poses, are elected by the parish, or by the minister and parish. But several opinions concur in the position that the electors are corporators. Those of Chancellor Walworth in the Baptist Church v. Witherell, and Lawyer v. Cipperly, have been stated. A. V. Ch. Sandford seems to have entertained the same opinion. (Cammeyer v. United German Lutheran Churches, 2 Sandf., ch. 186), and so I infer did Gardiner, president, in Miller v. Gable, in the court for the correction of errors. (2 Denio 548.) The persons entitled to vote are designated by the statute. At the first election, for the purpose of organizing, they must be male adults, belonging to the church, congregation or society, and must have statedly worshiped with the same, or have formerly been considered as belonging thereto. And after the first election they must have been stated attendants on divine worship in said church, congregation or society, at least one year previous, and have contributed to the support of the church, congregation or society, according to its usages and customs.

The statute, therefore, declares, who are the corporators, and the court of chancery can not indirectly disfranchise a member by declaring that he does not possess the necessary qualifications. That power is expressly given to others by the act, and law courts, in case of controversy, alone can review the matter, if that can be done by any tribunal. If the foregoing views are correct, then those parts of the decree appealed from in this case, which removed some of the defendants as trustees or officers of the corporation, and which declare that the adherents of Dr. Bullions are not members of the corporation, and who are electors therein, and which provide for a new election of trustees, are erroneous; the court of chancery having no power of amotion of an officer of these corporations, or to disfranchise a member thereof, or interfere with or control the election of its officers.

But, although a court of chancery has no jurisdiction with regard to the election or amotion of corporators, it may, in some cases, where a corporation is a trustee, take from it the trust fund, if the trust be abused.

In this case the corporation, together with four of the six trustees, and Dr. Bullions, claiming to be and officiating as minister, are made defendants. It is admitted that the legal estate is in the corporation. The officers of the corporation, as individuals, have no more beneficial interest than any other corporators. It was said in Verplank v. The Mer. Ins. Co. that the relation of cestui que trust and trustee does not exist between the corporation and stockholders of an incorporated company. (1 Edw. Ch. Rep. 47, per McCoun, V. C.) But the vice-chancellor further added, that a relation was created between the stockholders and those directors, who in their character of trustees become accountable for any dereliction of duty or violation of the trust reposed in them. And he saw no objection to the exercise of an equity power over such persons, in the same manner as it would be exercised over any other trustees. Now a trustee is a "person in whom some estate, interest or power, in or affecting property of any 13 Paige 296. 27 Paige 281.

description, is vested for the benefit of another." (Hill on Trustees, 411.) In The People v. Runkle the congregation are said to be the constituents of the trustees. (9 John. 156.) In the case of the Dutch Church in Garden Street v. Mott, the chancellor speaks of the legislature having power to "transfer the legal title from the naked trustees to the cestui que trust, after the latter were incorporated.' (7 Paige S2.) In Gable v. Miller, the chancellor decided that the property of the corporation was held in trust for the support of the worship of God by a church to be in a particular connection; and for teaching certain particular doctrines. (10 Paige 649.) Senator Porter, in the same cause, in deliving an opinion in the court for the correction of errors, in favor of sustaining the decree, considered those members of the church who had remained faithful to their allegiance to the government of the church as "the rightful members of the church, and the only cestuis que trust of the property held for the use of the church." (2 Denio 568.) In Bowden v. McLeod, Vice-Chancellor McCoun thought equity would exercise' jurisdiction over the property of religious societies, as being trust property. In that case, by a special act, the minister, elders and deacons were constituted trustees for life. (1 Edw. Ch. Rep. 588. And see 16 Mass. 495, 505, 510.) By the fourth section of the statute under which religious societies are incorporated, the trustees, as we have seen, take possession of and hold all the estate, whether real or personal, and whether before held directly by the church, congregation or society, or by some other person to their use, and however acquired, or by whomsoever held; and they may purchase and demise, lease and improve the same for the use of the church, congregation or society, or other pious uses.

*

The legal estate is clearly in the trustees, and they are to manage the same, and regulate and order all matters relating to the temporal concerns and revenues of the church, congregation or society. It is said they hold the property in trust, and this is so stated in the pleadings. But I think not in the ordinary sense of that expression. They too, individually, are usually cestuis que trust, only holding the legal estate while in office, but in the management of it, and in everything relating to their responsibility, they are upon the same footing with the officers of any incorporated company, and liable for fraud or negligence, or gross mismanagement. Mere trustees are liable for these, but in this case the trustees are, as to the management of the property, more properly officers or agents, and with a broader discretion in some respects than mere trustees. (Ang. & Ames on Corp., 306-7.)

This brings us to the great question in this cause: are the defendants, or any of them, violating the trust reposed in them, or their duty, by adhering to and supporting Dr. Bullions? For, if that is so, although a court of chancery can not remove them and can not divest them of this property, it can compel them to do their duty in relation to it.

Upon this examination of the subject, it seems to me that certain general rules are applicable to these institutions when incorporated

under the third section of the act-that chancery has no power to disfranchise one of the members, nor to remove the trustees or declare their election void; nor direct who shall vote; or in any way interfere with their election. This I have already very fully considered; that the trustees may be restrained from wasting the property, and from such management of it as the court can clearly see, unreasonable and unconscientiously deprives the society, or some part of it, of its enjoyment; and also from applying it to the promotion of tenets clearly opposed and adverse to the fundamental principles of the faith and doctrine professed by the church or society at the time the corporation purchased the property. But the exercise of this jurisdiction should generally be restrictive, and not mandatory; for the statute is their guide and authority for the future, and gives a very broad margin for the exercise of discretion and religious freedom. (Lord Cottenham in The Attorney-General v. Shore, in the House of Lords; Lord Brougham in Milligan v. Mitchell; Lane v. Newdigate, 10 Ves. 193;) that the support of particular doctrines, or systems of worship or government, or a connection with some particular judicatory, may be made a condition in a grant or donation, but if no such condition be expressed, none should be implied, except as to cardinal points. This last principle, I think, may be deduced from the cases already cited, particularly The Attorney-General v. Pearson, The Attorney-General v. Shore, The Attorney-General v. Drummond, Craigdallie v. Aikman, Milligan v. Mitchell, Porter v. Clark, Miller v. Gable,7 Baptist Church v. Witherell, Lawyer v. Cipperly,' The Presbyterian Church v. Johnston.10 It is hardly necessary to remark that, in Deun v. Bolton, 11 the office bearers of the church were, by statute, ex officio trustees, and of course a deposition of the former would be an amotion of the latter. Another general rule is, that the church or spiritual body is authorized to call the minister, either by itself or by some other mode, according to usage. In order to reach the revenues of the corporation, that call must be ratified by the congregation or body entitled to elect trustees, by fixing the salary of the minister; and then the trustee may apply the revenues to his support.

5

1

8

2

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6

But whether the use of the house by a majority of the congregation under the ministry of the defendant, Dr. Bullions, is such an act as that the minority can.complain in this court, and ask for restrictive measures, is a point of much difficulty. It must be remembered that this associate church adheres to the presbyterial form of government. (Dec. and Tes., p. 3, art. 8, Ch. Gov. and Dis., p. 1, art. 4 p. 3, art. 12.) And after the cases of Diefendorf v. Reformed Calvinistic Church, 12 and The Dutch Church v. Bradford,13 I

do not see how we can look beyond the decision of the synod. All the authorities agree that the civil courts can not, upon the merits, overhale the decisions of ecclesiastical judicatories in matters properly within their province. Dr. Bullions himself took the case to the synod, and the deposition of a minister is purely an ecclesiastical matter; though the effect of that deposition upon civil rights is quite another thing. The church judicatories had power to depose him, but they could not sequester the property of the corporation, nor compel the congregation, against the will of a majority, and the trustees, to receive a minister. The defendants, in their answer, admit that a minister who is under rightful sentence of excommunication can not be permitted to occupy the pulpit or administer divine ordinances. Our courts have, as we have seen, declared that such dissolution of the connection between pastor and flock discharges the civil contract, even the individual subscriptions for the support of the former. It is true, a majority of the church in those cases were probably opposed to the minister, but the decisions were not put upon that ground. Dr. Bullions must, for the purpose of this case, be deemed deposed from the office of the holy ministry; and, notwithstanding a large majority of this enlightened society still consider him in good standing, a minority of the corporators are of the opposite opinion, and, giving full effect to proceedings against him, insist that his employment is a grievance that deprives them of a reasonable enjoyment of the corporate property, which can be redressed in this court. And with much hesitation, I have come to the conclusion that, upon this point, the law is with them.

There must be a decree restraining the defendants from using the temporalities of the corporation for the support of Dr. Bullions' ministry as long as he is under sentence of deprivation. All the other portions of the decree which have been appealed from must be reversed. Neither party can have costs against the other on this appeal. The complainants have asked too much, and neither side is free from blame. The rule is, where both parties have claimed what they are not entitled to, and each has succeeded as to part of the matters in litigation between them, to give costs to neither. (Crippen v. Hermance, 9 Paige 211.) Nor am I disposed to burden the corporate funds with the costs, except the costs of putting in the answer by the corporation. Each party must in all other respects bear their own. It was stated on the argument that the complainants, under the vice-chancellor's decree, had taken possession of and occupied the church edifice. The defendants, who were trustees at the time of the commencement of the suit, and their successors, are entitled to the possession of the property of the corporation, but, under all the circumstances of this case, there should be no accounting for the mere use of the property.

If there has been waste or destruction of property, that should be made good.

PAIGE, P. J., concurred.

(Dissenting opinion of CADY, J., omitted.)

Note. See particularly 1819, Dartmouth College v. Woodward, 4 Wheat. 518, infra, p. 708; 1815, Phillips Academy v. King, 12 Mass. 546; 1823, Society for Propagating the Gospel v. New Haven, 8 Wheat. (U. S.) 464; 1864, Board of Education v. Greenbaum, 39 Ill. 610; 1893, Bakewell v. Board of Education, (I.), 33 N. E. Rep. 186; 1879, Magdalen Hospital v. Knotts, 4 App. Cas. 324; 1872, Gooch v. Association for Relief of Aged Females, 109 Mass. 558; 1895, Hibernian Benev. Soc. v. Kelly, 28 Ore. 173, 52 Am. St. Rep. 769; 1894, Philadelphia v. Masonic Home, 160 Pa. St. 572, 40 Am. St. Rep. 736; 1880, Hennepin Co. v. Brotherhood, etc., 27 Minn. 460, 38 Am. Rep. 298; 1874, Mitchell v. Treasurer of Franklin Co., 25 Ohio St. 143; 1890, Wagner Free Institute v. Philadelphia, 132 Pa. St. 612, 19 Am. St. Rep. 613; 1888, Fire Ins. Patrol v. Boyd, 120 Pa. St. 624, 6 Am. St. R. 745; 1822, American Asylum v. Phoenix Bank, 4 Conn. 172, 10 Am. D. 112; 1876, McDonald v. Massachusetts Gen'l Hospital, 120 Mass. 432, 21 Am. Rep. 529; 1883, Coit v. Comstock, 51 Conn. 352, 50 Am. Rep. 29; 1893, Sears v. Chapman, 158 Mass. 400, 35 Am. St. Rep. 502; 1889, Coe v. Washington Mills, 149 Mass. 543; 1886, Howe v. Wilson, 91 Mo. 45, 60 Am. Rep. 226; 1880, Rhymer's Appeal, 93 Pa. St. 142, 39 Am. Rep. 736, n. 738; 1881, Manners v. Philadelphia Library Co., 93 Pa. St. 165, 39 Am. Rep. 741, note 748; 1882, Bangor v. Masonic Lodge, 73 Me. 428, 40 Am. Rep. 369.

Sec. 40. Same. Civil corporations are:

I. Quasi.

2. Pure or complete.

THE BOARD OF

COMMISSIONERS OF HAMILTON COUNTY v.

MIGHELS.1

1857. IN THE SUPREME COURT OF OHIO. 7 Ohio State Reports 109-125.

In error to the superior court of Cincinnati.

BRINKERHOFF, J. The defendant in error brought suit in the superior court of Cincinnati against the plaintiffs in error, and, on the 14th of May, 1855, filed therein the following petition, to wit: "The plaintiff, a citizen of the state of Ohio, and a resident of the county of Hamilton, says that the defendants, the board of county commissioners of the county of Hamilton, in the state of Ohio, being authorized by law, in the exercise of their discretion, to erect a good and convenient court-house, upon such plan as they might project, in the city of Cincinnati, the seat of justice of such county, were, on the eleventh and twelfth days of December, 1854, engaged in the erection of such court-house, in the city of Cincinnati, which building was designed and then used for the holding of the courts of the county of Hamilton, and for the offices of the sheriff, clerk of the courts and certain other county officers, under the direction and sanction of the defendants. On the eleventh and twelfth days of December, 1854, the rooms of the northwest corner of said building, on the first floor, were used, under the direction of the defendants, for the holding of the criminal court of Hamilton county, and a certain trial was then and there had, at which the plaintiff was required, by a writ of subpena, to appear and testify, and was detained under the order of the court, as such witness, till night. In the erection of such court-house, upon the 1 1 Arguments and part of opinion omitted.