Russie v. Brazzell

• Decision Date: 30 March 1895
• Citation: 30 S.W. 526,128 Mo. 93
• Parties: Russie et al. v. Brazzell et al., Plaintiffs in Error
• Court: Missouri Supreme Court

30 S.W. 526

128 Mo. 93

Russie et al. v. Brazzell et al., Plaintiffs in Error

Supreme Court of Missouri, First Division

March 30, 1895

Error to Harrison Circuit Court.

Affirmed.

Wanamaker & Barlow for plaintiffs in error.

(1) The church had a constitution in 1841; it remained identically the same until the alteration was effected in 1889. (2) The constitution of 1841 was recognized and treated by the church as its organic law for nearly fifty years. See Bear v Heasley, 98 Mich. 279; Schlichter v. Keiter, 156 Pa. St. 119; Philomath College v. Wyatt, 31 P 206. (3) Article 4 of the constitution provides that no alteration shall be made, "unless by two thirds vote of the whole society." It is altered and not in the mode provided. (4) The vote in favor of the amended constitution and revised confession of faith should have been "two thirds of the whole society," and not merely two thirds of those voting. Bear v. Heasley, 98 Mich. 279; Philomath College v. Wyatt, 31 P. 206 (Ore.) ; State, etc., v. Sutterfield, 54 Mo. 391; State etc., v. Brassfield, 67 Mo. 331; State, etc., v. Winkelmier, 35 Mo. 103; Webb v. Lafayette Co., 67 Mo. 353; Ranny v. Bader, 67 Mo. 476; State, etc., v. Walker, 85 Mo. 41. (5) The confession of faith has been materially changed. (6) The supreme court will take judicial notice of the difference between the religious doctrines embodied in the confession of faith of the church of the United Brethren and that of the new church. Humphrey v. Burnside, 4 Bush (Ky.), 215; Young v. Ransom, 31 Barb. 49. (7) Decisions of ecclesiastical tribunals are not conclusive on civil courts, where property rights are involved. The constitution and confession of faith are as fully a part of every trust deed as if therein written. Prickett v. Wells, 117 Mo. 502; Watson v. Garvin, 54 Mo. 353; Smith v. Nelson, 18 Yer. 511; Smith v. Swormstedt, 5 McLean, 388; Robertson v. Bullions, 9 Barb. 134; Natal v. Gladstone, 3 L. R. 1; Kniskern v. Lutheran Church, 1 Sandf. Ch. 439; Bear v. Heasley, 98 Mich. 279; Hochreiter's Appeal, 93 Pa. St. 479; Rottman v. Bartling, 22 Neb. 373; State v. Swift, 69 Ind. 505. The relations between the members of this association is one of contract, and the confession of faith and constitution constitute the terms of agreement, which is binding upon all. Bear v. Heasley, 98 Mich. 279; Hyde v. Woods, 2 Sawy. 665; White v. Brownell, 2 Daly, 329; Ebbinghousen v. Worth Club, 4 Abb. (N. C.) 300; Baptist Church, 25 Kan. 177; State v. Williams, 75 N.C. 134; Innes v. Wylie, 1 C. and K. 262; Orickett v. Schaefer, 11 Phila. 166; Brine v. Board, 2 Am. Law Reg. 268. The edicts and declarations of the conference (1889) contravened the organic laws of the society and are ultra vires. Bear v. Heasley, 57 N.W. 270; Philomath College v. Wyatt, 31 P. 206.

A. F. Woodruff, D. J. Heaston and L. B. Gunckel for defendants in error.

(1) Where a case is heard by the trial court, sitting as a jury, and no instructions are asked or given, if there is any theory of the law, based on the pleadings and evidence, upon which the finding of the lower court can be sustained, the appellate court will adopt that theory. Garrison v. Lyle, 38 Mo.App. 559; Swayze v. Bride, 34 Mo.App. 414; McEvoy v. Lane, 9 Mo. 48; Handlan v. McManus, 100 Mo. 124; Murdock v. Dalby, 13 Mo.App. 42; Zervis v. Unnerstall, 29 Mo.App. 474; Mead v. Spalding, 94 Mo. 43; Schnare v. Austin, 106 Mo. 610; Gruen v. Bamberger, 25 Mo.App. 89; Baird v. George, 30 Mo.App. 505; St. Louis v. Lanigan, 97 Mo. 175; Magee v. Burch, 108 Mo. 336; Brewing Co. v. Neiderweiser, 28 Mo.App. 233. (2) A constitution is a written instrument agreed upon by the people; and is not operative until it is adopted by the people, not even when adopted by the convention authorized by law to form a constitution and specially called and elected for that purpose. Story on Constitution, 338; Jameson on Constitutional Convention, 494, 69, 71; Cooley on Constitutional Limitations, 3, 32; People v. Railroad, 24 N.Y. 486; Parker v. Smith, 3 Minn. 240; Wells v. Bain, 75 Pa. St. 40. (3) A constitution is not to be construed technically and strictly, like the statutes, nor against the plain and obvious dictates of reason, but liberally, so as to carry out its avowed objects and promote the ends of justice. Endlich on Statutory Interpretations, 711; Commonwealth v. Maxwell, 27 Pa. St. 460; Mungeon v. People, 55 N.Y. 613; Smith on Constitution and Statutory Construction, 695; Taylor v. Taylor, 10 Minn. 107; Cass v. Dillon, 2 Ohio St. 608; Story on Constitution, 141, 145, 156, 161; Cooley on Constitutional Limitations [1 Ed.], 58, 59, 61; Story's Commentaries on Constitutions (Abridged), sec. 194. (4) The general rule of law is that when a question is to be decided by the votes of a majority of the voters of a body or a territory this does not require that a majority of all the persons entitled to vote shall actually vote affirmatively, but only that the result shall be decided by a majority of the votes cast. State v. Binder, 38 Mo. 450; State v. Penick, 37 Mo. 270; McCreary on Elections, sec. 173; Cass County v. Johnston, 95 U.S. 369; St. Joseph v. Rogers, 16 Wall. 663; County v. Johnson, 5 Otto, 369; Wardens of Christ Church v. Pope, 8 Gray, 140, 143; Walker v. Oswald, 68 Md. 146; Green v. Weller, 32 Miss. 850; Cons. Prob. Amdt. Cases, 24 Kan. 700; Miller v. English, 21 N. J. L. 317; Church v. Church, 2 Abb. Pr. (N. S.) 234; People v. Gaines, 47 Ill. 246; People v. Warfield, 20 Ill. 163; Railroad v. Davidson, 1 Sneed, 692. (5) The rule has become elementary that, when a civil right depends upon some matter pertaining to ecclesiastical affairs, the civil tribunal tries the civil right and nothing more, taking the ecclesiastical decisions out of which the civil right has arisen as it finds them, and accepts such decisions as matters adjudicated by another legally constituted jurisdiction. Quarterly Meeting, etc., v. Quarterly Meeting, 89 Ind. 136; Watson v. Jones, supra; Dwenger v. Geary, 113 Ind. 106; Connitt v. Church, 54 N.Y. 551; Gaff v. Greer, 88 Ind. 122; Harrison v. Hoyle, 24 Ohio St. 254; Lamb v. Cain, 129 Ind. 512; Philomath College v. Wyatt, 31 P. 206; Prickett v. Wells, 117 Mo. 502; Landis v. Campbell, 79 Mo. 433; Auracher v. Yerger, 58 N.W. (Iowa), 893; 1 High on Injunctions, secs. 310, 314. (6) When there is a secession on the part of members of a religious body or organization, the seceders thereby forfeit all right to any part of the church property. Wiswell v. Church, 14 Ohio St. 32; Church v. Wood, 5 Ohio St. 283; McGinnis v. Watson, 41 Pa. St. 9; Den. v. Bolton, 12 N. J. L. 205; Church v. Theological Seminary, 4 N.J.Eq. 77. (7) It was entirely proper and legitimate for the general conference to appoint the commission to arrange the details, within certain limits, of the request for vote upon confession of faith and constitution. Such matters are frequently done by legislative bodies, and approved by the courts. Schweiker v. Husser, 146 Ill. 425; Territory v. Scott, 20 N.W. (Dak.), 401; State ex rel. v. Railroad, 37 N.W. (Minn.), 782; Granger Cases, 94 U.S. 113-187; People v. Harper, 91 Ill. 357; Railroad v. Smith, 70 Ga. 694; State ex rel. v. Medical Ex., 34 Minn. 387. (8) Civil courts in this country have no ecclesiastical jurisdiction. They can not revise or question ordinary acts of church discipline, and can only interfere in church controversies, when civil rights or the rights of property are involved. Donovan v. Chatard, 97 Ind. 421; White Lick Quaker Case, 89 Ind. 136; Gaff v. Greer, 88 Ind. 122; Watson v. Jones, 13 Wall. 679, 727; Auracher v. Yerger, 58 N.W. 893; Schweiker v. Husser, 34 N.E. 1022; Lamb v. Cain, 129 Ind. 512, 513; Dwenger v. Geary, 113 Ind. 106; Earle v. Wilson, 8 Cush. 456; Connitt v. Reformed Church, 54 N.Y. 551; Church v. Halverson, 42 Minn. 503; Landis v. Campbell, 79 Mo. 433; Church v. Church, 23 Iowa 567; Church v. Seibert, 3 Pa. St. 291; State ex rel. v. Farris, 45 Mo. 184; Stack v. O'Hara, 90 Pa. St. 477; Schlichter v. Keiter, 156 Pa. St. 119, 144. (9) A legislative body can not, at one session, enact laws which will limit or abridge the legislative power vested in this body at any subsequent session, or make an act irrepealable, except it assume the form and substance of a contract; and to call it a constitution would not change this well known principle. Bloomer v. Stolley, 5 McLean, 158; Plank Road v. Husted, 30 Ohio St. 581; Harrison v. Hoyle, 24 Ohio St. 301; State v. Swift, 69 Ind. 520; Cooley on Constitutional Limitation, 4, 149; Mungeon v. People, 55 N.Y. 613; Mott v. Railroad, 30 Pa. St. 9.

OPINION

Macfarlane, J.

This suit is ejectment to recover possession of certain lots at Eagleville, Harrison county. The title to the lots is vested in trustees for the use of the "United Brethren in Christ," by deed dated February 10, 1873. The property was used by the congregation of said church as a parsonage. The controversy grows out of a division in the church and said congregation, which occurred in 1889. The plaintiffs are the trustees of the branch known as liberals, and defendants are trustees of the branch known as radicals. Each claims the property as trustees of the church.

"The United Brethren in Christ" is a voluntary unincorporated religious denomination. At its first organization, something over a century ago, it had neither a constitution nor a confession of faith. It looked to the Bible alone for doctrine and government. In 1815, the general conference which was the highest legislative and judicial body of the church, adopted a confession of faith which contained the fundamental doctrines of the church, and which was recognized and adhered to until 1889. The general conference in 1841 formulated and adopted a constitution as the organic law of the...