
    St. Andrew's Church of Tecumseh, Nebraska, appellee, v. Michael Shaughnessy et al., appellants.
    Filed February 6, 1902.
    No. 9,850.
    Commissioner’s opinion, Department No. 2.
    1. Appeal: Record: Pleading: Evidence. Upon appeal in an action in equity, this court must take the evidence as it is in the record, and determine whether the decree appealed from can be supported upon the pleading's and evidence as taken in the lower court.
    3. Corporation: Members: Right oe Minority. A minority of the members of a corporation organized under the act of 1883, entitled “An act for the incorporation of churches and parishes and religious societies,” have no right to retain possession of the corporate property, as against the corporation itself, for the purpose of compelling the corporation to recognize their rights as members.
    Appeal from the district court for Johnson county. Heard below before Letton, J.
    
      Affirmed.
    
    
      Samuel P. Davidson and W. JI. Eelligar, for appellants.
    
      Sawyer, Snell & Frost, contra.
    
   Sedgwick, C.

This action was begun in the district court of Johnson county by the plaintiff, St. Andrew’s Church of Tecumseh, to enjoin the defendants from intermeddling with the church property, and from hindering the plaintiff church, and the members, comprising the plaintiff corporation, in the enjoyment of their rights and franchise, and from interfering with the right of the pastor of the church to use and occupy the parsonage and to occupy the pulpit of the church, and from excluding the plaintiff and the members of the plaintiff corporation and communicants from the church building, and from interfering with them in celebrating divine worship in the church, and to require the defendants to surrender to the plaintiff the key to the parsonage and church building, and all other property of the plaintiff in their possession, with a general prayer for equitable relief. The answer admits that the defendants hold the property and exclude plaintiff therefrom, and attempt to justify so doing. There was a trial by the court, and general findings for plaintiff, and decree granting the relief prayed. The defendants appeal to this court.

It is established by the pleadings and evidence and admissions of the parties that for some time prior to the year 1883 the Catholic church of Tecumseh existed as an organized church, but unincorporated, and as such unincorporated church society it acquired the property in controversy, and the members of the church society constructed the buildings and furnished the property now in dispute. The money for this purpose was raised by voluntary subscriptions among the members and donations from other friends. In the year 1886, in accordance with the desire of the membership of the church and the church authorities, the church was incorporated under the act of the legislature of 1883, entitled “An act for the incorporation of churches, parishes, and religious societies.” Session Laws, 1883, p. 177. In pursuance of the provisions of the statute the bishop of the diocese, which then comprised the state, the vicar general, and the parish priest of the Tecumseh church, and two members of the church society who were selected by the society itself, convened at Omaha, and duly incorporated. The corporation so formed took the property in question, and it is admitted that it is still the owner of the title of the property in fee. The by-laws of the corporation provided that “the corporate powers of this corporation, except as otherwise provided by law, shall be exercised in all things in conformity with the principles and discipline of the Roman Catholic Church existing in the United States of America, and in conformity with the disciplinary statutes of the diocese of Omaha. This church is always bound to receive as pastor thereof, and as such members of such corporation as is provided in the articles of incorporation, such priest as the,Rt. Rev. Bishop of the Diocese, or, in his absence, Administrator of the Diocese, may from time to time appoint. When any pastor thereof shall be removed by the Rt. Rev. Bishop, Yicar General, or Administrator of the Diocese, such pastor shall cease to be a member of this corporation, and shall no longer be recognized as pastor.” After the corporation was organized, the diocese was divided so that the portion of the state south of the Platte became the diocese of Lincoln, and the present Bishop Bonacum became the bishop of the diocese, and the parish in which St. Andrew’s church of Tecumseh is situated became subject to his jurisdiction. The bishop appointed Father Murphy the priest of the parish, or rector, of St. Andrew’s church, and after he had served for a time he was removed by the bishop and appointed to a new mission. The bishop then appointed Father Carriker to be the priest of the parish, but Father Murphy, for some reason not disclosed in the evidence, refused to acquiesce in this action of the bishop, and the bishop notified the communicants of the church that Father Murphy was acting without right, and that the Rev. Father Oarriker was properly constituted priest, and was qualified with authority to minister in spiritual matters to the congregation. Father Murphy appealed from the order of the bishop, and, his appeal having been determined against him, left the parish and accepted another mission. The defendant Michael Shaughnessy, who was one of the original incorporators, and the defendant Michael Murphy, who appears to have been selected by a vote of the church membership to act as lay member of the corporation, refused to allow the new appointee of the bishop to act as priest of the parish and to obtain possession of the church and parsonage, and after some trouble over the matter Father Oarriker found other quarters for his home and for the church services, and a part of the congregation attended his services and supported him, but the larger part attended the services at the church, which were conducted by Father Murphy, and after he had accepted another mission no services were held in the church. When Father Murphy left. the parish he appears to have delivered the keys of the church and parsonage to the defendant Michael Shaughnessy who locked the church and parsonage and, against the authority of the bishop, refused to allow his appointee the use of the property.

The defendants say in their brief: “The only real contention or controversy between this people and the bishop is as to the right of the people to select their lay-trustees. Whenever the bishop is made to submit to this right on the part of this people, they are willing and offer to comply with every other request legitimately made of them, without any judgment of this or any other court.” The contention seems to be that these defendants Shaughnessy and Murphy are in fact the two lay members of this corporation, and that the bishop in refusing to recognize them as such, and in attempting to appoint others in their places, has so far violated the rights of the body of communicants composing the St. Andrew’s church of Tecumseh as to justify those communicants, through the two lay members of the corporation appointed by them, in excluding the bishop and his appointee from the use of the church and property. The proposition that Shaughnessy and Murphy would have the right to exclude the bishop and his appointees from the use of the property until the bishop should recognize them as members of the corporation can not be sustained. There is no doubt that the bishop, the vicar general, and the priest appointed by the bishop constituted the majority of the corporate members. Whatever may have been the rights of the communicants and body of church members at the time this corporation was formed, it is conceded by all parties, in the pleadings and in the evidence, that this corporation was formed for the purpose of taking and holding the property in question, and also for the purpose of controlling the use of the property in accordance with the policy and usages of the Roman Catholic church as organized in the United States of America. Indeed, it is admitted that this corporation owns all of the property in question. The communicants and body of church members of the local church participated in the organization of the corporation, and in transferring this property to the corporation so organized, and there can be no doubt of the right of the corporation to control the use of this property. It is alleged in the answer that an attempt has been made, and that there is danger that it will be renewed, to convert this property, and to divert it from the purposes for which it was intended. The trial court excluded the evidence tending to support these allegations, and therefore we can not consider this question. We do not want to be understood as recognizing the right of the corporation, or any of its members, to so convert the property, nor to intimate that a court of equity in a proper proceeding would not prevent such conversion; but there is no evidence upon this point in the record, and whether the court did right in excluding this evidence can not be determined on this appeal. By the settled practice of this court, questions that may arise upon the rulings of the trial court in admitting or excluding evidence can only be presented to this court by proceedings in error. Upon appeal, this court must take the evidence as it is, and determine whether the decree is right upon the pleadings and evidence as taken in the lower court.

The trial court also refused to determine the question as to whether the defendants Shaughnessy and Murphy were members of the corporation, and as such entitled to-participate in the management and control of the property. As the articles of incorporation and by-laws provide that a majority of the five members of the corporation may act for the corporation in the control of its property and affairs, and a majority concurred in the appointment of the successor of Father -Murphy, it seems to be immaterial to this controversy whether the defendants Shaughnessy and Murphy, or the two members who were appointed by the bishop as their successors, were entitled to act as the lay members of the corporation, and therefore the refusal of the court to determine that question does not affect the merits of this appeal. Nor is it necessary to construe the language of the articles of incorporation and the by-laws relating to the selection of these lay members. The property in question belongs to the corporation, and is committed to its custody and control. Under the organization of this church corporation, the appointment and removal of its local or parish priest is committed to the bishop. The priest so appointed is a member of the corporation, and, with the consent of a majority of the members of the corporation is the authorized representative of the Roman Catholic church. Under the evidence in this record, the five members of this corporation, or a majority of them, are responsible for the care and custody, of the church property, and its use as contemplated in accordance with the usages of the Roman Catholic church.

Note. — Church.—Society.—Corporation.—Congregation.—Parish.—Devise. —Schism.—Church Property. — It is, we think, a matter of common observation that the terms “church” and “society” are popularly used to express the same thing, namely, a religious body organized to sustain public worship. Society v. Hatch, 48 N. H., 393, 396.

A statute prescribed that it should be lawful for the male persons belonging’ to any “church” to choose the trustees. The whole statute has reference to religious associations. A church (ecclesia) may be, first, a temple or building consecrated to the honor of God and religion; or, second, an assembly of persons united by the profession .of the same Christian faith, met together for religious worship. These give the legal, though the word has many popular definitions. In the statute, to which reference has been made, it appears to be used in the sense of the second of the foregoing definitions. Robertson v. Bullions, 9 Barb. [N. Y.], 64, 95, affirmed 11 N. Y., 243.

In one sense (and the common sense) the word “church” is understood to mean a number of Christian persons, agreeing- in their faith, usually assembling- together at one place, for purposes of worship— submitting to its ordinances, and receiving its sacraments. This is entirely distinct in meaning- from the word “church” as applied to a •corporation. In the former sense of the word, many persons are usually members of the church, and most commonly a. large majority, who neither are or can be members .of the corporation, — married women, infants, etc. When persons are incorporated by the name'of “church,” this can be regarded only as a name of designation, or at most, as indicating, when property is given to them, the trusts upon which it is given. Wilson v. Presbyterian Olmreh, 2 Rich. Eq. [S. Car.], 192, 198.

It is therefore recommended that the decree of the trial court be affirmed.

Oldham and Pound, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the decree of the trial court is

Affirmed.

Distinction between congregation and church pointed out in First Baptist Olmreh v. Wetherell, 3 Pai. Ch. [N. Y.], 296, 301.

Where a testator devised his estate to the Protestant Episcopal church in New Canaan, parole evidence wáá held admissible to show that the terms “church” and “parish” were by this denomination of Christians used indiscriminately, and in the same sense as society. Ayres v. Weed, 16 Conn., 291.

For meaning of paroehia, or parish, see Baker v. Pales, 16 Mass., 487, 498.

“As between two opposing factions of a religious association, land acquired, by the association before any schism arose will be adjudged the property of that faction which abides by the doctrines, principles and rules of church government which the united body professed when the property was acquired.” Reorganized Olmreh of Jesus Ghrist of Latter Day Saints v. Olmreh of Christ, 60 Fed. Rep., 937.— Repobteb.  