Evenson v. Ellingson

The findings of fact are certainly fully as favorable to the plaintiffs as the testimony will allow. For the purposes of this appeal it will be assumed that they are supported by the proofs. Hence the general question to be determined is, Do such findings sustain the conclusions of law which the circuit court deduced therefrom? These conclusions are: (1) The attempted incorporation of the congregation in 1847 is void, because the certificate thereof was not acknowledged as required by the act of that year, under which the organization was attempted. Laws of 1847, p. 85. (2) The organization of 1853 is also void, because it attempted to unite in one corporation two distinct churches, congregations, or religious societies. (3) If there was a valid corporation, still, under the circumstances of the case, it would be unjust and inequitable to restrain the Eastern church by injunction from the control of. the church building and the property connected therewith.

1. Whether there was or was not a valid corporation created by the proceedings in 1847 is, we think, a question cf no importance in the case, for the reason that, if such corporation was then created, it ceased to exist in 1853 by the action of the corporators, apparently unanimous, in that year. A corporation may be dissolved by a surrender of the charter, accepted by the government. Strong v. McCagg, *26455 Wis. 624, and cases there cited. In 1853 the corporators abandoned their organization under the act of 1847, and sought to organize, and in form did organize, under R. S. 1849, ch. 47. These two laws were so essentially different that an organization of the same society under both could not exist at the same time. Under the act of 1847 only male persons of full age belonging to the congregation were allowed to participate in the organization of the corporation, while under the act of 1849 all persons of full age belonging thereto could so participate, with the restriction (not contained in the act of 1847) that no person shall vote at any corporate election after the first unless such person shall have been an attendant on public worship in such church, congregation, or society at least six months before the election, and shall have contributed to the support thereof according to its usages and customs. Again, the act of 1S47 conferred upon corporations organized under it the power to sell their real estate, while the law of 1S49 required application for license to sell such property to be first made to the circuit court. Uüder the act of 1847 the corporation was authorized to fix the term of its trustees. The act of 1849 fixes such terras, and classifies the trustees. The act of 1847 does not provide for elections to fill vacancies in the board of trustees. The statute of 1849 does so provide, and prescribes the notice which shall be given of such elections. These and other differences between the two acts show that no corporation could exist under both acts at one and the same time.

From and after 1853 the congregation acted under the organization of that year exclusively. The abandonment of the organization of 1847 is an effectual surrender of corporate' rights and privileges under it; and the enactment of ch. 47, R. S. 1849, under which the last organization was made, is a sufficient acceptance by the state of such surrender. It would be singular indeed, if corporate rights *265could now be predicated of an organization which had been abandoned by the unanimous action of all the corporators for more than thirty years. Hence, without determining whether the want of an acknowledgment to the certificate of organization is fatal to the validity of the incorporation (as the-circuit court held), we conclude that the incorporation or attempted incorporation of the congregation in 1847 is of no significance in the case.

The proceedings of 1847 were first suggested on the trial of the action, and were introduced into the case at that time by an amendment to the complaint and the introduction of testimony' under it.

2. When this case was here oh the former appeal it was held that two distinct churches, congregations, or religious societies could not be organized into one corporation under ch. 47, R. S. 1849, or. any law of this state; and could not become a corporation defacto by user or otherwise. We are still of the same opinion. The question arises, therefore, Do the proofs establish the existence of two such distinct churches, congregations, or religious societies? or, rather, Do the facts found show that the Eastern church and the Western church are such distinct institutions that they' cannot, under the rule established on the former appeal (67 Wis. 634), be included in one corporation? The circuit court resolved these questions in the affirmative.

The findings are to the effect that from 1844 (in which year the two church edifices were erected) there was an organized religious society of the Lutheran Church for each of such churches; and the members of each such church and congregation erected and paid for its own church building and the property used therewith and appurtenant thereto. Ho person could be a member of both such organizations at the same time, or have any voice in the management of the internal affairs of the organization of which he was not a *266member. Each society or congregation held its own burial ground in connection with the church edifice, paid its own expenses, and maintained its own school. All the internal temporal business affairs of each society were managed by trustees nominated by its own members exclusively. These were elected at joint meetings of the two societies from 1853 to 1860, and from I860 to 1885 such trustees were elected by the society itself, without the concurrence of the other societjr. The only joint functions of the trustees of the two churches were the car.e of the parsonage and the land used therewith, the employment of a minister for both churches and fixing his salary, and probably the apportionment of such salary between the two societies. Such joint action was necessary, because the two churches owned the parsonage property jointly, and desired to be served by the same minister. There was no joint meeting of the members of the two societies or congregations, after 1860, until this controversy arose in 1885.

The former appeal herein was from an order refusing to dissolve a preliminary injunction theretofore made in the cause, and it was heard upon the pleadings and certain affidavits. "We held on that appeal that the facts then before us showed the existence of two distinct churches, congregations, or religious societies, which could not lawfully be included in one corporation. A perusal of the opinion by Mr. Justice ORton on that appeal will show that the facts there held to be established by the pleadings and affidavits, and those found by the court upon the trial of the cause, are not so materially different as to justify a finding here that the Eastern and Western churches, congregations, or societies were not distinct organizations, and thus not within the rule there laid down.

It is not material that all of the members of both churches or societies believed that they belonged to one congregation, *267and were incorporated as such. That opinion of the corpo-rators cannot alter the real facts in the case, nor change the rule of law applicable thereto.

We conclude, therefore (as we did upon the former appeal), that the organization of 1853 is not a valid incorporation, and, because it is not, the plaintiffs have no jurisdiction or control over the Eastern church as trustees or otherwise. The object of this action being to establish such jurisdiction, the complaint was properly dismissed on the merits.

3. The conclusions already reached render it unnecessary to pass upon the hypothetical conclusion of law to the effect that if a valid corporation existed which includes both churches, and of which the plaintiffs are the lawful trustees, still it would be unjust and inequitable to restrain the Eastern church from the use and control of its church building and the property connected therewith. We leave that proposition undetermined.

Our judgment herein affects only the temporalities of these two societies or congregations. It does not involve any consideration of the difference in doctrine which has led to the litigation.

The controversy between these two churches is greatly to be deplored. It must necessarily detract from their usefulness, and seriously interfere with the peace of mind of the members thereof and the brotherly feeling which they ought, and no doubt desire, to exercise towards each other. The quarrel should be adjusted on some basis just to both sides, and this litigation stopped. The wi’iter of this opinion, on his own responsibility, ventures the suggestion that each church, congregation,, or society should take steps to become incorporated under the statutes, and, when such in-corporations are formed, that they should agree upon a just division of the parsonage and other property of which they are equitably the joint owners. My present recollection is that one of the affidavits used on the hearing of the motion *268to dissolve tbe preliminary injunction states that the Western church at one time proposed some such course of action to the Eastern church, but the latter church did not accept the proposition. This proposition was in the interests of peace, and should have been accepted. Had it been accepted this litigation, with its heavy expense and the animosities which it necessarily has engendered in the breasts of good men against each other, would have been avoided. It is hoped that some such proposition will be renewed and accepted, and all litigation between those churches speedily terminated.

By the Court.— The judgment of the circuit court is affirmed.