St. John the Baptist Greek Catholic Church of Perth Amboy, N. J. v. Gengor

• Decision Date: 18 July 1935
• Citation: 180 A. 379
• Parties: ST. JOHN THE BAPTIST GREEK CATHOLIC CHURCH OF PERTH AMBOY, N. J. v. GENGOR et al.
• Court: New Jersey Court of Chancery

180 A. 379

ST. JOHN THE BAPTIST GREEK CATHOLIC CHURCH OF PERTH AMBOY, N. J.

v. GENGOR et al.

Court of Chancery of New Jersey.

July 18, 1935.

Syllabus by the Court.

1. The constitutionality of an act of the Legislature is to be tested by what may be, and not by what has been, done under it.

2. The Legislature has no power to transfer to one man the property of another, without his consent, either with or without compensation. The same rule applies to private corporations.

3. In this commonwealth no vested right of property can be alienated or impaired except in one of two modes; first, by the consent of the possessor of such right, or, second, by a legislative appropriation to a public use and upon compensation rendered.

4. The Legislature is not vested with the power to arbitrarily provide that any procedure it may choose to declare shall be regarded as "due process of law."

5. Chapter 150, P. L. 1914, p. 263 (2 Cum. Supp. 1924, to Comp. St. pp. 2974-1976, §§ 173—62a to 173—62i) is unconstitutional.

6. The legal title to the property of a religious society incorporated under the General Act of 1875 (3 Comp. St. 1910, p. 4307 et seq., § 1 et seq.) is vested in the trustees of such society who hold it in trust for the benefit of the congregation.

7. The trustees are a mere depositary of the property; the cestuis que trustent have both the jus habendi, or the right to be put in actual possession of the estate, and the jus disponendi, or the right to call upon the trustees to execute conveyances of the legal estate, as the cestuis que trustent direct.

8. The purpose of providing for the incorporation of trustees of religious societies was not to deprive the congregation of the right to control church property but to transmit it in perpetual succession.

9. The trustees of such a society have no rights in equity to control or dispose of the church property, except as directed by the cestuis que trustent.

10. Individual acts of the trustees of such a society, without formal corporate action, although all concur, are illegal and not binding upon the corporation or the congregation.

11. Fraud, in equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.

12. If fraud be established, a court of equity will set aside all transactions founded upon it by whatsoever machinery they may have been effected and notwithstanding any contrivance by which it may have been attempted to protect them.

Bill by St. John the Baptist Greek Catholic Church of Perth Amboy, N. J., against George Gengor and others, for an injunction and an accounting, to which defendants filed a counterclaim. On bill, answer, and counterclaim, and on final hearing.

Decree for defendants.

David T. Wilentz, of Perth Amboy, for complainant.

Stephen F. Somogyi, of Perth Amboy (Adolf L. Engelke, of Jersey City, of counsel), for defendants.

BERRY, Vice Chancellor.

This is but an episode in the age-old controversy touching the worship of the true and living God which has resulted in the shedding of more blood since the beginning of time than any other single cause recorded in history. See Brewer. Historic Note Book, p. 691. All the passions and prejudices, hatreds and jealousies, which marked the Inquisition of Torquemada, the persecutions of John Knox, and the slaughter of both Protestants and Catholics under Elizabeth are here present, although, fortunately, somewhat dormant.

The complainant claims to have been incorporated pursuant to the provisions of chapter 150, P. L. 1914, p. 263 (2 Cum. Supp. 1924, to Comp. St. pp. 2974-2976, §§ 173—62a to 173—62i) which is an act entitled, "A Further Supplement to an act entitled 'An act to incorporate trustees of religious societies,' approved April ninth, one thousand eight hundred and seventy-five," which supplement was approved April 9, 1914. The defendants are twenty-six individuals, alleged to be members of the complainant corporation.

The bill alleges that the complainant was organized pursuant to the said supplement on November 7, 1924, since which time it has been operating and functioning in the manner prescribed by the statute; that the corporate organization at the time of its incorporation consisted of the Right Rev. Basil Takach, appointed by the Pope of Rome as Bishop, and having supervision of Slav (Rusin) Catholics of the Greek Rite coming from Czecho-Slovakia, but formerly coming from Hungary; the Reverend Theophil Zsatkovich, Chancellor of said Diocese, Rev. Alexander Papp, pastor of St. John the Baptist Greek Catholic Church of Perth Amboy, N. J, George Gengor and Alex. Horoschak, lay trustees, and that this organization continued at the time of the filing of the bill of complaint. The bill also alleges that the corporation is seized of valuable real and personal property; that on or about February 7, 1932, the defendants held a meeting and decided to take over and usurp the control of the complainant, irregularly elected officers, and trustees and assumed such control; that on March 5, 1932, pursuant to notice, copy of which is attached to the bill, the defendants held a meeting to consider litigation to void the incorporation of the complainant; that at that meeting some of the officers and trustees irregularly chosen at the February meeting resigned, and the defendants attempted to elect others in their place and stead; that the officers and trustees so chosen by the defendants "announced that they would take over and usurp control of the complainant, its property, its dues and all other moneys belonging to the complainant"; that, since February 7, 1932, the defendants have prevented complainant from taking up collections in the church and from collecting dues; have themselves collected such moneys and dues and appropriated the same to themselves, or to some account unknown to the complainant and not subject to its control, and that they have "endeavored to intimidate the pastor from performing his duties as trustee" of the complainant. An injunction is sought against the defendants to prevent a continuance of the acts complained of, and there is also a prayer for an accounting by the defendants.

To this bill the defendants filed an answer in lieu of plea and an answer and counterclaim. By the answer in lieu of plea the defendants deny the corporate existence of the complainant and deny that it has exercised, or is exercising, or that it is endowed with, any corporate functions.

The answer filed on behalf of the defendants and "such other members of the congregation and corporation, the Greek Catholic Congregation of St. John the Baptist as may choose to come in," denies the corporate existence of the complainant, but admits the filing of a certificate in an attempt at incorporation pursuant to the provisions of chapter 150, P. L. 1914, and it denies that complainant is either a corporation de jure or de facto, and denies that it has ever exercised any corporate franchises or done or performed any acts or business as a body corporate or otherwise. The answer also denies the alleged usurpation of the functions of the complainant and denies all charges that defendants have illegally elected officers and trustees of the complainant, but it alleges that the defendants are the duly elected trustees and officers of the Greek Catholic Congregation of St. John the Baptist, not. the complainant body, but a corporation duly organized and existing under the laws of the state of New Jersey, and that since February 7, 1932, they have acted as such trustees and officers and that they have not at any time assumed or exercised any of the alleged franchises or corporate powers of the complainant. The answer also denies that the complainant is seized or possessed of any property, real or personal, and, by way of counterclaim, the defendants in their own behalf and in behalf of "such other members of the Congregation and corporation, the Greek Catholic Congregation of St. John the Baptist as may choose to come in," allege that on September 13, 1897, the defendant Deliman and six other individuals named, "being a congregation of Christians entitled to protection in the free use of their religion by the constitution of this state, assembled in their place of worship for the purpose of electing trustees and becoming incorporated * * * and * * * when so assembled, did elect" certain trustees and become incorporated pursuant to "An act to incorporate trustees of religious societies," Revision of 1877, p. 958, and the supplements thereto and amendments thereof under the name of "Greek Catholic Congregation Annunciation of St. Mary"; and that the certificate of incorporation was filed in the office of the clerk of Middlesex county on September 14, 1897, as required by the statute; that on May 19 1901, by appropriate corporate action, the name of that corporation was changed to "Greek Catholic Congregation of St. John the Baptist" and that that corporation has continuously functioned from the date of its incorporation until the present day, during which period it has acquired real and personal property of a value in excess of $250,000; that the congregation has a present membership of more than 1,000 persons; that the officers and trustees of said congregation were annually elected, sworn into office, and performed their respective duties from the date of incorporation down to the year 1932, when, after the election on February 7, 1932, the then pastor, Michael E. Lukats, refused to administer the oath of office and refused to induct them into office, without assigning any reason therefor, whereupon they were sworn in by a master in chancery of New Jersey. Countercharges of attempted usurpation of control of the church organization and property by the complainant, the Bishop, his Chancellor, the pastor,...