Craig v. First Presbyterian Church
| Decision Date | 06 January 1879 |
| Parties | Craig et al. <I>versus</I> First Presbyterian Church of Pittsburgh. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and TRUNKEY, JJ. WOODWARD, J., absent
Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1877, No. 266.
M. W. Acheson and George W. Guthrie, for exceptants.—The subject was not clearly expressed in the title, and the act was unconstitutional: art. 3, sect. 3. of Constitution; State Line and Juniata Railroad Co.'s Appeal, 27 P. F. Smith 431; Allegheny County Home's Appeal, Id. 80; Dorsey's Appeal, 22 Id. 195. The legislation in the Act of 1877 is not germane to the subject of the Acts of 1874 and 1876. The title of the Act of 1877 was misleading. The privilege of burial in the churchyard was purchased, and there was a contract that the bodies should remain undisturbed by the church. In the absence of express authority, members of a corporation cannot vote by proxy: Phillips v. Wickham 1 Paige 578; Taylor v. Griswold, 2 Green Ch. 226; Brown v. Commonwealth, 3 Grant 209. The "two weeks public notice" required by the act was not given. The ground proposed to be appropriated for the new buildings should have been defined before the holding of the congregational meeting, so that the meeting could act intelligently; or, if that was not necessary, it should at least have been defined in and by the petition: O'Hara v. Pennsylvania Railroad Co., 1 Casey 445. The purposes indicated in the petition "Sunday school and lecture-room," are not the "religious purposes only" contemplated by the act.
David W. Bell, contra.
It was provided by the first section of the Act of 18th of April 1877, Pamph. L. 54, "That when by the growth of cities and the opening of incorporated cemeteries in the vicinity thereof, or from other causes, any burial-ground belonging to or in charge of any religious society or church, directly or through trustees therefor, has ceased to be used for interments, the courts of Quarter Sessions of the several counties of this Commonwealth, upon petition of the managers, officers or trustees of such society or church, setting forth that the erection, extension or improvement of buildings for religious purposes of such society or church are hampered and interfered with, and the welfare of such religious society or church is injured to the detriment thereof and of the public good, and after four weeks' advertisement of hearing in open court for the purpose, may, after a full hearing of the parties therein, proofs and allegations, authorize and direct the removal of the remains of the dead from so much of such burial-ground as may be needed for buildings for religious purposes only, by the managers, officers or trustees of such society or church; Provided, that no such application shall be made by the managers, officers or trustees of such society or church, except in pursuance of the wishes of a majority of the members of such society or church, expressed at a church election, held for that purpose after two weeks' public notice." Under this act, the trustees of the First Presbyterian Church of Pittsburgh, presented their petition to the Court of Quarter Sessions of Allegheny county, setting forth, inter alia, that the burial-grounds attached to and belonging to said church had ceased to be used for the interment of the dead; that a portion of said ground was needed for the erection of a new Sabbath school building and lecture-room; that such building was intended only for the religious purposes of said church, and that the same is interfered with, to the detriment of the said church and the public good; that in accordance with the terms of said Act of Assembly, at the request of the trustees of said church, public notice was given from the pulpit in said church on the three Sabbath days preceding the 18th of April 1877, that on said day, a meeting of the congregation would be held in the church, for the purpose of voting whether or not the trustees should be requested to petition the said court to authorize and direct the removal of the remains of the dead from a portion of the burying-ground of the church, needed for the erection of a new Sabbath school building and lecture-room; that thereupon, after said public notice, a meeting of said congregation was held at the time and place appointed, which was duly organized, and at which the wishes of a majority of the members of said congregation were expressed in favor of such removal, and a resolution was passed, directing the trustees to petition the court for that purpose. The petition was so proceeded in, that said court subsequently made a decree granting the prayer of the petitioners, and ordering the removal of the remains of the dead from a portion of said burial-ground, specifying the same by metes and bounds. The plaintiffs in error filed a number of exceptions to the said petition and decree, which were overruled by the court below, whereupon said plaintiffs removed the record to this court by writ of certiorari. The assignments of error, which are somewhat numerous, may be reduced to four heads, viz.: 1. The Act of April 18th 1877, under which the proceedings were had, is in violation of the Constitution, for the reason that the subject of said act is not clearly expressed in the bill; 2. That the proceedings are irregular; 3. That the case of the petitioner is not within the purview of said Act of Assembly; and 4. The legislature had not the power to authorize the removal. We will consider these objections in the order in which they are stated.
All the presumptions are in favor of the constitutionality of an Act of Assembly. It comes to us with the seal of approval of two of the co-ordinate departments of the government. To doubt is to decide in favor of its constitutionality. It is only in a clear case that we are justified in declaring an act to be unconstitutional. We have no such clear case presented by this record. The Act of April 18th 1877, was a supplement to the Act of 13th May 1876, which was a supplement to the Act of 19th May 1874, and is germane to the subject of the original bill. This is all that is required: State Line and Juniata Railroad Company's Appeal, 27 P. F. Smith 431. They all relate to cemeteries and the removal of the dead therefrom.
There are several objections to the regularity of the proceedings. The Act of Assembly does not specify how notice shall be given to the church meeting to be called for the purpose of voting on the question of the removal of the remains of the dead from the burying-ground. It merely says such meeting shall be held after two weeks' "public notice." The record shows that notice was given from the pulpit of the church for the three Sabbaths immediately preceding the meeting. This is the usual manner of giving notice to the members of a church, as to matters pertaining to the church. It is certainly "public notice," and in the absence of any specific direction in the Act of Assembly, or in the charter of the church, must be held to be sufficient. The objection that the ground proposed to be taken is not sufficiently described is wholly untenable. It is set out in the decree by metes and bounds. It was also alleged that the application was not made in pursuance of the wishes of a majority of the members of the church, as required by the act. This raises a question of fact that has been decided adversely to the plaintiffs by the court below. The ground of this objection is that the votes by proxy were illegal. I concede that they were so. It is not a common-law right. The right of voting at an election of an incorporated company by proxy is not a general right, and the party who claims it must show a special authority for that purpose: Angell & Ames on Corporations, §§ 127, 131, 493; Taylor v. Griswold, 2 Green (N. J.) 223. But rejecting all votes by proxy there was still a majority. Of the persons present at the meeting, one hundred and sixty-three voted in favor of the resolution and four voted against it. It is said, however, that this was not a majority of all the members of the congregation. This is true. But it was a majority of all who were present in obedience to the call. Those who did not attend must be presumed to have assented. It is well settled upon authority that the minority present were bound by the action of the majority. In St. Mary's Church Case, 7 S. & R. 517, the rule is thus laid down by GIBSON, J.: "The fundamental principle of every association for the purposes of self-government is, that no one shall be bound except with his own consent, expressed by himself or his representatives; but actual assent is immaterial — the assent of the majority being the assent of all; and this is not only constructively but actually true; for that the will of the majority shall, in all cases, be taken for the will of the whole, is an implied but essential stipulation in every compact of the sort; so that the individual who becomes a member assents beforehand to all measures that shall be sanctioned by a majority of the voices." This decision is cited approvingly in Angell & Ames, and the same principle is recognised in Presbyterian Congregation v. Johnston, 1 W. & S. 9. The rule is enforced daily in practice. It has never, to my knowledge, been doubted that at a church meeting, either regular or specially called with proper notice, the vote of the majority is binding upon the congregation. It may be asked, however, what is meant by the majority? Does it mean the concurrence of the major part of those who happen to be present at a regular corporate meeting, or does it mean a concurrence of a majority of the whole body? There is this distinction between a corporate act to be done by a definite number of...
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