The State ex inf. Otto v. United Hebrew Congregation of St. Louis

• Decision Date: 18 July 1925
• Docket Number: 26159
• Citation: 274 S.W. 413,309 Mo. 587
• Parties: THE STATE ex inf. R. W. OTTO, Attorney-General, ex rel. I. R. GOLDBERG et al., v. UNITED HEBREW CONGREGATION OF ST. LOUIS
• Court: Missouri Supreme Court

274 S.W. 413

309 Mo. 587

THE STATE ex inf. R. W. OTTO, Attorney-General, ex rel. I. R. GOLDBERG et al., v. UNITED HEBREW CONGREGATION OF ST. LOUIS

No. 26159

Supreme Court of Missouri

July 18, 1925

Dismissed.

Robert W. Otto, Attorney-General; Abbott, Fauntleroy Cullen & Edwards for relator.

(1) The pro-forma decree of the Circuit Court incorporating the United Hebrew Congregation granted powers to said corporation in excess of powers which under our Constitution and laws can be granted to a religious corporation and the act incorporating it is null and void. (2) The respondent is exercising powers, privileges and franchises in excess of those granted to it by its law and charter. (3) The said United Hebrew Congregation has acquired and it is now holding real estate in excess of the quantity of real estate which a religious corporation can hold under the laws of this State and is holding title to real estate in violation of the Constitution. (4) Said United Hebrew Congregation is exercising all the powers, privileges and franchises granted to a corporation organized for pecuniary profit. (5) The powers of an incorporated religious society are to be determined by its articles and the governing statutes. Clark v. Brown, 108 S.W. (Tex. Civ. App.) 421. (6) Where a charter enumerates the purposes for which the corporation may acquire and hold property, it impliedly excludes all other purposes. Case v. Kelly, 133 U.S 21, 33 L.Ed. 513; Michigan Bank v. Niles, 1 Dougl. (Mich.), 401, 41 Am. Dec. 575; Prairie Slough Fishing Club v. Kessler, 252 Mo. 424. (7) Any corporation, the charter powers of which are to be used in aid of the propagation and practice of a religious belief, is a "religious" corporation. Proctor v. Board of Trustees, 225 Mo. 51; In re St. Louis Institute of Christian Science, 27 Mo.App. 633; Cook County v. Chicago Industrial School, 125 Ill. 540, 1 L. R. A. 437, 8 Am. St. 386; Section 8, Article XI, Missouri Constitution.

Taylor, Mayer & Shifrin and Chas G. Revelle for respondent.

(1) Respondent was incorporated in 1868 under the Constitution of 1865, and conformable statutes, as a church, as distinguished from a religious corporation under the Constitution of 1875. Article I, sec. 12, Constitution of 1865; Article II, sec. 8, Constitution of 1875; Secs. 5 to 6, Chap. 77, p. 69, Laws 1865-66; Coal Co. v. Bingham, 97 Mo. 196; Klix v. Parish, 137 Mo.App. 367; In re Christian Science, 27 Mo.App. 637; Proctor v. Board of Trustees, 225 Mo. 51. (2) The constitution and by-laws, filed with its petition for incorporation, were the constitution and by-laws of the church and within the powers and privileges of the church. Cases cited above. (3) The incorporation of respondent in no manner changed its original form of church government, nor took from it the power to transact its secular business according to its methods and customs. The church organization for all religious purposes continued after its incorporation. Catholic Church v. Tobbein, 82 Mo. 425; Klix v. Parish, 137 Mo.App. 367, 369; Second Baptist Church v. Beecham, 180 S.W. 1067; Lilly v. Tobbein, 103 Mo. 477. (4) Respondent is using the particular real estate, of which relator complains, solely and exclusively for the purposes authorized by both the former and present Constitution. Article I, sec. 12, Constitution of 1865; Article II, sec. 8, Constitution of 1875. (5) The constitution and by-laws of the respondent, even when measured by the present Constitution and statutes, are within the lawful powers and franchises of respondent. Klix v. Parish, 137 Mo.App. 358, 364; State v. Board of Trustees, 175 Mo. 52; In re Christian Science, 27 Mo.App. 633; Article 11, chap. 90, R. S. 1919. (6) This action was not instituted in good faith for public purposes, but for the special benefit and private uses of certain individuals who are seeking to coerce respondent to sell to them its property at their own price.

Ragland, J. All concur, except Woodson, J., absent.

OPINION

RAGLAND

On February 17, 1925, there was filed in the office of the clerk of this court an information in the nature of a quo warranto, the first paragraph of which is as follows:

"Now comes Robert W. Otto, Attorney-General of and for the State of Missouri, and prosecutes this action for said State at the relation of and upon the information of I. R. Goldberg and Lena Goldberg, G. M. Griffin, John R. Harkins, J. Strassney, Alfred F. Steiner, E. A. O'Donnell, John J. Cahalin and Mary Cahalin, who are citizens of the State of Missouri and who desire to have proceedings by information in the nature of a quo warranto instituted and prosecuted against the said United Hebrew Congregation of St. Louis, and relator states that the respondent, United Hebrew Congregation of St. Louis, was created and organized as an incorporated religious society on the 31st day of October, 1868, under and in accordance with an act of the General Assembly of the State of Missouri, entitled 'An Act Concerning Corporations' approved March 18, 1866, and that by virtue of said certificate of incorporation the said United Hebrew Congregation of St. Louis is entitled to all the privileges and capable of exercising all the powers conferred or authorized to be conferred by said act and amendments thereto, by the Constitution of this State, upon an incorporated religious society, and relator says that said corporation is now exercising the franchises, rights and privileges conferred by the Constitution and by said act of the Legislature of the State of Missouri, and other acts amendatory and supplemental thereto, and has its chief office or place of business in the city of St. Louis, in said State, and that it exercises many other franchises, rights and privileges forbidden by the Constitution and laws of the said State, as more fully hereinafter set forth."

Following the paragraph just quoted the articles of association of the "United Hebrew Congregation of St. Louis," together with the pro-forma decree of the Circuit Court of St. Louis County creating them a body politic and corporate, are set out. Next follow averments of the particulars in which it is claimed that the respondent has unlawfully assumed and usurped franchises and privileges not granted to it. The one upon which the greatest stress is placed is this: Respondent, in 1921, purchased two lots on Delmar Boulevard, in the city of St. Louis, as a site for a synagogue or house of worship, and, notwithstanding that the lots were admirably fitted for such purpose, it thereafter purchased other lots in Ellenwood Subdivision, in the city of St. Louis, and is about to construct thereon a large building designed to be used for divers educational and social purposes, which are enumerated, of a purely secular character. With respect to the acquisition of the lots in Ellenwood Subdivision it is charged:

"That it was not necessary or essential that the respondent acquire title to the lots in Ellenwood upon which said great building is now being erected, for a church edifice or a synagogue that at the time the said relator obtained title to said Ellenwood parcel of ground, it owned and still owns the parcel of ground heretofore described as located on Delmar Avenue, and such parcel of ground on Delmar Avenue was purchased for a site which the corporation is holding for a synagogue or church edifice, and that the acquiring of any other property and the erecting of a church edifice or synagogue on any other property is in violation of the charter rights granted to the respondents by the State, and also in violation of the Constitution and laws...