Craig v. First Presbyterian Church of Pittsburgh

• Decision Date: 06 January 1879
• Citation: 88 Pa. 42
• Parties: Craig et al. v. First Presbyterian Church of Pittsburgh.
• Court: Pennsylvania Supreme Court

88 Pa. 42

Craig et al. v. First Presbyterian Church of Pittsburgh.

Supreme Court of Pennsylvania.

January 6, 1879

Nov. 8 9, 1878.

1. Where an Act of Assembly is entitled a supplement to a former act, and the subject thereof is germane to the subject of the original act, its subject is sufficiently expressed to meet the requirements of article 3, section 3, of the Constitution.

2. An Act of Assembly in providing for the removal of dead bodies from the burial-grounds of religious societies directed that no application should be made therefor " 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."

Held, that the majority intended by the act was a majority of those present and voting at such election, and that those who did not attend must be presumed to have assented.

Held, further, that a notice from the pulpit on Sunday was a sufficient " " public notice" to meet the requirements of the act.

3. The right of voting by proxy at an election of an incorporated company is not a general right, and the party who claims it must show a special authority for that purpose; but where rejecting all the votes cast by proxy there is still a majority the minority are bound by their action.

4. There is a distinction between a corporate act to be done by a definite number of persons, and one to be performed by an indefinite number; in the first case no act can be done unless a majority of the whole body are present; in the second a majority of those who appear may act.

5. Sunday school rooms and lecture-rooms are clearly included in the " religious purposes" intended by the Act of April 18th 1877, and buildings erected therefor do not lose their religious character because of their occasional use for fairs or other benevolent objects.

6. The legislature has power to authorize the removal of the remains of the dead from cemeteries, and may delegate such power to municipalities.

7. The right of sepulture in the burying-ground of a church is not an absolute right, but a privilege to be enjoyed so long as the ground continues to be the church ground, and subject to any right which the church possesses to abandon it for purposes of interment. To entitle one, therefore, to raise the point that an Act of Assembly, authorizing the removal of the dead, impairs the obligation of a contract, it is not sufficient to show that he is a pew-holder in the church, or has relatives interred in its grounds; but he must show by the record that he has rights of sepulture in said grounds or some contract relation with the church.

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.

The proceedings in the court below commenced by a petition on the part of the Trustees of the First Presbyterian Church of Pittsburgh, asking the court for a decree to remove the remains of the dead from a portion of the burial-grounds of said church.

The facts, in substance, were these: On May 19th 1874, the General Assembly passed " An act (Pamph. L. 208) relative to burial-grounds and cemeteries in incorporated boroughs," which authorized the Courts of Quarter Sessions " to make such orders and decrees for the regulation and care of burial-grounds in incorporated boroughs, as the public shall require; and when any such burial-ground shall become so neglected as, in the opinion of said court, to become a public nuisance, the court may direct the removal of the dead therefrom, by the proper borough authorities, to some other properly regulated burial-ground."

On May 13th 1876, an act was passed (Pamph. L. 159) entitled " An act supplementary to an act, entitled ‘ An act relative to burial-grounds and cemeteries situated in incorporated boroughs,’ approved the 19th day of May 1874, changing the title of the said act and authorizing the court to make orders and decrees required by the act, and to enforce the same by process."

On the 18th of April 1877, an act was passed (Pamph. L. 54), entitled " A supplement to an act entitled ‘ An act supplementary to an act relative to burial-grounds and cemeteries situated in incorporated boroughs, approved the 19th day of May 1874, changing the title of said act and authorizing the court to make orders and decrees required by the act, and to enforce the same by process,’ approved the 13th day of May 1876, further empowering courts to direct removal of remains in boroughs and cities, from burial-grounds where interments have ceased and such remains interfere with religious buildings or trusts."

The first section of this act of 1877 will be found in full in the opinion of this court.

On April 28th 1877, the Trustees of the First Presbyterian Church petitioned the Quarter Sessions, reciting the above Act of April 18th 1877, setting forth that their burial-ground was no longer used for interments, and praying for a decree directing them to remove the remains of the dead from so much of the burial-ground of the church as might be required for buildings for a Sabbath school and lecture-room.

The petition further set forth that the application on the part of the trustees was made to the court in pursuance of a resolution passed at a meeting of the congregation, of which two weeks' notice had been given from the pulpit of the church. There were 712 members in the church at the time of this meeting who were entitled to vote. For the resolution there were polled in its favor 439 votes, of which 163 were personally cast and 276 by proxy. Against it there were 14 polled, of which 4 were cast personally and 10 by proxy.

Isaac Craig, a pew-holder and member of the church, who had relatives buried in the churchyard, and John B. Guthrie, who had two children and other relatives buried there, appeared in court and filed exceptions, as follows:--

1. The subject of the Act of April 18th 1877, under which the petitioners are proceeding, is not clearly expressed in the title as required by art. 3, sect. 3 of the Constitution. 2. Said act is unconstitutional. 3. " Two weeks public notice" of the church meeting for the purpose of voting upon the question of the removal of the remains of the dead, & c., as required by said act, was not given. 5. The ground to be taken for the proposed new building is not sufficiently defined, either by the petition or otherwise. 6. The case of the petitioners is not within the purview of the Act of Assembly. 7. The purposes to which the proposed new buildings are to be put are not of the religious purposes contemplated by the Act of Assembly. 8. There is no necessity for the proposed encroachment upon the graves of the dead. 9. The ground proposed to be taken for the purposes of said buildings should have been defined before the action of the congregational meeting. 10. The testimony shows that there are 712 members of the First Presbyterian Church of Pittsburgh; that of this number only 163 members attended the meeting held April 18th 1877, and voted in favor of the resolution authorizing the trustees to apply to the Court of Quarter Sessions for leave to remove the remains of the dead from the graveyard, the remainder of the votes in favor of such application having been cast by proxies, without any authority of law. Therefore, the requirements of the proviso to the 1st section of the Act approved April 18th 1877, that no application should be made except in pursuance of the wishes of a majority of the members of the church expressed at a church election held for that purpose, have not been complied with.

A commissioner was appointed to take testimony, and after the coming in of the same, the court having signified their intention to grant the prayer of the petition, the counsel of petitioners submitted to the exceptants the draft of a decree specifying the ground to be taken by metes and bounds. The exceptants objected thereto, because " the ground described in and covered by the proposed decree is of greater extent, and, in part, upon a different location than that referred to and covered by the proofs in this case.

The court, Collier, J., overruled all the exceptions, and made a decree in accordance with the prayer of the petitioners. This action of the court was the error assigned by the exceptants, who took this writ.

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,...