Moustakis v. Hellenic Orthodox Soc. of Peabody

• Decision Date: 04 January 1928
• Citation: 261 Mass. 462,159 N.E. 453
• Parties: MOUSTAKIS et al. v. HELLENIC ORTHODOX SOC. OF PEABODY AND SALEM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 462

159 N.E. 453

MOUSTAKIS et al.

v.HELLENIC ORTHODOX SOC. OF PEABODY AND SALEM et al.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 4, 1928.

Report from Supreme Judicial Court, Essex County.

Petition for mandamus by Mick Moustakis and others against the Hellenic Orthodox Society of Peabody and Salem and others. The case was heard on the pleadings and an auditor's report by a single justice, who found the facts as stated in the auditor's report, and at the request of all parties the case is reported for the determination of the full court on the pleadings and facts thus found. Petition ordered dismissed, unless amended.J. A. Liacos, of Peabody, for plaintiffs.

F. L. Simpson, of Boston, and George C. Vournas, of Washington, D. C., for defendants.

RUGG, C. J.

This is a petition for a writ of mandamus. It was referred to an auditor, who filed a report dealing with all the issues raised. It was heard upon the pleadings and the auditor's report by a single justice, who found the facts as stated in the auditor's report. At the request of all parties the case then was reported for the determination of the full court upon the pleadings and the facts thus found.

This form of report presents for consideration only the question of law whether the writ ought to issue. It does not involve any question of discretion. Boucher v. Members of Salem Rebuilding Commission, 225 Mass. 18, 113 N. E. 575.

The defendant Hellenic Orthodox Society of Peabody and Salem is a corporation established under the laws of this commonwealth. A charter was issued to it in 1906. It will hereafter be called the corporation. The purpose for which it was constituted was to maintain public worship in accordance with the doctrines of the Hellenic Orthodox Church, whose correct name is ‘Eastern Orthodox Church,’ but which is known also as ‘Greek Orthodox Church.’ These three names designate indifferently the same church. For convenience we shall call it the Greek Church. This corporation has for many years maintained the St. Vasilios Church in Peabody. The respondent Kalinicos is acting as the officiating priest of that church. The respondent Komvopoulos purports to act as an archbishop of the Greek Church in America, including the St. Vasilios Church. The other individual respondents are members of the standing committee of the corporation.

The petitioners, prior to the filing of the petition, were all members in good standing both of the defendant corporation and of the Church of St. Vasilios in Peabody.

The corporations is composed of about 350 members, who alone are entitled to vote for the election of officers. The congregation worshiping in the church numbers more than 3,000. Although they enjoy all the religious benefits of the church, they have no right to vote in the corporation.

The present controversy arises out of disagreement as to the supreme ecclesiastical authority in the Greek Church. The petitioners assert that such authority is reposed in the Ecumenical Patriarchate of Constantinople, a body residing in Constantinople composed of 12 metropolitans or bishops under the presidency of the Ecumenical Patriarch, and that the representative of that authority in this country is Archbishop Alexander of New York; while the respondents assert that such authority is reposed in the Holy Synod of Greece, a body residing in Athens composed of numerous bishops and metropolitans of the Greek Church, and that the respondent Komvopoulos is archbishop having charge of St. Vasilios Church in Peabody. It is to be noted that Archbishop Alexander is not a party to this proceeding.

Although there are numerous prayers in the petition, only three questions have been argued in behalf of the petitioners:

I. Whether the officers of the respondent corporation shall be compelled to recognize Archbishop Alexander of New York as the archbishop of the St. Vasilios Church.

II. Whether the respondent Komvopoulos shall be restrained from usurping the powers and privileges of bishop of said church, alleged to be vested in Archbishop Alexander of New York.

III. Whether certain members expelled from the corporation shall be reinstated in membership.

It is not necessary to consider other questions, possibly open on the record, which the petitioners have not argued.

[1] I. The question as to the archbishop of the Greek Church who has jurisdiction over the St. Vasilios Church in Peabody is on this record purely ecclesiastical in nature; it is dissociated with any property interest, trust relation, or personal, contractual, or tortious right of the petitioners. There are no allegations in the petition that the church and the real estate connected therewith are held on any trusts which have been violated by the respondents. There are no averments of interference with property rights of the petitioners. There are no charges of the perversion of gifts from the purposes declared by the donors to alien uses. It is not the province of civil courts to enter the domain of religious denomination for the purpose of deciding controversies touching matters exclusively ecclesiastical.

Courts do not inquire into questions exclusively ecclesiastical for the reason that religious freedom is the constitutional right of all citizens under our government; and for the further reason that, if the courts should deal with litigation of that nature, the whole subject of doctrinal theology, the customs, canonical laws both written and unwritten, and the fundamental organization of the various religious denominations would need to be examined with care for the purpose of reaching authoritative conclusions. Such a course by the courts would in the end deprive the denominations themselves of interpretations of their own body of church polity, and would establish the courts as the final arbiter in every religious controversy. The evils attendant upon such a practice have been thought far to outweigh the incidental advantage that might flow from its adoption.

The principle is settled in this commonwealth and it prevails generally. It cannot be overturned because a particular case may present a strong appeal. Fitzgerald v. Robinson, 112 Mass. 371, 379, 380;Grosvenor v. United Society of Believers, 118 Mass. 78;Carter v. Papineau, 222 Mass. 464, 111 N. E. 358, L. R. A. 1916D, 371, Ann. Cas. 1918C, 620;Watson v. Jones, 13 Wall. 679, 722 to 729, 733, 20 L. Ed. 666;Bonacum v. Harrington, 65 Neb. 831, 836, 91 N. W. 886;Chase v. Cheney, 58 Ill. 509, 535,11 Am. Rep. 95;Hundley v. Collins, 131 Ala. 234, 243, 32 So. 575,90 Am. St. Rep. 33;Shannon v. Frost, 3 B. Mon. (Ky.) 253, 258. In Proprietors of St. Luke's Church v. Slack, 7 Cush. 226,Canadian Religious Ass'n v. Parmenter, 180 Mass. 415, 62 N. E. 740,Attorney General v. Armstrong, 231 Mass. 196, 120 N. E. 678,Eustace v. Dickey, 240 Mass. 55, 132 N. E. 852,Dittemore v. Dickey, 249 Mass. 95, 144 N. E. 57, and similar cases where religious controversies have been discussed, property rights, the interpretation of trusts, or some definite legal obligations have been involved. The case of Kedrovsky v. Rojdesvensky, 214 App. Div. 483, 212 N. Y. S. 273, affirmed without opinion in 242 N. Y. 547, 152 N. E. 421, relied upon by the petitioners, took the form of an action for the enforcement of the trust upon the real estate occupied by the defendants and hence is distinguishable from the case at bar.

[2] II. The same principle governs the question sought to be raised as to the canonical status of the respondent Komvopoulos. Whet...