Evenson v. Ellingson

• Decision Date: 11 January 1887
• Citation: 67 Wis. 634,31 N.W. 342
• Parties: EVENSON AND OTHERS v. ELLINGSON AND OTHERS.
• Court: Wisconsin Supreme Court

67 Wis. 634

31 N.W. 342

EVENSON AND OTHERS

v.ELLINGSON AND OTHERS.

Supreme Court of Wisconsin.

January 11, 1887.

Appeal from circuit court, Dane county.

Injunction.Pinney & Sanborn and J. M. Olin, for respondents, Evenson and others.

I. C. Sloan and Ollis & Helms, for appellants, Ellingson and others.

ORTON, J.

In the year 1844 two Norwegian Lutheran churches were organized on the principles of a Christian church,--one of them by regular members of the Lutheran church, and a congregation settled and living in the east part of Dane and the western part of Jefferson counties, on East Koshkonong prairie, in convenient neighborhood with each other, and was called “the Norwegian Lutheran Church of the Counties of Dane and Jefferson,” and afterwards, in common parlance, “the Eastern Church.” The other one was organized by similar members, and a congregation settled and living wholly in Dane county, on West Koshkonong prairie, and was called “the Western Church.” These churches, and their places of meeting for worship, were distant from each other about nine miles, and were both fully organized, with the proper ordinances and officers of independent, separate, and distinct churches, although for proper reasons they for a time employed the same pastor or minister, who administered to the same separately. These churches very soon took steps to build meeting-houses, and about 1845 or 1846 they did build meeting-houses of convenient access to these two distinct and distant congregations, and, in the place of the one originally built by the Eastern Church, there was another one constructed, and in the same place, which has been ever since, and still was up to the time of the injunction in this case, the regular and exclusive house and place of worship of the said Eastern Church and Congregation; and titles to church property, both real and personal, within said church and congregation, and used by them, have been taken, and still are, in said Eastern Church, by the name of the “Norwegian Lutheran Church on Koshkonong Prairie, in the Counties of Dane and Jefferson;” and said church has uninterruptedly continued to worship and administer the ordinances of the church at the same place, and in the same manner, and have adhered to the same doctrines and articles of Christian faith, until their interruption by said injunction, and has always been represented in and recognized by the regular synod of said general church as a separate and independent church in good and and proper standing.

It is not material to the question upon which this case is decided whether the Western Church has thus continued to worship in a proper form and manner, as a separate and independent church, in their own house of worship, within their congregation, like unto the Eastern Church or not; but it is nevertheless true that the said church has always maintained its separate, distinct, and independent organization to the present time, and both churches and congregations have always elected their trustees and all other officers by the electors of their respective and separate organizations, within their own meeting-houses. In 1854 it appears from the record introduced in evidence, but disputed by the respondents, that the said Eastern Church, after many years attempting to conduct the business of its temporalities by an independent corporate or civil organization of its own, took steps to organize its congregation and membership into a corporation under the Revised Statutes of 1849, but failed in some particulars to fully comply with said statutes; but from that time to the present said church has continued to exercise the functions and powers, and enjoy the franchises, of a corporation de facto, and has continued to elect its own trustees, and manage all its secular concerns as a corporation. For the purpose of organizing itself into a corporation as aforesaid, notice was given, to some extent according to the statute then in force, by said church, for a meeting of the congregation by the name of “the Norwegian Lutheran Congregation in the Counties of Dane and Jefferson,” to be held “at the Eastern meeting-house” on a certain day therein named. The certificate of what was done at said meeting, signed by the officers thereof, introduced in evidence, shows that “the Norwegian Lutheran Congregation of the Counties of Dane and Jefferson” met, or held a meeting, according to said notice, at the Eastern meeting-house, in the town of Christiana, in the county of Dane; that a majority of the members present chose the presiding officers thereof, and adopted a resolution “that this religious society be organized as a body corporate, by the election of nine trustees, hereafter to be called and known, in their corporate capacity, as ‘trustees of the Norwegian Lutheran Congregation in the Counties of Dane and Jefferson, State of Wisconsin.’ ” The said meeting accordingly elected a full board of nine trustees. There may be some evidence, by affidavits, (which, however, was contradicted by counter-affidavits,) that said meeting was composed of the joint congregations of the two churches, the Eastern and Western; but the writings and records introduced in evidence most certainly show that said meeting was exclusively that of the Eastern Church and Congregation as far as the true name of that original organization as a church and congregation is concerned, and the language was inappropriate to any other church and congregation than the Eastern Church, for no other had a congregation within both counties of Dane and Jefferson; and the Western Church and Congregation were exclusively within the county of Dane.

When the two churches and congregations passed by-laws, in 1853, for the government of both bodies, they provided that the trustees (separately elected by both bodies) should meet “every year December 1st, jointly with the pastor and deacons of the congregations, [in the plural,] for the purpose of considering the joint affairs of the congregation.” Right here, evidently, was the inception of this joint body, which has given the plaintiffs the pretext for claiming that there never was a distinct and separate corporation, de jure or de facto, of either church and congregation, but that there was one corporation for both, and which included both churches and congregations. But this language explains itself. There was a quasi body or organization of both bodies into one, but only “for the purpose of considering the joint affairs of the congregations;” but which was to have nothing to do with the private affairs or management of either of the churches. They were left to the management of, and have always been managed by, the two churches and congregations separately and independently of each other. The entry on the records of that year afterwards shows a meeting of “the trustees for the Eastern and Western Koshkonong Congregations for the purpose of organizing in pursuance of section 4 of the by-laws,” adopted at the above joint meeting, a short time before, which by-law provided for the election of a secretary and treasurer of such joint body. Whenever, at any time, trustees were to be elected, or other business to be done, it was done by the Eastern and Western Churches, separately, at their own meeting-houses, and by their own electors and members, as appears by their records, down to 1860; and whenever a pastor was to be chosen for both churches, or other joint business to be done, the records show that it was done by “the trustees and deacons for the Koshkonong and Liberty Prairie Congregations,” etc., and by the “Eastern and Western Koshkonong and Liberty Prairie Congregations,” etc., and by “the trustees of the Eastern and Western Lutheran Congregations of Koshkonong,” etc. There are entries on the record of a certain number of members being received into the Eastern or Western Church, as the case might be, and so many withdrawing from one church, and being admitted to the other. But it is profitless to go over the evidence further than to show that these two churches and congregations have always been separate and distinct, and that the Eastern Church has the advantage, if it be an advantage, of having attempted an organization under the law as a corporation, and has continued to manage its secular affairs under it until the injunction restrained it from so doing, and by its mandate compelled it to surrender its property to the plaintiff, or Western Church. We think we may safely say that the said Eastern Church and Congregation have always acted as a corporation, since that time at least, and has been a corporation de facto since 1854, and is so yet. Whether said body is a corporation by the curative provisions of chapter 91 of the Revised Statutes of 1878 is not material to the question we shall consider.

In respect to the property, real or personal, of these two churches, it must, at least in equity, belong to each, according to the intention to vest the title thereto in the one or the other, and which has been in the possession and use of the two churches respectively and separately. Neither church has the right to the meeting-house or any other property which has so been in the possession, use, and enjoyment of the other; but until it is otherwise adjudicated all such property must continue to be held and enjoyed, for the purposes for which it was procured, by or for either of said churches, and said property must not be disturbed in the peaceable possession of either of said churches, which have been, respectively, in possession thereof up to the time of said injunction. Such we deem the present right of both of said churches, but more especially of the Eastern Church, which has long acted as a corporation de facto, if not de jure.

But the examination and consideration of the above facts and history are mainly pertinent to the important question whether, under the Statutes of 1849, which were in force when the Eastern Church...