People ex rel. Michajlowski v. Tanaschuk

• Court: Appellate Court of Illinois
• Writing for the Court: HEBEL
• Citation: People ex rel. Michajlowski v. Tanaschuk, 317 Ill.App. 130, 45 N.E.2d 984 (Ill. App. 1942)
• Decision Date: 31 December 1942
• Docket Number: Gen. No. 42467.
• Parties: PEOPLE EX REL. MICHAJLOWSKI v. TANASCHUK.

317 Ill.App. 130

45 N.E.2d 984

PEOPLE EX REL. MICHAJLOWSKI

v.TANASCHUK.

Gen. No. 42467.

Appellate Court of Illinois, First District, Third Division.

Dec. 31, 1942.

Appeal from Circuit Court, Cook County; John Prystalski, Judge.

Quo warranto action by the People of the State of Illinois, on the relation of Philip Michajlowski, against Kirik Tanaschuk, to determine defendant's right to exercise the office of elder in the Holy Trinity's Russian Orthodox Greek Catholic Church of Chicago. From a judgment dismissing the complaint, the plaintiff appeals.

Affirmed.

Bernard W. Vinissky, of Chicago, for appellant.

Oplatka, Pavek & Oplatka, of Berwyn, for appellee.

HEBEL, Justice.

This is a quo warranto action filed by the People of the State of Illinois on the relation of Philip Michajlowski against the defendant Tanaschuk to determine the defendant's right to exercise the office of Elder in the Holy Trinity's Russian Orthodox Greek Catholic Church of Chicago. This cause was heard before the court, who, after hearing the evidence offered by the plaintiff and by the defendant, entered an order dismissing the complaint, and judgment was entered thereon.

The plaintiff's theory is that the defendant is wrongfully assuming the right to act as Elder of the church congregation which is a corporation organized under the laws of the State of Illinois, and plaintiff contends that he is the properly and duly elected Elder of such church congregation.

The defendant, however, presents his theory in this case and contends that the plaintiff, while being elected to the office of Elder by a majority of votes of the congregation, was not confirmed in his office as required by the canon laws, also known as Normal Statutes, of the church and that at a subsequent election the defendant was duly elected and qualified as such Elder.

The statement of facts as they appear in the record indicates that Philip Michajlowski is a resident of Chicago and a member of the Holy Trinity's Russian Orthodox Greek Catholic Cathedral; that the Cathedral is a religious corporation organized under the laws of Illinois and having its principal place of worship and appurtenant place of business in Chicago, Cook County, Illinois, and that the Normal Statutes provide for the election annually of one Elder, to be elected from and by the parishioners in good standing by ballot at their annual meeting, for a term of one year. At the annual meeting of the parish held on January 4, 1942, the plaintiff received 47 votes. The defendant, Kirik Tanaschuk, received 40 votes and J. Tonoff received 3 votes. After the balloting had been completed, the chairman of the meeting, Bishop Leonty, announced that the plaintiff had been elected by a majority of the votes. The Bishop congratulated the plaintiff on his election; also the Bishop called in all the members of the previous committee and told them to be at the church on the next Sunday for the transmission of duties to the new committee and told the newly elected members of the church committee, including the plaintiff, to come next Sunday to be sworn in. When the plaintiff appeared on the following Sunday, he was told that he would not be sworn in, as the Metropolitan (the ruling Archbishop of the church in America) had refused to confirm the election. A meeting of the church was held on February 1, 1942, at which Bishop Leonty presided as chairman and Vladimir Greevsky acted as secretary. It is contended by the defendant that he was elected by acclamation at this meeting.

The trial court delivered an opinion in deciding this action, and from the opinion it would seem that the trial judge was moved in making his decision by the fact that he did not consider that he had any authority to act. He said: “I think that in this election of January 4th, if the person whose authority it was to approve those that were elected did not approve it, that is a matter for the church group, and a Court, a Civil Court cannot interfere in their religious matters. As to the holding of the second meeting, I think the same thing applies. Their rules will govern, and whether their rules have been complied with is a matter for them to determine.”

The plaintiff submits that the trial court was in error in reaching this conclusion; that the religious corporation over which the defendant is assuming to act as Elder is incorporated under the laws of the State of Illinois relating to the incorporation of religious corporations; that its charter was recorded in the office of the Recorder of Deeds of Cook County on December 24, 1924. Plaintiff then calls to our attention Paragraph 9 of the Quo Warranto Act, Chap. 112, Smith-Hurd Ill.Ann.Stat., adopted in 1937, which provides as follows: “A proceeding in quo warranto may be brought in case: (a) Any person shall usurp, intrude into, or unlawfully hold or execute any office, or franchise, or any office in any corporation created by authority of this State.” The plaintiff contends, without the citation of authority, that this proceeding comes within the provision of the statute just cited.

It is also contended that the church corporation has been organized and exists only by virtue of the laws of the State of Illinois and that the office of Elder is an office in that corporation. This provision of the statute just quoted does not, in regard to the question in this case, substantially depart from the language of the statute of 1874 and amendments thereto and which were repealed by the act of 1937. Pars. 1-8, Chap. 112, Smith-Hurd Ill.Stat.Ann. Plaintiff avers that in earlier cases it was held that quo warranto was the only remedy to try title to church offices, and in support of plaintiff's position cites the later case of Shavers v. Thomas, 339 Ill. 622, 171 N.E. 625, 627, in which a bill in chancery was filed by the plaintiffs who claimed to be the sole surviving trustees of the First Colored Baptist Church of Clinton. The bill alleged that the defendants assumed to hold the office of trustees of said church and prayed for an injunction restraining them from performing certain acts. The court said: “It is contended by appellants that they were the sole trustees, and that the appellee trustees were usurpers. The bill was drawn upon the theory that appellants, as trustees, were vested with the legal control and management of the church property instead of the appellee trustees, and it sought to restrain appellees from pretending that they were trustees of the church. The title to the office of trustee is here only collaterally involved. The appellee trustees had been de facto elected to a corporate office, had accepted the same, entered upon the performance of their duties, and were in the possession of the property. An information in the nature of quo warranto will lie against one who intrudes himself into the office of trustee of a church corporation, and his title to the office cannot be decided in a collateral suit, but can only be decided in a direct proceeding.”

To the same effect is Lawson v. Kolbenson, 61 Ill. 405, cited by the plaintiff, where the court said:

“It is the settled law of this country that an information in the nature of a quo warranto will lie against one who intrudes himself into the office of trustee of a church corporation. Ang. & Ames on Corp. 9th Ed. 751.

“The defendants had been de facto elected to a corporate office, had accepted and acted in the same. In such case, the validity of their election could only be tried by a proceeding on information in the nature of quo warranto. Nor can the title to an office, in such case, be decided in a collateral suit; it must be by a direct proceeding.”

And it is suggested that while the authorities just cited specifically refer to the office of trustee they are applicable to the case at bar. Whether the other Elders were considered church trustees or not is beside the point. The statute does not so limit the authority of the court. The rule is applicable to any officer of a church corporation. The plaintiff further suggests that the trial judge placed great stress on the case of Chase v. Cheney, 58 Ill. 509, 11 Am.Rep. 95. In that case the question involved was whether or not the rector of the church was conducting himself in accordance with the tenets of the faith, and we will discuss the theory of that case later on. Plaintiff goes on to suggest that in the case at bar the questions involved are whether the defendant is entitled to exercise the office of Elder or whether the plaintiff is entitled to exercise such office to which he contends he was elected in accordance with the canon laws governing the religious corporation in question. Paragraph 15 of the canon laws sets forth the jurisdiction of the local parochial council, and provides that such local council shall manage parochial affairs subject to the authorities of the diocese. Paragraph 16 provides that the parochial council shall consist of (a) members of the clergy, (b) the church elder, (c) and the other representatives of the parish including the treasurer, secretary, and curators (not exceeding twelve) to be elected by the parish meeting for one year. This paragraph of the canon laws, it is contended, clearly makes a distinction between the clerical and lay members of the council. Plaintiff's discussion that is before us further goes on to quote paragraph 18 of the canon laws, in which the duties of the parish council are set forth, and states that these duties principally concern themselves with the collection and disbursement of the funds needed for the operation of the parish institutions including cemetery, schools and other institutions for instructions or charity, and that this paragraph specifically provides for recourse to the “law courts” in the following language; that the parochial council is entrusted with, among other things: “* * * intercession before civil institutions, hospitals, prisons, law courts, factories and schools for the need of...