relating to religion and charity, but it further excepts from the limitation all rights of alienation of real estate granted or devised to a charitable association or to literary or charitable corporations organized under the law of the State. The State of Mississippi probably stands at the other extreme both in the narrowness of its constitution and statutory law, and prohibits any [pg 042] devise or bequest of any personal property or real estate in favor of any religious or ecclesiastical corporation or any religious or ecclesiastical society. Neither does it exempt a clergyman, physician, or lawyer, from examination as a witness concerning information that he obtained in the performance of his functions or duties as such. Its judges, however, are more liberal than its legislators, and I know of no instance in which a clergyman, physician, or lawyer, as a witness, was sent to jail for contempt of court for not divulging information obtained in his professional capacity. Probably New York has the most complete code86 relating to religious corporations.
51. Real Estate, Parish, Diocese, Taxation.—It is very important that a congregation about to purchase real estate should examine and understand the statutory law of the State governing the powers and authority of the Church as a civil organization. In some States there is no special law for incorporating religious societies; while in most States there are special provisions therefor. For this reason, I emphasize the fact that no parish or clergyman is justified in organizing a congregation or purchasing land without first knowing the law of that particular [pg 043] State. But generally it is best that each congregation be incorporated and that its property be held in the name of the corporation, so that the debts of one corporation will not embarrass the diocese, and that bequests and gifts made to a church may be enforced in the courts. The proceedings to incorporate are fully stated in the statutes of each State. One of the things of the utmost importance is that any notice to be given must be given strictly as required by law.87 Another is to incorporate in the way that avoids taxation.88
52. Riot, Damages.—Under a statute providing that a person whose property is destroyed by riot may bring suit against the county for damages, a corporation for religious purposes, as well as an individual, has a right of action.89
53. Use, Change, Parsonage, Discipline, Doctrine, Curate.—When a fee simple is acquired by a religious corporation, without restriction as to quantity, but limiting the purpose of its use, a subsequent Legislature, with the consent of the corporation, has power to change or abrogate altogether the restrictions as to the use of the land.90 And [pg 044] the Legislature may empower the church corporation to convey a house devised to it for a parsonage with a condition that it be kept in repair, and invest the proceeds in other property to be held for the same purpose.91 A State legislature can not interfere in church discipline and doctrine, as by legislating what shall constitute a curate in the Catholic Church.92
54. Partners, Debt, Liability.—Where several go into an undertaking without first being incorporated they are usually liable as partners, each one being responsible for the whole debt. In some States the same liability exists where an attempt has been made to incorporate, but there was a failure to comply fully with the law.93 There is some authority freeing the individual members of a religious society from liability for the debts of such society,94 and holding that an agent of such society could not bind the society in their associated capacity by a promissory note,95 but the rule is that the members of an unincorporated society who actively incur lawful debts or ratify them after their creation are personally liable. There are exceptions to this rule by statute or decisions [pg 046] in a few States.96 Also, the law of personal liability is settled in England.97
55. Pastor, Salary.—In a late case in Wisconsin where a pastor had a contract with his congregation as to his salary, after the clergyman's death his heirs recovered the unpaid part of his salary in an action against a few of the individual members of the congregation.98
56. Building, Materials.—The members of the building committee of an unincorporated church are liable for materials purchased by them for the church, notwithstanding that the seller charged the materials in the name of the church, and that at the time that the purchase was made, he was told that the money for payment was to be raised by subscription among the congregation.99
57. Management, Disability.—An unincorporated society is managed by those who are competent to transact their own business. Therefore, it would seem that members must be men over twenty-one years of age, and not under legal disability. The [pg 047] minor sons in a family who have continued their attendance at the religious services until of full age, are considered members.100
58. Shakers, Sect, Catholic Church, Trustees, Funds.—Although the sect called Shakers is not incorporated, yet it has been allowed to take and hold property for church purposes.101 In Massachusetts, by statute, a sect may take and hold property for religious purposes without incorporation.102 The Roman Catholic Church is a recognized public corporation by most nations, including the United States.103 No individual member of any such body has any title to the lands it holds, but the lands are the property of the society in its aggregate capacity.104 After property has been acquired, the trustees have no right to distribute it among the members, as such power could not be conferred upon them by a majority vote even when approved by an order of the court. The contributors did not intend their funds to be so disposed of, and if they failed to attain the use intended, they must be returned [pg 048] to the donors, and if not called for, would escheat to the state.105 Where an unincorporated society has purchased property and taken the title thereto in the name of one of its members, when it subsequently incorporates such member may be required to execute a conveyance to the corporation.106
59. Contract, Binding.—Persons forming a religious society may make a contract for the support of its minister by a majority vote.107 When such unincorporated society by a majority vote enters into a contract or compromises a suit, it is binding upon the minority.108
60. Court, Trust.—Any member of an unincorporated society may go into a court of equity on behalf of himself and others to enforce the execution of a trust in favor of the society.109
61. Societies, Membership, Forfeiture.—Voluntary religious societies when not restricted by their charters or articles of association, may make by-laws declaring what shall constitute membership and what shall [pg 049] operate as a forfeiture thereof, applicable to existing as well as to future members. Where money is voted to be raised by an assessment to be made at a subsequent period, a person who was a member of the religious society at the time that such vote was passed, but withdraws before the time of assessment, is not liable to taxation.110
62. Special Law, General Laws.—In most of the States there is a special law under which congregations may be incorporated. New York is a good example.111 Where such law does not exist, the congregation may be incorporated under the general laws. For business reasons each congregation should be incorporated.112
63. Officers, Discipline, Property.—When a church society incorporates it becomes a private corporation, and the officers are bound to manage the property in the most upright and careful manner according to the discipline of the church.113 When a parish incorporates, the title to the parish property vests in the corporation, to which trustees may be compelled to convey it.114
64. Incorporation, Evidence.—The certificate of incorporation or charter of a religious society or a certified copy thereof [pg 051] from the public record, is the proper evidence thereof.115 Secondary evidence and evidence aliunde may be competent in some forums.116 In most States if incorporation is alleged in the complaint, it need not be proved unless denied by an affidavit or a verified answer.
65. Congregation, Members.—The act of incorporation applies only to the particular congregation petitioning for it and does not extend to other churches, even though they are a subsequent growth within the same territory.117 Incorporation once established is presumed to continue.118 When a new religious society is formed and incorporated, consisting of individuals from existing parishes, the members of the new society from the time of its incorporation cease to be members of the respective parishes to which they had belonged.119
66. Temporal Affairs, Management.—A majority of a religious corporation at a regularly called meeting may, by a vote taken, bind the minority in all temporal affairs.120 The character of membership in the religious corporation may be very different from [pg 052] that of membership in the church.121 The fact that a member has been declared out of the church by an ecclesiastical tribunal, may not affect his rights in the management of the temporal concerns of the corporation.122
67. Corporators, Change.—In isolated cases here and there it has been held that a majority of the corporators of a religious society has the right to change the form of church government, as from the Congregational Church to an organization in connection with the Presbyterian Church.123 But it is a general rule that a majority of the congregation can act only consistently with the particular and general laws of the church organization, but not in violation of them.124
68. Constitution, Subsequent Laws.—An ecclesiastical society formed before the adoption of the state constitution is not by that constitution and subsequent laws concerning religious societies divested of its legal character.125
69. Name, Change.—The name of an ecclesiastical corporation is arbitrary and a [pg 053] change or alteration in its name does not affect its identity.126 A charter will not be granted to a church with a name so like another church in the same State, that one may be taken for the other.127
70. Church, Regular.—In church organizations those who adhere to the regular order of the church, legal and general, though a minority, are the true congregation and constitute the corporation if incorporated.128
71. Notice, Legal.—All the proceedings of a corporation, including notice, must be in accordance with the constitution and by-laws, and no business transacted contrary thereto is legal.129
72. Control, Secede, Vested Rights.—The officers of a church corporation have control of the business management for all civil purposes, excepting as otherwise provided by the articles of organization, charter, or by-laws of the corporation. However, the by-laws must not contravene the laws of the State.130 A charter was refused in Pennsylvania which provided that the [pg 054] congregation might, by a majority vote, dissolve or secede from the central body and divide the property.131 A charter of incorporation may be amended in harmony with the principles, discipline, and objects of the church, but not otherwise.132 The fact that incorporation of a church confers certain rights and privileges under the charter, such charter being accepted, does not give the church corporation any vested rights.133
73. Consolidation, Control, Dissolution.—So far as the State law is concerned, two different denominations may form one corporation;134 or two or more congregations of the same organization may form one corporation.135 Where such consolidation is attempted, the new organization must have control of all the property.136 So long as different congregations attempting to consolidate retain their respective identities, they do not form a single corporation.137 It is a general rule that a corporation may be dissolved by taking the steps required by law. As there are various statutory provisions in the [pg 055] different States, each case had best be attended to by an attorney. In some States there is a provision that where a corporation fails to carry out its functions for a stated time, it thereby becomes dissolved. The omission of a parish for one year to elect officers, does not necessarily operate as a dissolution under such statute. In case of dissolution under a statute of that kind, the property of the church is not forfeited to the State.138
74. Debt, Limited.—The amount of debt which the trustees of a religious society may be authorized to create, may be limited by its constitution.139
75. Conditions, Effect.—Where $1,000 was given defendants to erect and maintain forever a Lutheran church and prohibiting the grantee from alienating or disposing of or otherwise changing or encumbering the land by deed, a mortgage given to secure a legitimate debt was held valid, as the legal title was in the corporation and a court of equity could not refuse to enforce the mortgage for the payment of an honest debt under color of protecting a charitable use.140 But property given a congregation for the [pg 056] maintenance of a church that becomes dissolved, reverts to the heirs as a resulting trust.141 A corporation that has been authorized to purchase land may execute a mortgage for the purchase money or a part of it without further authority.142 Where by an ancient agreement a meeting-house was to remain in a particular place, a vote of the congregation will not justify pulling it down, and an action of trespass will lie for razing it and damages will be given for the value of the building.143
76. Suits, Parties.—When a church is incorporated, it should be sued in its corporate name; but when the bishop of the Catholic church holds the legal title to the land in litigation, he should be made a party.144 And if there are two sets of officers contending for control, service of the papers upon the intruders may not be sufficient. The safer practice is to serve upon both.145 A suit by the trustees of a religious society to restrain other parties claiming to be trustees from interfering in the management and control of the society property, is properly [pg 057] brought in the corporate name of the trustees and not in the name of the State.146
77. Incorporation, Sufficient.—Where the articles of incorporation were drawn and signed in the form required by law, excepting as to the acknowledgment, and were recorded, and the corporation organized in good faith, it became a de facto corporation and was sufficient to entitle it to sue to prevent certain members from perverting the use of its property.147
78. Dissolution, Fund.—The corporation of a congregation can not by seceding and a majority vote dissolve the corporation where it is a part of a superior body.148 But the courts have plenary powers over corporations under the United States jurisdiction, such as territories, and may dissolve a corporation.149 The fact that the dissolution is contrary to, or authorized by church discipline, makes no difference as to granting the dissolution, as such discipline can not supersede the state law.150 On dissolution of a religious corporation, the surplus fund derived from a legacy should be disposed of in the manner the court believes to be most in [pg 058] harmony with the will of the contributors to the fund, could they have foreseen the event.151
79. Reorganization.—A church corporation may reorganize and be reinstated into all rights that it formerly had.152 The steps to be taken to reorganize are usually provided by statute and should be closely followed. Upon the reorganization, the old corporation becomes terminated.153
80. Meetings, Majority, Quorum.—In corporate meetings, meetings of boards, and meetings of committees duly called, a majority vote of those present determines the action of the body. If the membership is indefinite, those who attend such meeting constitute a quorum; but if the membership is definite, it requires a majority of the voting members to constitute a quorum, unless the law of the State or the constitution (articles of organization) or by-laws provide a different number.154
81. Protestant, Ministers, Bishop.—In most church organizations the authority is divided into superior and inferior. In countries where there is an established Protestant church, the superior authority is first in the king and queen and secondly in the bishops. The inferior authority is in the ministers and secular officers of the church. Where there is no established church, the synod or bishop is the superior authority. Thus decisions of our courts usually apply to all churches alike.
82. Roman Catholic Church, Pope, Bishops, Delegated.—In the Roman Catholic Church the superior authority is first in the Pope and secondly in the other bishops. This superior authority is graded and some of it may be delegated, as in case of a Papal delegate. But the general rule that delegated authority can not be again delegated by the delegate without special authority applies to church matters.
[pg 060]83. Bishop, Discipline, Clergy.—Within his diocese the bishop is the executive officer, the legislature, and the judiciary; but he is subject to the superior authority of the Church. The bishop may make laws for his diocese, subject to the limitation of the general doctrine and discipline of the Church. He has original jurisdiction of all causes arising in his diocese, and may decide them in the first instance and inflict such penalties, suspension, or excommunication, in accordance with the canons of the Church, as he deems fit. The clergy are subject to his orders and discipline according to the canon law. However, without special contract, the bishop is not civilly liable for the salary of a priest under him, either while he is actually in the line of his assigned duties or while waiting to be assigned.155
84. Local, Secular Matters.—There is still another division of superior and inferior authority: the local corporation or congregation has nothing whatever to do with the doctrinal or disciplinary functions of the Church; but has only such powers and authority with regard to secular matters as is provided by the laws of the State or conferred by the articles of organization, [pg 061] charter, and by-laws. Also, unless there is some other rule to the contrary, only the male members who are over twenty-one years of age, have a voice and vote in such corporation.156
85. Unincorporated, Authority.—When a church is not incorporated, all its elections and proceedings, so far as they are not contrary to the laws of the State, must be in accordance with the rules and regulations of the Church; and the rule that the inferior authority must give way to the superior authority in all matters within the limitations of the constitution and laws of the organization, prevails.157 However, courts are not always clear on the last part of this rule.158
86. Tribunal, Action, Appeal.—When any question arises and is being adjudicated in the tribunal of the church organization, either as an original action or on appeal, the State court will not interfere so long as the proceedings are in accordance with the rules and regulations of the church, unless some vested right to property is in question or [pg 062] some one's right as a citizen of the State or of the United States is being infringed.159
87. Spiritual Authority, Excommunication.—Neither the Pope nor the bishop has any but spiritual authority within the State.160 The law of this country considers excommunication as expelling from membership; but does not tolerate interference with civil or property rights of citizens. Therefore, major excommunication non tolerati, is unlawful in the United States.161 However, a bishop is not liable for any expression of his opinion as to the extent of his episcopal authority nor for any act of omission in the exercise of his spiritual functions.162 The civil courts will not go behind a church authority to inquire as to excommunication, but may examine as to the competency of the tribunal according to the laws of the denomination.163
88. Constitution, Limited, Decisions.—A written constitution is not necessary to prove the connection between a subordinate and superior ecclesiastical body; but it will be inferred from the circumstances of the [pg 063] case.164 The superior may dissolve or reorganize an inferior body as a congregation.165 In fact the superior authority, in religious matters, is plenary, excepting as limited by the laws of the State and the constitution of the Church.166 The decisions of the ecclesiastical tribunals in all cases on doctrine, order, and discipline, are conclusive in the state courts.167