
    Petty et al. v. Tooker at al.
    
    
      Meligious Societies.—Church Government.
    
    A religious society, incorporated under the act of 1813, c. 60, lias the right to change its form of church government from congregational to presbyterian; the statute gives it no denominational character, where the certificate of incorporation is silent upon the subject.
    A corporator, otherwise qualified to vote, .does not lose his right, by renouncing the doctrine and ecclesiastical government theretofore recognised by the congregation.
    'The trustees have the control of the temporalities, and, consequently, may determine who shall conduct the religious services; their title to office is not affected by a change in doctrine or church government, either on their part, or that of the congregation.
    Parish of Bellport v. Tooker, 29 Barb. 256, affirmed.
    ^Appeal from the general term of the Supreme Court, in the seventh district, where judgment was entered in favor of the defendants, in a case tried before Emmott, J., without a jury.
    This was an action of ejectment for a church building, situated in Bellport, in Suffolk county, in which both parties claimed to be trustees of the Parish of Bellport.
    It appeared from the evidence, that, in July 1836, a congregational church was organized in the .village of Bellport, its ecclesiastical officers chosen, and a minister invited to preach. On the 8th March 1843, a meeting of the congregation was duly held Recording to law, and they "became incorporated as a religious society, under the act of 1813, by the name of the Parish of Bellport. The ■certificate of incorporation made no mention of any denominational character. The church property for which this -suit was brought was conveyed to the trustees of this 'corporation, and they and their successors continued to manage the temporalities, without question, until 1852. Before this time, however, disputes had occurred in the respect to the employment of a preacher, and a Presbyterian party had grown up in the congregation. In November 1851, the trustees called a meeting of the society, to determine the disputes, at which a majority voted in favor of connecting the church with the Presbyterian body. A Presbyterian church was thereupon organized, and a minister installed, who preached regularly in the church building. The Congregational minister, however, continued to officiate therein, though at different hours in the day.
    In February 1852, pursuant to a notice given by the Presbyterian minister, by direction of a majority of the board of trustees an election was held for trustees, *which was regularly conducted, no member of the society being excluded from voting, and two of the old trustees were re-elected. Tho defendants were the regular successors of this board. Iu the same month, another election was held, under a notice given by the Congregational minister, at which members who adhered to the Presbyterian organization were excluded from voting. The plaintiffs were the successors of the hoard thus elected.
    The judge decided that the election held in 1852, by the Presbyterian party was valid, and that the defendants were the legitimate trustees; and judgment having been entered in their favor, which was affirmed at general term, this appeal was taken.
    Miller, for the appellants.
    
      Buffett, for the respondents.
   Selden, J.

This is a contest between two sets of individuals, each claiming to be trustees of the Parish of Bellport; and the action is brought to recover possession of the church edifice, and the lot upon which it stands; from which the plaintiffs, as they allege, have been excluded by the defendants. The first position taken by • the defendants is, that their title to the property cannot • be tried in this action, but that the plaintiffs must resort o the mode prescribed by statute for testing their rights.

The present statutory provision on the subject is contained in the Code; § 432 provides that an action may brought *by the attorney-general-, in the name of the People of the State, upon his own informa-tion, or upon the complaint of any private party, against any person who shall usurp or intrude into any public office, or “ any office in any corporation created by the authority of this state.” This, no doubt, is, in ordinary cases, the most appropriate and convenient way of trying- the title of any one to a' corporate office; and in cases where no right of property is invaded, it is frequently the only way. But the legal title of the church and lot in question here, is absolutely vested in the trustees of the corporation; and I am inclined to the opinion, that if those who are justly entitled to that office have been wrongfully excluded from the possession and control of the property, they may maintain an action, in their own names, to recover that possession. I have, however, given to this question but a slight examination, for ■the reason that, in the view I take of the case, it is not important to settle it. Neither have I examined very •critically to see whether the case shows an actual exclusion of the plaintiffs by the defendants; but have assumed, as the counsel on both sides seem to have assumed, that an ouster of the plaintiffs, in their character as trustees, though not as individual corporators, is established. The question then is, upon the right of the plaintiffs to be considered as the trustees of the corporate body. The corporation itself was unnecessarily and improperly made a party, and will be disregarded.

The whole theory of the plaintiffs’ case rests obviously upon the assumption that as the religious society in Bell-port was, from its commencement in 1836, to its incorporation in 1843, congregational in its character, this feature of Congregationalism entered as an element into the act of incorporation, so that the society became incorporated, not merely as a religious, but as a congregational society.

This assumption is clearly unfounded. Corporations formed under the 3d section of the act of 1813, have no denominational character, nor can such a character be in any manner engrafted upon them. That portion of the members, organized into a separate body, called the church, may belong to a peculiar ^'denomination, but it has no power to impress its distinctive character upon the corporation, so as to render it ineffaceable by the voice of a majority of the corporators.. These two bodies, viz., the corporation and the church, although one may exist within the pale of the other, are in no respect correlative. The objects and interests of the one are moral and spiritual; the other deals exclu- • sively with things temporal and material.

The existence of the church proper, as an organized body, is not recognised by the municipal law; nor does its existence or non-existence, or its denominational character or connections, in any manner affect' the legal nature of the corporation. Each, as a body, is entirely independent, and free from any direct control or interference by the other; and yet it is -easy to see, that the majority of the corporators, if so disposed, may, through their control over the property and revenues of the society, exercise an important incidental influence upon the “character and destinies of the church. The present case illustrates the manner in which this influence is exerted. The plaintiffs’ counsel is clearly mistaken, in supposing that the meeting of the 28th of November 1851, wrought the change of which he complains. Even if that had been a meeting of the members of the - Parish of Bell-port, instead of being, as it was, a meeting of the inhabitants of the village of Bellport, its proceedings could, per se, have had no effect upon the sectarian character of the society. That depended upon the rules and ordinances of the church, with which the corporation, as such, had nothing whatever to do. Neither the proceedings of that meeting, nor the subsequent action of the Presbytery, in organizing a presbyterian church, were in themselves, of any legal consequence. They were only important, as indicative of the views and sentiments of a majority of the members of the society, and of the manner in which they would be disposed to exercise their legitimate corporate powers.

The change in the character of the congregation, of which the plaintiffs complain, has been brought about, not by the proceedings of the Presbytery, or the fesolUtians of the society, *b"ut by the action of the < i j trustees, in employing a presbyterian clergyman, and opening the meeting-house to his ministrations. This they had a legal right to do. The trustees are the representatives of the corporate body, and the statute invests them with extensive powers. They are entitled to the possession and management of all the property of the corporation,' and aré empowered to exercise its entire administrative functions. The legislature has been careful to guard against the abuse of this authority, by providing, in § 8, that the salary of the minister shall be regulated, not by the trustees, but by a majority of the corporators, at á riieeting called for that purpose. Subject to this important and most eihcient" check, the trustees have the undoubted power of determining by whom theo pulpit shall be occupied. It is quite apparent, that this power, which the statute plainly confers, must of necessity give to the trustees and a majority bf the corpora-tors', when united, virtual control over the forms and ordinances to be observed. The act for the incorporation of religious societies was obviously framed with a view tó, áhd in accordance with, that just and soiind principle which lies at the basis of all our civic institutions, viz., that in every organized society, the controlling power should be in the hands of the majority.

This may, in some instances, as perhaps it does in the present instance, operate with severity and apparent injustice, by enabling those who have recently become members of the society, if in a majority, and so disposed, to change its religions’ character and modes of worship, against the will of its original founders and chief contributors. But the evil arising from these rare cases is more than counterbalanced by the effect of this legislation in putting an end to religious controversy, and removing from the civil tribunals a species of litigation with which they are in general quite unqualified to deal.

But Avhile our laAvs have thus secured to every incorporated "religious society the power, as a general rule, to modify, from time to time, its ordinances and forms, so as to harmonize Avith the víbavs and wishes of the majority of its members, they also afford to those Avho may desire it ample means of guarding ^against any radical change. If a body of persons of homogeneous viervs, upon becoming incorporated, are desirous of maintaining unchangeable forms, a uniform faith, and permanent religious connections, there are two modes in Avhich this object can be accomplished. One is, by causing their church edifice and lot to be conveyed to the society, upon the express condition that it should be for ever thereafter devoted to the purposes of religious AATorship by a congregation m tintaining a certain faith, and observing certain prescribed ordinances and forms. Such a condition inserted iñ a deed to the society, if definitely and clearly expressed, Avould be valid, and Avould, no doubt, operate as an effectual guarantee against any change in the religious character of the society.

But the provisions of the act itself, under which such societies are incorporated, suggest another mode by Avhich permanence and steady and unchangeable forms may be secured; §7 provides that no person shall become a member of silch society, after its incorporation, and entitled to vote at any election, unless he has been “ a stated attendant ” on the worship of the society, for at least one year before such election. Now, the society has obviously, through its trustees, full power_ to determine what persons it will thus admit to membership; it is under no obligation, more than any other organized association, to receive obnoxious persons, or those likely to create either disturbance or division. The trustees own and control the church edifice, and are expressly authorized, by § 4, “ to regulate ” the renting of the pews, and may, of course, adopt such rules on the subject as they may deem expedient. The act evidently contemplates that the society will, or, at least, mayr, discriminate among those desirous of uniting with it. The latter portion of § 7 provides that “ the clerk to the trustees shall keep a register of the names of all such persons as shall desire to become stated hearers in the said church, congregation or society, and shall therein note the time when such request was made; and the said clerk shall attend all such subsequent elections, in order to test the qualifications of such electors, in case the same should be questioned.”

*This provision looks to a formal application, in each instance, to the corporate authorities, for admission into the society; and the trustees may, no doubt, adopt such regulations that no pew can be rented originally, or sold or assigned to a new occupant, without their previous consent, or even that of the society itself. If, however, a society, instead of adopting these appropriate and effectual precautions, chooses to throw open its doors to the public at large, and invite in new members, irrespective of their personal character or religious tendencies, they have no reason to complain that the powers and privileges of their new associates, whom they have voluntarily received, and of whose contributions they avail themselves, should be the ¡same as their own.

It follows, from these principles, that the change in the religious character of the Parish of Bellport has been produced by the exercise' by the trustees and the majority of the corporators of their legitimate powers. The idea upon which the plaintiffs rest the regularity of their election as trustees, viz., that the defendants and those who elected them, were to be regarded as seceders from the society, has no legal foundation. Seceders from Congregationalism, in a religious sense, they may have been; but this could not disfranchise them as corporators. The corporators are those who can vote at the elections; and their qualifications are, as we have seen, prescribed by the statute. If they have been stated attendants upon the worship of the society, for one year next before the election, they are entitled to vote. Nothing else is required ; and it is plain, that there is no power which can add to these qualifications, or which can properly say to one who possesses them, that unless he also adheres to the peculiar faith and governmental forms of the society, he cannot vote. Every election at which persons are prohibited from voting, upon any such ground, is of course illegal. Secession from the doctrines or faith of the church is a purely religious offence, and the ecclesiastical judicatories alone can take cognisance of it.

As between the two elections, therefore, of the 21st- and 24th of February 1852, to' which the plaintiffs and defendants * respectively trace their title as trustees, there is no doubt which is to be considered as legitimate and regular. It would be difficult, under the proof, to discriminate between these two elections, in respect to the regularity of the meetings at which they took place. Each purports to have been called pursuant to the statute; and hence, if their proceedings had been properly conducted, there would have been nothing but the order of time to give precedence to either. But the case shows that, at the election on the twenty-fourth, all those member's of the corporation who adhered to the Presbyterian organization were prohibited from voting, on the ground that they were seccders from the society; this is entirely fatal to that election, and no rights dependent upon it can have any validity. No such objection attaches to the election of the twenty-first, and there is nothing whatever to impeach its regularity. The defendants, therefore, who deduce their title by regular succession from this election, must be regarded as the legitimate and rightful trustees of the corporation. The judgment of the supreme court must be affirmed.

Judgment affirmed. 
      
       But see Gram v. Evangelical Lutheran German Society, 36 N. Y. 161.
     
      
      
         See St. Jacob’s Lutheran Church v. Bly, 73 N. Y. 323.
     
      
       The gist of this decision lies in the fact that the certificate of incorporation contained no reference whatever to any denominational character in the parties incorporated. It was followed in Burrel v. Associate Reformed Church, 44 Barb. 282. And in Watkins v. Wilcox, 4 Hun 220, s. c. 66 N. Y. 654, it was ruled, that a majority of the members of such a corporation have the right to control the corporate "body, in accordance with their belief, free from any ecclesiastical restriction. Such statutory incorporation does not contemplate or recognise the devotion of the corporate property to the support of a perpetual and unchangeable system of religions faith and doctrine. Gram v. Evangelical Lutheran German Society, 36 N. Y. 161.
     