308. Worship, Discipline, Innovations.—The denomination itself, according to its rules and regulations, determines what services shall form a part of its public worship. The inferior authority in the church has no right to violate the discipline by innovations. Whether or not devotional singing may be accompanied with instrumental music, must be determined by those who administer the discipline of the church.550
309. Doctrines, Temporal Affairs.—The fact that the congregation sells the pews does not give the owners the right to determine what doctrines shall be preached in the church, nor who shall preach them.551 A majority of a local church can not change the faith of the church against the protest of the minority.552 The corporation of the congregation is governed by the majority only in temporal affairs.553 However, some [pg 167] of the Protestant churches are so independent that a vote of the congregation may transfer them from one denomination to another.554
310. Contributions, Presbyterians, Methodists.—Where certain persons by contributions built a church and the title was taken and held by the Presbyterians who permitted all other denominations to hold services therein, all of which was a condition of the subscriptions for establishing the church, when the Presbyterians sold out to the Methodists and they held it for their own exclusive use, those who contributed the money had the right to resort to the court to enforce their rights to worship in such church.555
311. True Religion, Courts.—Ordinarily the civil courts do not interfere where there is a question as to which of two or more parties is adhering to the true religious teaching of the denomination. If no question of property or civil rights arises, the court will not interfere.556
312. Heresy, Injunction.—Where a minister did not preach the doctrine and the entire system of Calvinistic theology received and taught by that denomination, he [pg 168] had no right to the pulpit of the church, and the court granted an injunction against his officiating therein.557
313. Bequest, Sects, Condition.—Where a bequest was made to erect a place of worship with the privilege for other sects to worship therein and forever to be used as such, the trustees in whom the title vested had no authority to sell without the consent of the grantor or his heirs; and the congregation having sold the church property and it having been thereafter used for a store, the grantor's heirs had a right of entry for condition broken.558
314. Sexton, Undertaker, Authorities.—The sexton who has charge of the church property may lawfully remove from the church an undertaker who, after being warned to desist and leave, persists in conducting the funeral in violation of rules prescribed by the authorities of the church.559
315. Statutes, Wills.—In some States a religious society can not take under a will, and a bequest of money to a church is void.560 In Connecticut any devise to a religious corporation not expressly authorized by statute, is void.561 In Maryland leave to devise land to a religious society must be obtained from the Legislature.562 In all the States it is safest to consult and carefully follow the statute in drawing a will.
316. Masses, Alabama.—Formerly as a rule of the English common law, it was held that bequests and devises for the purpose of having Masses said for the soul of the deceased, were void as superstitious uses; but under Article 1 of the Amendments to the United States Constitution, and under similar provisions in the constitutions of the several States, the English rule does not prevail in the United States. However, Alabama [pg 170] adopted the English rule.563 By reading the foot-note to the Alabama case, it will be found that a majority of the States hold that such bequests are lawful.564 Even in Alabama if the bequest had been to a clergyman or a certain person and accompanied by a request to say Masses, the court might have allowed it.565
317. Name, Bequest, Corporation.—A mistake in a name does not render a bequest or a gift void if the person intended can be identified.566 Also, a devise may be made to a corporation not yet organized and when it is organized the gift or devise will vest. During the interim, it will remain in abeyance.567
318. Clergyman, Undue Influence.—A clergyman who is a grantee in a deed from a parishioner, although deriving no benefit therefrom, has the burden of showing good faith in the transaction as the law presumes that he is guilty of undue influence. This presumption is further strengthened by proof of the enfeebled condition of the [pg 171] grantor by age and illness and his susceptibleness to influence. Where the property conveyed in trust for the parish was greatly in excess of its needs, the deed was set aside.568
319. Contest, Secession.—In case of a devise to a church which is claimed by two societies, it is the duty of the court to decide in favor of those who adhere to the ecclesiastical government of the church which was in operation at the time the trust was declared.569 However, to maintain such action it must be brought by the proper parties.570
320. Bequests, Membership.—Bequests left to individuals on condition that they shall remain members of a certain church, can be obtained only by complying with such condition.571
321. Conditions, Religious Tenets.—In order to determine the conditions of a trust the religious tenets of the donor may be shown to aid in construction of ambiguous provisions.572
322. Name, Uncertainty.—A bequest to Georgetown University, in the District of Columbia, which was incorporated under the [pg 172] name of “The President and Directors of Georgetown College,” is not void for uncertainty, as the only institution of learning in the District of Columbia is Georgetown College.573
323. Future Uses, Uncertainty.—A devise to a foundling or eleemosynary institution, whenever the Christians should create one which the trustees approved, is valid.574 And a devise to the “First Christian church erected or to be erected in the village of Telfairville, in Burke county, or to such persons as may become trustees of the same,” is good as a charitable bequest.575 A bequest to a priest to hold in trust and pay over to the Sisters for the Poor, is valid.576 A bequest for the care of a tombstone is valid in some States and not in others without a statutory provision.577 A bequest to the bishop “to be by him used for Roman Catholic charitable institutions in his diocese,” sufficiently describes the beneficiaries and is good.578 Also, a bequest to Bishop England “in trust for the Ladies of the Ursuline Order residing in Charleston in the State of South Carolina,” was held for “The Ladies of the Ursuline [pg 173] Community of the city of Charleston.”579 A bequest for Masses “to a Roman Catholic priest that shall succeed me in this place,” was held void for uncertainty.580 A bequest in trust to a bishop by name to sell and give the proceeds to a society named, is not a devise to the society, but to the bishop in trust.581
324. Education, Priesthood.—A devise or bequest to a clergyman of property to be used for the education of poor Catholic boys for the priesthood, was sustained in court as sufficiently definite for performance.582
325. Charitable Trust, Cy-Pres.—Equity will not allow a charitable trust to fail for want of a trustee, but will appoint one.583 The doctrine of cy-pres as applied to charitable gifts and trusts, is not in force in Alabama, Connecticut, Delaware, Indiana, Maryland, Iowa, New York, North Carolina, nor Wisconsin; but seems to prevail in California, Illinois, Massachusetts, Missouri, Pennsylvania, and Rhode Island.
326. Error, Ambiguity.—Great latitude is allowed in charitable bequests, devises, and gifts, in proving aliunde the beneficiary [pg 174] intended where there is error in the name or a latent ambiguity.584 The religion of the testator will be considered in proving intention.
327. Dissolution, Resulting Trust.—On dissolution of a religious society, the money collected or derived from the sale of property goes back as a resulting trust to the contributors.585
328. Charity, Institutions.—To determine what is a charitable trust, devise, or gift, it is necessary to particularly bear in mind the most comprehensive definition of charity. Legacies for schools, churches, libraries, cemeteries, the poor, hospitals, and numerous other eleemosynary institutions, have been sustained under charitable bequests when they otherwise would have failed.586
329. Purposes, Exempt.—Only church property that is actually used for church or charitable purposes, is exempt from taxation. Property held for its increase or profit is not exempt.587 Land bought for a church on which no work on the church is yet begun, is not exempt from taxation.588
330. Lot Isolated, Not Exempt.—A lot isolated from the other property of the church of a congregation, is not exempt because the congregation intends to build a church thereon in the future, and actually did build a church thereon two years later.589
331. Bishop's Residence, Hospital.—Real property the title to which is in the archbishop in fee in accordance with the discipline of the Catholic Church, is not owned by a religious association so as to exempt it from taxation. The records do not show a trust for the diocese nor any other beneficiary. A court will not take [pg 176] judicial notice of the laws of the Catholic Church.590 But property used as a hospital to care for the sick and wounded of all races and religions indiscriminately, with or without pay according to the ability of the patient, is a benevolent institution engaged in a work of charity, and comes under the law of tax exemption.591
332. Parsonage, Rented.—A parsonage owned by a congregation and used only as a residence for the clergyman is not exempt because of some part of it being also used for alleged religious services, to-wit: morning prayers of the children before school, a sewing society, and a meeting place for Sunday-school teachers.592 However, a house and lot rented and kept by the minister was exempt from taxation.593
333. Masonic Order, Charity, Elks.—A charity which is confined exclusively to the members of the Masonic Order and their families or to the widows and children of deceased members or those who are directly or indirectly connected with the society, is not purely a public charity within the provisions of the constitution relating to the [pg 177] exemption of institutions of purely public charity from taxation.594 And property held by the Elks for entertainment and to promote social intercourse was held not exempt.595
334. Supporting Church, Mississippi.—In the early ages of the States several of them had laws for taxing all the property in parishes laid out by the State for the support of Protestant churches. Gradually these laws were eliminated and at the present time there is probably no State excepting Mississippi that uses money for the support of a church. Maine changed her laws in 1821, and other States followed from time to time.596 While those taxes were collected, no land within the parish was exempt in some States and in others the property of a non-resident was exempt.597 In New Hampshire and Pennsylvania, a person could not be compelled to pay the taxes to a denomination of which he was not a member.598
335. Appropriations, Contracts, Rent.—Under the constitution of the United States, [pg 178] Congress can not make appropriations nor give aid to any denomination. Also, similar provisions are in many of the constitutions of the States. However, many cases arise out of contracts, which border upon these various rules, and in some States the constitutional provision of the State is such that the State Legislature may legislate concerning religions and give certain aid and support thereto. Paying rent to a congregation for a school-room is not an appropriation or aid to a church contrary to the constitution.599
336. Poor, Institutions, Negligence.—As hospitals, homes for the poor, and other eleemosynary institutions are supported by money given to charity, it would be a diversion of the trust funds if such institutions could be compelled to pay damages for negligence causing personal injury or death. The general rule is that the person causing the injury may be liable, but not the institution.600 However, a charitable institution has been held liable for negligence of its manager to notify a nurse of the contagious nature of a case assigned to her.601
337. Surgeon, Gratuitous Services.—A charitable medical institution is not liable for the negligence of its surgeon in operating upon a patient gratuitously where such institution exercises due care in employing a surgeon deemed competent. The fact that besides such gratuitous services, medicine is taught therein for tuition fees and patients who are able to pay are charged a small fee [pg 180] for room, board, nursing, etc., but no fee from the patient to the doctor, does not change it from a charitable institution.602 However, a hospital that is an adjunct to a medical school is liable.603
338. Charitable Institution.—An institution that limits its benefactions to the members of a particular denomination is, in the absence of a statute to the contrary, a charitable institution.604 This rule has exceptions.605
339. Charter, Real Estate.—The trustees of a religious, literary, or other benevolent society, can not, irrespective of the powers granted by its charter, purchase and hold real estate under trusts of their own creation which will protect their property from creditors.606
340. Mortmain, Title, Trust.—The statute of mortmain was never in force in Pennsylvania, so a religious corporation can hold the legal title to land in trust for the heir-at-law of a testator who has devised it to the corporation in trust for uses that [pg 181] were void under the English law.607 The only States that have statutes of mortmain are Mississippi and North Carolina. Yet in those States the statutes are somewhat different from the law of England.
341. Public Institutions, Support.—Benevolent and charitable institutions under a church are not public institutions, and moneys can not be appropriated for their support.608
342. Nuns, Vows, Property.—When joining a society of nuns, one of the vows taken was that all property should be held in common and whatever property was received after taking the vows should belong to the society. A person who left the order was not concluded from making claim for her property.609
343. Parent, Education, State, Parochial Schools.—The right of the parent to use judgment as to the proper necessaries of his child, including board, lodging, and education, is generally conceded. However, there must be no abuse of these parental rights, as the child also has rights that even a parent can not infringe. Therefore, the State may require a reasonable opportunity for the education of every child; and if the parent can not give it on account of his poverty, it is in the power of the State to take his child in charge and furnish him an education. The right of the State to make laws requiring a parent to send his child to school between certain ages, as from four to twenty-one years, is well settled. The question of the parent's being obliged to send his child to the public schools or being forbidden to send his child to a private or parochial school, is not settled in some States; but it is being settled in favor of the parent. The Kentucky constitution contains this provision: “... nor shall any man be compelled to [pg 183] send his child to any school to which he may be conscientiously opposed.”610 The right of the State to supervise or inspect private and parochial schools under the police power of the State can not be questioned.611
344. Orphan Asylums, School Moneys.—In 1850 the New York Legislature enacted a law as follows: “The schools of the several incorporated orphan asylums within the State other than those in the city of New York, shall participate in the distribution of the school moneys in the same manner and to the same extent in proportion to the number of children educated therein, as the common schools in their respective cities and districts.” The court ruled that moneys devoted by the constitution to the State for the support of common schools could not be distributed under the act, for the reason that such asylums are not public schools; but moneys from other sources might be paid for the education of such orphan children in proportion to their number to those educated in the common schools of their respective cities and districts.612 The schools kept by the Roman Catholic Orphan Asylum [pg 184] Society of the city of Brooklyn, are not common schools within the meaning of the constitution, and a provision of law that such schools should share in the distribution of school moneys raised by the State was void.613
345. Contract, Direct Payment, Lease.—No school of any denomination or sect is entitled to public moneys for its support, either by contract for the education of students therein or by direct payment from the government.614 A school conducted by the Catholic Church in which religious instruction is given to Catholic children is a sectarian institution within the constitutional provision against using public funds for sectarian purposes; but public school money expended for such a school conducted by this school district could not be recovered by suit against the school officers.615 Also, a school maintained as a charity under direction of trustees elected by the town where they must be of a certain religion, is not entitled to public moneys.616 But the lease of a part of a parochial school building or the basement of a church for public school purposed [pg 185] does not violate the law.617 In the States of Maine, Iowa, Massachusetts, Illinois, Ohio, Kansas, and Texas, the reading of the King James Bible and the singing of hymns and saying prayers have been held not sectarian.618 But in Wisconsin, the court ruled the other way.619
346. Teacher, Lord's Prayer, Exercise.—“A public school teacher, who, for the purpose of quieting the pupils and preparing them for their regular studies, repeats the Lord's Prayer and the Twenty-second Psalm as a morning exercise, without comment or remark, in which none of the pupils are required to participate, is not conducting a form of religious worship or giving sectarian or religious instruction.”620 Substantially the same rule applies in Pennsylvania.621 However, similar religious exercises conducted by Catholic teachers have [pg 186] generally been held sectarian and not permissible in public schools.622
347. Ohio, Directors, Bible.—The constitution of the State of Ohio does not enjoin nor require religious instruction or the reading of religious books in the public schools. The board of directors of a district has charge of the instruction and books to be used therein, and their official discretion will not be interfered with. Therefore, they were authorized to have the Bible read at the opening of the school.623
348. Public School, Bible, Prayer.—The committee having control of a public school may make a rule requiring the school to be opened by reading from the Bible and prayer every morning, and that each child shall bow the head during such prayers; that any scholar shall be excused from bowing the head whose parents request it; and when any scholar refuses to obey such rule and his parents refuse to request that he shall be excused, the committee may exclude such scholar from the school.624
[pg 187]349. Text-Books, State.—The State has the power to grant authority to the State Board of Education to select and prescribe text-books to be used in the public schools of the State.625
350. Bible, Conscience, Constitution.—The parent of a child expelled from the public school can not maintain an action against the school committee by whose orders it was done. In the same case it was held that a rule requiring every scholar to read a particular version of the Bible, though it may be against the conscience of some to do so, does not violate the letter or spirit of the constitution.626
351. Schoolhouse, Sunday-School Purposes.—The inhabitants of a school district have no right to use the schoolhouse for religious meeting on Sunday against the objection of any taxpayer in the district, notwithstanding that the officers of the district granted such right. A taxpayer may obtain an injunction against such use, although the injury to him be very slight, as he has no other remedy.627 A district school board can not authorize the use of the schoolhouse for any other than school purposes.628
[pg 188]352. Child, Immoral Character.—The school committee in order to maintain purity and discipline, may exclude therefrom a child whom they deem to be of licentious or immoral character, although such character is not manifested in acts of licentiousness or immorality within the school.629
353. Parents, Studies, Teacher.—The requirement of a teacher that a scholar in grammar shall write English composition is a reasonable one, and refusal to comply therewith in the absence of a request from his parents that he be excused therefrom, will justify the expulsion of a scholar from school.630 But when a parent selects certain studies that the law provides to be taught for his child to study, the teacher has no right to insist that the child shall take some other study and inflict punishment to enforce obedience.631
354. Chastisement, Cruel.—The chastisement of a scholar by the schoolmaster must not be excessive or cruel, but it should be reasonably proportioned to the offense and within the bounds of moderation.632
[pg 189]355. Schoolmaster, Authority.—Although a schoolmaster has in general no right to punish a pupil for misconduct after the dismissal of the school for the day and the return of the pupil to his home, yet he may on the pupil's return to school punish him for any misbehavior, though committed out of school, which has a direct and immediate tendency to injure the school and to subvert the master's authority. The fact that the master acted in good faith will not excuse him from damages for the punishment of a scholar where the punishment is clearly excessive and unnecessary. However, where there is a reasonable doubt the master should have the benefit of it.633
356. Force, Assistance.—And where a scholar in school hours places himself in the desk of the instructor and refuses to leave it on the request of the master, the master may immediately use such force and call to his assistance such aid from another person as may be necessary to remove the scholar. The same rule would apply to any one who is not a scholar and intrudes upon the school.634
357. White, Unmarried.—Before the adoption of the fourteenth amendment it [pg 190] was necessary in most States that in addition to the child being under twenty-one years of age, he must be of white blood and unmarried.635 In Ohio, negroes, Indians, and children of less than half white blood, were not entitled to the benefit of the school fund; and even where this would entirely exclude from school children not sufficient to form a district, still it was held that such children could not attend the white school.636
358. Facilities, the Constitution.—So long as abundant facilities are given for the education of all the children of a district, it is not a violation of the constitution of the United States to keep negro and white people separated. The same rule applies to courts.637
359. Residents, Public Schools.—Children in a German Protestant orphan asylum are not “children, wards, or apprentices of actual residents” in the district of the asylum, and therefore are not entitled to enter the public schools of the district.638
[pg 191]360. Board, Majority.—Two of the three members of a school board have no authority to act by themselves, and their individual agreement to dismiss a teacher is void. A school board can only act at a duly called meeting of the board, and then the majority vote duly taken decides.639