The Clergyman's Hand-book of Law Part 5

CHAPTER XIV. MEETINGS

*176.* _Business, Notice, Meeting._-Where, in the transaction of the local business of a religious society, whether incorporated or not, meetings of the members shall become necessary, in order to make such meetings legal due notice thereof should be given to every member. The notice should specify the exact time and place where the meeting will be held, and no change can be made except at such time and place. Unless some other place is specified, the parish church is the proper place for holding meetings.

If the church should be locked and the key can not be found, a meeting should be held at the door or at the nearest practical place to the church where all the members may a.s.semble, and then by a majority vote they may adjourn to any convenient near place accessible to all the members.(318)

*177.* _Acts, Void, Lawful, Clerk._-The acts of a majority of the members of a corporation, unless done according to law and in conformity with the charter and by-laws of the corporation, are absolutely null and void.(319) The only lawful manner by which a congregation can express itself, is by a meeting regularly called and held upon due notice.(320) The notice of a meeting should be authorized by the trustees or other authority of the church, and given to all the members. The clerk of the board of trustees, unless authorized to do so, has no authority to sign the name of the members of the board to a notice, and a meeting called in that way is illegal.(321)

*178.* _Special Meeting, Notice._-When a meeting is special, the notice must state for what purpose the meeting is called. If it fails to do so it is void, and unless all the members are present and consent to the holding of the meeting, all business transacted is illegal and void.(322) Notice of a special meeting that states one specific purpose for which it is called, and then states "to transact any other business that may legally come before the meeting," is not good for any purpose except the one specified.(323)

*179.* _Meeting, Consent._-A valid meeting can not be held by a corporation, unless notice has been given in conformity with the laws and rules and regulations of the corporation or the consent of every person who is ent.i.tled to be present at the holding of such meeting. In the latter case the consent should be in writing and signed by all the members.(324) However, a person who attends a meeting and takes part in it without objection, is estopped from raising the question of notice.(325)

*180.* _Notice, Princ.i.p.al Service, Custom._-When a rule of a church required notice of a meeting to be given at the princ.i.p.al service, a notice given at an earlier service only, was void.(326) But where the ordinances of a church specified that the election of officers should be at least six days before the end of their term, and it became the custom of the church to hold the election on a movable holiday which sometimes was less than six days, the election was held valid.(327)

*181.* _Adjournment._-Where a meeting was noticed for one day and held on a different day without notice of adjournment, all acts done were void and the officers elected were neither _de jure_ nor _de facto_ officers.(328)

*182.* _Proof of the Notice._-The proper proof of the notice would be the return of the officer serving the notice, in some States; and in others an affidavit of the person who served the notice. The proof of the services of a summons would be sufficient unless there is some other law or rule to the contrary.(329)

*183.* _Presiding Officer._-When the laws of the organization provide who shall preside at a meeting, but the minister contrary to such laws and against objections presided over the majority of the congregation, and the minority was presided over by the proper person, and both elected officers, the officers elected by the minority were the lawful ones.(330) However, where a meeting is presided over without objection by a member instead of the proper officer, the acts of the body are lawful.(331)

*184.* _Voters, Rules._-Unless the laws of the State otherwise provide, every religious organization has the right to determine who shall vote at its meetings and elections. If those provisions are reasonable, they are lawful. Under such provisions it has been repeatedly held that where there are rules requiring annual subscriptions to the church,(332) only those who rented and paid for pews, or those who paid a certain annual tax, or those who went to communion, were ent.i.tled to vote.(333) And where there was no rule, it was held that one who has not contributed to the church(334) and persons who attended church only occasionally and contributed only when they attended, were not qualified voters.(335) In the last case it was stated that a qualified voter is one who has attended regularly during the year and has contributed to the support of the church.

*185.* _Quorum, Majority._-A quorum of a congregation usually consists of those present at a duly called regular meeting, and a majority of those present is sufficient to carry questions, unless by rule or law otherwise provided.(336) But where there is a definite body in a corporation which has established no other rule, a majority of the members of the corporation const.i.tute a quorum.(337) Where the minutes of the clerk stated that upon due notice the members of the corporation met, a quorum is presumed.(338)

*186.* _Votes, Challenge, Inspectors, Casting Vote._-The reception of illegal votes does not invalidate an election unless they change the result.(339) If the presiding officer refuses to allow a qualified voter to vote, the right may be enforced through civil courts.(340) When votes have been received without challenge, it is then too late to raise the objection that the persons have no right to vote.(341) It is the duty of the inspectors to determine the qualifications of an elector at the time that he offers to vote, and before he votes; and if they decide in the exercise of their judgment, without malice or improper motives, the regularity of the election can not be questioned.(342) When a rule allows the presiding officer to vote and another rule states that he shall have the casting vote in case of a tie vote, he still had the right to cast the decisive vote.(343) Illegal voting in a religious society probably is not an indictable offense, but it is a disorderly act.(344)

*187.* _Written Notice, Prayer Meeting._-Where a five days' written notice is required to hold church meetings, an oral notice given on Sunday evening at the prayer meeting is not sufficient for a meeting on the following Wednesday. But a vote taken on Sunday to hire the minister and fix his salary, is not void.(345) Churches and benefit societies, such as insurance fraternities, being charitable organizations, may do business concerning such a.s.sociation on Sunday.(346)

*188.* _Expulsion, Damages._-A man who has been wrongfully expelled from a temperance society for religious reasons may recover damages therefor.(347)

CHAPTER XV. CHURCH RECORDS

*189.* _Evidence, Entries, Minutes._-The record of the proceedings of a religious society is evidence as to its doings, both in its own tribunals and the courts of the State. Such record consists of entries required to be made by the laws or rules of the society, the laws of the State, and the minutes adopted by the society. Therefore, it is of the greatest importance that it be kept with great exactness, omitting nothing that is important.(348) Also, the minutes of all the meetings should be correct before being duly adopted. All erasures and interlineations should be certified by the clerk and then signed by him.

*190.* _Uniformity._-Every entry required to be kept by the laws of the State as well as the rules of the Church, should be kept as to births, marriages, and death. Every diocese should have uniform record books in all parishes and every pastor should keep blanks printed in the form of a page of the record book, to issue certificates when required.

*191.* _Marriage, Death, Baptism, Birth, Church Records._-The church records duly kept in accordance with the discipline of the church, are admissible in evidence to prove marriage, death, and baptism. Where the record is incomplete, as giving the date of baptism only, it is not admissible in proof of date of birth. But if it gives the date of birth, it is _prima facie_ proof thereof.(349)

*192.* _Certified Copies._-Under statutes, certified copies of the record made by the custodian thereof are admissible in evidence in any case where the original would be admissible. Also, one who had compared a copy with the original record may testify to the same. The rule, as given, substantially prevails under statutes in the following States: Alabama, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Missouri, Oklahoma, Pennsylvania, Rhode Island, and Wisconsin; and also, in Ontario, Manitoba, and the Dominion of Canada.

*193.* _Rule of Admissibility._-A certified copy of the record of a baptism taken from a church register by the parish priest, when admissible at the place where such record is kept, as in Ireland, is admissible to prove the same fact in the State of Missouri.(350)

*194.* _Proper Record._-A book kept by a minister, which contained a regular statement in proper form of the admission of members, choice of officers, and transaction of business of the church, which was the only book kept by the parish, is the proper record of the church.(351)

*195.* _Name, Record._-The author would like to emphasize the importance of correct records. Frequently we find no Christian name given in the records of birth, which practically makes the record worthless. When a child is born it is ent.i.tled to a name, immediately, which should be given and be correct. At least the first Christian name should be correct; a mistake in a middle name is not material. This is true of deeds and records of all kinds, but practically of births, deaths, and marriages.(352)

CHAPTER XVI. CHURCH TRIBUNALS

*196.* _Jurisdiction, Privileges._-It is usual for every fraternity to have a tribunal of its own for the trial of members who break its laws or violate its discipline. Within their jurisdiction, the laws of the State give such tribunals great privileges and courts show them great respect.

The Freemasons, the Knights of Columbus, etc., and most of the churches, have such courts.(353)

*197.* _Trial, Property, Priest._-In most of the States a court will not interfere with the fair trial of a church tribunal. Neither will the court entertain a controversy concerning the t.i.tle or right of possession of real or personal property excepting at the instance of some person claiming a right thereto derived from or recognized by the law of the State or of the United States.(354) But when the bishop has deprived a subordinate priest of his authority to officiate as such, he may enjoin the priest from making use of the church property.(355)

*198.* _Doubt, Legal Rights._-The foregoing rule has some doubt cast on it in Delaware and Ma.s.sachusetts. The investigation of a dispute between members of a church by a committee according to church regulations, consented to by the parties, in which both take part, can have no effect on their legal rights. If the State law provides for cases of the kind, it is superior and must be submitted to. Also, an award or proceeding of a committee is not evidence for or against either party. However, any statement made, or admissions of the parties, if not of a recognized confidential nature, may be given in evidence on the trial in a court of the State.(356) The judgment of a mutual ecclesiastical council legally convoked will not bind either party rejecting it.(357)

*199.* _Bishop, Priest, Redress._-When a bishop removes a priest in the regular way according to the rules and discipline of his church, the priest has no redress.(358) Also, when a priest has submitted his case to the church tribunal according to the discipline of his church, he must abide by its decision, excepting where his civil rights or property rights as a citizen are involved, when he may appeal to the laws of the land.(359)

*200.* _Trial, Counsel._-The question whether a minister on trial in a church tribunal is ent.i.tled to be heard by counsel or attorneys depends upon the laws of the church, and it can not be said as a matter of law that he is ent.i.tled to counsel.(360)

*201.* _Removal, Suspension, Trial._-In the United States under the laws and discipline of the Catholic Church a priest may be removed from the charge of a congregation at the pleasure of the bishop, without trial; but he can not be suspended from his priestly functions without specific accusation and trial.(361)

*202.* _Charges, Fair Trial, Hearsay Evidence._-When a clergyman or officer is to be removed or a member of the congregation is to be excommunicated, it is necessary to fully state the charges against him and give him an opportunity for a fair trial according to the laws and rules of the religious society before rendering final judgment. All the allegations of the complaint should be made upon positive knowledge of the complainant or upon evidence that is admissible to prove the case in court. Rumor or gossip, known as mere hearsay evidence, is not sufficient to base a charge against the character of any one.(362)

*203.* _Trial, Testimony, Slander._-A church judgment, where there has been a full and fair trial or when members submit to the church tribunal, and the judgment has only been rebuke, censure, suspension, or excommunication, is usually upheld by the courts; and when the testimony given on such trial is concerning immoral or scandalous conduct or crime, if those taking part act in good faith and within the scope of the authority of the church, they are protected by law and not liable to an action for damages for libel or slander.(363)

*204.* _Remedies, Secular Courts._-In cases involving church doctrine and discipline only, all remedies within the church must be exhausted by a member before the secular courts will interfere, if they will interfere at all.(364)

*205.* _Notice, Waiver._-When the laws of the church provide the tribunal and procedure, if the person proceeded against avoids the service of the notice or refuses to submit to the court, the notice of trial required to be served might thereby be considered waived and the tribunal might proceed with the trial in the absence of the accused.(365)

*206.* _Appeal, Decision, Limitation._-The right to appeal from one court to another of higher jurisdiction is generally recognized.(366) If after trial in the lower tribunal of the Church, an appeal is taken, the decision on the appeal is binding upon the parties and also upon the inferior tribunal.(367) In the Anglican and some other churches, there is no limitation as to time when offenses against the discipline of the church may be inquired into.(368)

The Catholic Church has a limitation as to prescriptive rights, to-wit: "Three years in case of movable property; ten years in case of a right, or of immovable property, _inter praesentes_; twenty years in the same case, _inter absentes_."(369) Also, there are limitations in canonical cases, varying from one to twenty years.(370) There is no statute of limitation on lawful debts.

*207.* _Procedure, Judge, Juror, Witness._-If there are no rules of procedure prescribed by the church tribunal, the proper practice is to follow the State courts; as, for example, where the State law forbids an officer of the court who has an interest in the proceeding to sit as judge or juror, the same would apply to the church tribunal, it being the common law of the land. Also, in States where a person who is interested in a matter is not a competent witness, in the absence of a different rule in the church, the same rule would apply in the church tribunal.(371)

*208.* _Catholic Discipline._-A church member has no right to sue any one in holy orders in the civil court without leave. That is, a layman or priest should obtain leave of the bishop to sue a priest. In some countries it is ground for excommunication to violate the rule. This rule is a.n.a.logous to the general rule that a sovereign state can not be sued without its consent.(372) In this country, where there is no ecclesiastical court recognized in law, leave is rarely asked.(373)

CHAPTER XVII. STATE COURTS

*209.* _Decision, Ecclesiastical Matter._-The decision of the highest tribunal of the church on a purely ecclesiastical matter will not be disturbed by civil courts unless it is in open defiance and express violation of the const.i.tution of such body.(374)

*210.* _Right of Property, Civil Rights._-Where there are several church tribunals one above another, when the highest tribunal having jurisdiction of the case has decided a question as to the right of property, a civil court will accept such decision of the church tribunal as conclusive.(375) The courts give way to the usages and regulations of the church so far as they are not inconsistent with the const.i.tution and laws of the State.(376) As far as civil rights are concerned, the statute of limitations may be pleaded even where those rights are founded upon some law or rule of the denomination.(377)

*211.* _Creed, Factions, Property, Management._-The supreme court exercises no ecclesiastical jurisdiction, but accepts what the highest ecclesiastical authority in each church promulgates as the faith and practice of that church, and will not determine for itself what that faith or creed is in order to establish the rights of respective factions in the church to the church property. But a majority of a congregation that secedes from the church and forms a new organization can not claim any of the property.(378) The civil courts will not interfere with church management so far as concerns the spiritual discipline of the members, but where civil rights of property are involved, the courts may determine them.(379) The civil rights of a religious society or its members are within the jurisdiction of the State courts.(380)