Dismukes v. State

• Decision Date: 01 February 1912
• Citation: 58 So. 195,176 Ala. 616
• Parties: DISMUKES ET AL. v. STATE EX REL. HILL ET AL.
• Court: Alabama Supreme Court

58 So. 195

176 Ala. 616

DISMUKES ET AL. v. STATE EX REL. HILL ET AL.

Supreme Court of Alabama

February 1, 1912

Rehearing Denied April 25, 1912.

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Information by the State, on the relation of Will Hill and others against I. L. Dismukes and others, in the nature of quo warranto, to oust respondents as trustees of a certain church. From a decree overruling demurrers to the petition respondents appeal. Reversed and remanded.

The case made by the petition is that the Sardis Baptist Church is a religious corporation, created and duly organized under the general laws of the state of Alabama providing for the incorporation of such bodies; that the corporation is the owner of valuable real property in Jefferson county, Ala valued at $3,000, which is by law subject to the control and management and custody of the legal trustees of said corporation. Relators are alleged to have been regularly elected by a majority of the membership of said church in attendance at the time of said election, as required by the rules and regulations of said church. It is then alleged that on the 1st day of January, 1909, the respondents named unlawfully usurped, intruded into, and exercised the offices of trustees in said church. It is then alleged that they are not entitled to exercise such functions, but that the relators are legally entitled to the same. The demurrers raise the proposition treated in the opinion.

C. B Powell, of Birmingham, for appellants.

Allen & Bell, of Birmingham, for appellees.

McCLELLAN J.

The right of the relators to invoke quo warranto against the respondents, who are assuming to act or serve as trustees of the Sardis Baptist Church, is contended by relators to rest in this phase of Code, § 5453: "An action may be brought in the name of the state against the party offending, in the following cases: (1) When any person usurps, intrudes into, or unlawfully holds or exercises, * * * any office in a corporation created by the authority of this state."

In Hundley v. Collins, 131 Ala. 234, 241, 32 So. 575, 90 Am. St. Rep. 33, it was affirmed that the members of the church (the statutes contemplate an existing religious body--a church) "became incorporated."

It has also become settled with us, as elsewhere generally, that an incorporated church consists of two distinct elements, viz the church proper and the corporation, which has relation alone to the temporalities of the institution. Christian Church v. Sommer et al., 149 Ala. 145, 43 So. 8, 8 L. R. A. (N. S.) 1031, 123 Am. St. Rep. 27; Hundley v. Collins, supra. The courts have no jurisdiction to...