In re St. Louis Institute of Christian Science

• Decision Date: 08 November 1887
• Citation: 27 Mo.App. 633
• Parties: IN RE THE ST. LOUIS INSTITUTE OF CHRISTIAN SCIENCE.
• Court: Missouri Court of Appeals

27 Mo.App. 633

IN RE THE ST. LOUIS INSTITUTE OF CHRISTIAN SCIENCE.

Court of Appeals of Missouri, St. Louis.

November 8, 1887

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Affirmed.

PATTISON & CRANE, for the appellants: The proposed corporation is not a religious corporation within the purview of the constitution. Baptist Church v. Witherell, 3 Paige 301; Weld v. May, 9 Cush. 188; Ex parte Andrews, 18 Cal. 684. The corporation is not one for pecuniary profit. Sheren v. Mendenhall, 23 Minn. 92; Gooch v. Association, 109 Mass. 567; McDonald v Hospital, 120 Mass. 432; American Asylum v Bank, 10 Am. Dec. 112. The allowance of a fee to the amicus curiæ , to be taxed as costs, was unwarranted by law. Rev. Stat., sect. 1010; Steele v Wear, 54 Mo. 531; Shed v. Railroad, 67 Mo. 687; In re Murphy, 22 Mo.App. 476.

CHARLES CLAFLIN ALLEN, amicus curiæ : The proposed incorporation is sui generis. It embodies certain religious features blended with a vocation for " " pecuniary profit." The allegations as to its purpose are too vague. Rev. Stat., sect. 970. It can not be incorporated as a religious organization. Const. of Mo., art. 2, sect. 8; Catholic Church v. Tobbein, 82 Mo. 418. The purposes disclosed include the prosecution of a business for " pecuniary profit." As such it can not be incorporated. Rev. Stat., chap. 21, art. 10, sects. 970, 974, 978; Boone on Corporations, sect. 339; The People v. Nelson, 46 N.Y. 477; Sheren v. Mendenhall, 23 Minn. 92. The purposes disclosed indicate none of the characteristics requisite to constitute a benevolent, charitable, or literary corporation within the meaning of article 10. As indicating how jealously the legislature guards the benevolent feature of article 10, see amendment to sect. 978, Acts of 1883, p. 53; amendment to sect. 982, Acts of 1887, p. 115; see, also, original sect. 982, Rev. Stat. 1879. Expressio unius, exclusio alterius. As to what constitutes charitable or benevolent corporations, see 1 Blackstone's Com., p. 471, chap. 18; 1 Kyd. on Corp. 27; 2 Kent's Com. 274; Field on Corp., sect. 2; Potter on Corp., sect. 19; Angell and Ames on Corp., sect. 39; Morawetz on Corp., sect. 4; 43 Eliz. chap. 4; 7 Stat. at Large 43; Maine Baptist Missionary Convention v. Portland, 65 Me. 92; The People v. Nelson, 46 N.Y. 477; S. C., special term S.Ct. N. Y.; 3 Lansing 394; 10 Abb. Pr. (N. S.) 200; American Asylum v. Phoenix Bank, 4 Conn. 172; Regents v. Williams, 9 Gill & Johnson [Md.] 365; Gooch v. Association, 109 Mass. 558; McDonald v. Hospital, 120 Mass. 432; Sheren v. Mendenhall, 23 Minn. 92; Queen v. Pocock, 8 Ad. and Ellis (N. S.) 729. The amicus curiæ is an officer provided for by statute (sect. 971, and Acts 1885, p. 98); his status is analogous to that of commissioner in an assignment, or to take depositions, and he is entitled to reasonable compensation.

OPINION

LEWIS P. J.

Application was made to the circuit court by Janet T. Colman, Jonas M. Hampson, and Erwin L. Colman for a pro-forma decree of incorporation, under article 10 of chapter 21, of the Revised Statutes. The intended corporation was to be named, " The St. Louis Institute of Christian Science," and a copy of its constitution accompanying the petition contained the following provisions:

" Article III. The object of said institute shall be:

1. To teach a higher sense of the moral and spiritual qualifications requisite for harmony and health, thereby elevating mankind mentally, morally, and physically.

2. To establish and maintain a school or institute for instruction in Christian science or metaphysics, and its application to heal the sick and promote longevity, as taught by the Massachusetts Metaphysical College, Boston, Mass.

3. To establish and maintain a sanitarium for the treatment and healing of disease, as taught at said college.

Article IV. The tuition fees charged to pupils in the school, and the amounts paid by patients in the sanitarium, shall be devoted, first, to the payment of the necessary and proper expenses of the said school and sanitarium, including salaries of the professors and teachers in the school, and fees and wages to the professional and other attendants in the sanitarium; second, such receipts as are not needed for the above purposes shall be devoted to the furtherance of the principles taught in the said school, in such way as to the board of directors shall seem best."

Article V. provides that the board of directors shall consist of a president, secretary, and treasurer, and such other members as shall be provided in the by-laws, not to exceed thirteen in number. Article VI. provides that the three petitioners, in the order named, shall constitute, respectively, the president, secretary, and treasurer of the Association for the first year. Article VII. provides that the corporation may make by-laws, and may at any time determine by its by-laws the conditions of membership therein.

The court appointed Charles Claflin Allen, Esq., to be amicus curiae, to examine the amended petition and to show cause, if any there be, why the prayer of the petitioners should not be granted. The amicus curiæ afterwards reported his examination, and recommended that the application be denied, because: (1) The decree asked for would be an attempt to create a religious corporation, in violation of section 8, article 2, of the state constitution; and (2) it would erect a business corporation " for pecuniary profit," contrary to section 978 and other sections of the Revised Statutes. Exceptions were filed to the report and recommendation, but the court sustained the views of the amicus curiæ and denied the application.

The question, What is a religious corporation? within the meaning of our constitution, is of rather difficult solution, and one upon which we have no direct judicial light. The constitutional provision in question declares: " That no religious corporation can be established in this state, except such as may be created under a general law for the purpose only of holding the title to such real estate as may be prescribed by law for church edifices, parsonages, and cemeteries." It appears to be implied in this language that a corporation created for the purpose of holding the title to a church edifice, parsonage, or cemetery, would be a religious corporation, and within the exceptions expressed in a prohibition of the generic class to which it belongs. A church edifice is understood to be a building in which people assemble for the worship of God, and for the administration of such offices and services as pertain to that worship. A parsonage is intended for the accommodation of the leader and teacher in such worship, and a cemetery in connection with a church is designed, primarily, for the burial of its worshipers and members. Thus we see that a religious corporation within the constitutional meaning is not necessarily a church, in the common acceptation of the term, or even a " " religious society," as defined by judicial writers. In Baptist Church v. Witherell (3 Paige 301), a religious society is said to be " a voluntary association of individuals and families united for the purpose of having a common place of worship, and to provide a proper teacher to instruct them in religious doctrines and duties, and to administer the ordinances of baptism," etc, But it is impossible to consider our constitution as requiring that all these elements and conditions shall enter into the composition of a " religious corporation," in order to bring it within the constitutional inhibition. It plainly intends to forbid the creation of any corporation (other than those which are expressly excepted) whose purposes are directly and manifestly ancillary to divine worship or religious teaching. This does not mean that a corporation, created for educational or benevolent purposes, may not hold prayers or impart religious instruction to its pupils and votaries, without a forfeiture of its charter, or a violation of the law. A distinction must be observed, between what the members or servants of a corporation may lawfully do, as not being forbidden by any moral or civil precept, and such things as inhere in the declared purposes and objects for which the corporation was created. " The leading purpose of an association is the purpose which determines its character." Sheren v. Mendenhall, 23 Minn. 93. The constitutional provision under consideration does not, in any degree, abridge religious freedom; but, on the contrary, secures its universality by withholding special powers and privileges from any one denomination of religionists, or its adjuncts and coadjutors.

At the hearing of the exceptions, Mrs. Colman, the intended president of the proposed corporation, testified as a witness to the purposes and objects of the association, and it was agreed that Erwin L. Colman, her husband, was to be the treasurer, and that his testimony, if sworn, would be to the same effect as that of his wife. We append some statements of the witness, which may fairly be considered, in connection with the constitution of the association, as elucidating the character of the proposed corporation.

After the witness had stated that a...