Wednesday, January 04, 2006

Some History of Civil Laws Affecting Religious Corporations

Here are a few remarks of the history concerning the civil laws which affect religious corporations. [The Canonical and Civil Status of Catholic Parishes in the United States (c)1926, by Fr. Charles Augustine, OSB, DD]

More to follow in another post. Bear in mind that this was written about 10 years after the codification of Canon Law in 1917. Nonetheless, the historical significance and perspective, I think, is essential for a better understanding of what we are witnessing in the Church today, with the sexual abuse lawsuits, the bankruptcies, and the various schisms (such as St Stanislaus):
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American Civil Church Law

"In English ecclesiastical law it [the term parish] has been used to designate the terri­tory committed to the particular charge of a parson or priest. In the absence of a State Church here however, the status of a parish is rendered comparatively unimportant; if used in ecclesiastical divisions, it has just such importance and particular signification as may be given it under ecclesiastical regulations. The rules of a church organization constitute the law for its government, and the civil court will, in general, recognize and enforce these as any other voluntary agreement between the parties. But what may be the law of the church government is a matter of fact in court of law, and must appear in the proof" (80)

This is in perfect keeping with the oft re­peated principle prevailing in our country, viz., that the civil courts have, and will ex­ercise, no jurisdiction in reviewing the actions of ecclesiastical bodies in matters relating purely to the faith and discipline of their members.(81) "The bishop is the governing power of the Catholic Church in his diocese. He is said to be the supreme pastor, the su­preme teacher, the supreme governor. It is his duty, under the laws and discipline of the Church, to administer the regulations above mentioned, and in so doing necessarily to con­strue and interpret them. His decision is to be final and conclusive, except as reviewed by his ecclesiastical superiors at Rome." (82)

This ruling can be accepted, as in accord­ance with the Code; see can. 329, 334-336, 343, and, with regard to the matter more closely connected, can. 216, § I, 2; 455, § I; can.- 1414, § 2. But we cannot now, that the Code is in force, accept the statement made in a Massachusetts case: "Under the law of the Roman Catholic Church the bishop has full power in the administration of church affairs; there are no separate parishes; the diocese is the parish and the bishop the universal parish priest; all power possessed by priests or pas­tors is delegated from the bishop;" (83)The words placed in italics are no longer true, even in our country, because contradicted by the Code. (84)

While single parishes may be incorporated as religious corporations or trustee corpora­tions, territorial parishes as such are not ac­ceptable as corporations. Thus a Nebraska court decided: "Territorial areas described in the nomenclature of the Roman Catholic Church as parishes, are not recognized by the law as corporate or political entities; and if they were such, the Church could not legislate concerning them." (85) This is quite intelli­gible from the viewpoint of the civil law, since a territorial parish or corporation would affect property and civil rights of pastor and parishioners; but this decision does not affect church law, first because, as stated above, most of the territorial corporations have ceased, and, secondly, membership in a corporation is not essentially connected with territorial extension.

It is generally held that corporations sole in the United States are rare.(86) The fact is that the term "corporation sole" sounds like a con­tradictio in adiecto. For it rests on a twofold fiction, viz.} first, the fiction (mentioned above) of the collective will united into one, and, secondly, that the bishop is the diocese.

Here may be added a few remarks concern­ing the civil laws affecting religious corpora­tions.

a) A corporation, in civil law, is generally defined as a body consisting of one or more natural persons, empowered by law to act as an individual, and continued by a succession of members.(87)

b) A parish may be incorporated, in most of our States, as a religious corporation; it may also add as a further purpose, education, provided some educational institution, such as a parochial or high school, is immediately connected with the church. The "statutes" of each State must be properly obeyed and carried out.

c) The Revised Statutes of Missouri, 1919, state (Sect. 10,264): "Any number of persons not less than three,"--the State of Missouri knows no corporation sole,-"who shall have associated themselves by articles of agreement in writing, as a society, company, association or organization formed for benevolent, religious, scientific, fraternal-beneficial, or educational purposes, may be consolidated and united into a corporation. Such articles of agreement may be organic regulations, or a constitution, or other form of association, and any corporate name, not already assumed by another corporation, may be chosen as the title of the corporation; provided, always, that the purpose and scope of the association be clearly and fully set forth.". . . (Sect, 3433): "The persons holding the offices respectively of president, secretary and treasurer of the association, or other chief officers, by whatever name they may be known, shall submit to the circuit court having jurisdiction in the city or country where such association is located, the articles of agreement, with the petition praying for a pro forma decree thereon. If the court shall be of opinion that such articles of agreement and the purpose of the association come properly within the purview of this article, and are not inconsistent with the Constitution or laws of the United States, or of this State, the court shall enter on record an order to that effect, a certified copy of which order shall, by the clerk, be indorsed upon or attached to said articles."

d) Similar laws exist in practically every State, prescribing the conditions on which corporations can be formed. Since, however, the above mentioned decree of the S. C. of the Council makes special reference to the laws of the State of New York, the passage from the New York statutes referring to parish corporations may here be inserted:

"An unincorporated Roman Catholic church or an unincorporated Christian Orthodox Catholic church of the Eastern Confession in this State may become incorporated as a church by executing, acknowledging, and filing a certificate of incorporation, stating the corporate name by which such church shall be known, and the country, town, city or village where its principal place of worship is, or is intended to be located.

"A certificate of incorporation of an unincorporated Roman Catholic church shall be executed and acknowledged by the Roman Catholic Archbishop or Bishop, and the Vicar-General of the diocese in which its place of worship is, and by the rector of the church, and by two laymen, members of such church, who shall be selected by such officials, or by a majority of such officials.

"On filing such certificate, such church shall be a corporation by the name stated in the certificate.

"The Archbishop or Bishop and the Vicar General of the diocese to which any incorporated Roman Catholic church belongs, the rector of such church, and their successors in office, shall, by virtue of their offices, be trustees of such church. Two laymen, members of such incorporated church, selected by such officers or a majority of them, shall also be trustees of such incorporated church, and such officers and such laymen trustees shall together constitute the board of trustees thereof. The two laymen signing the certificate of incorporation of an incorporated Roman Catholic church shall be the two laymen trustees thereof during the first year of its corporate existence. The term of office of the two laymen trustees of an incorporated Roman Catholic church shall be one year. Whenever the office of any such layman trustee shall become vacant by expiration of term of office or otherwise, his successor shall be appointed from members of the church, by such officers or a majority of them. No act or proceeding of the trustees of any such incorporated church shall be valid without the sanction of the Archbishop or Bishop of the diocese to which such church belongs, or in case of their absence or inability to act, without the sanction of the Vicar-General or of the administrator of such diocese."

"Wherever a Roman Catholic parish has been heretofore or shall hereafter be duly divided by the Roman Catholic Bishop having jurisdiction over said parish, and the original Roman Catholic church corporation is given one part of the old parish, and a new or sec­ond Roman Catholic church corporation is given the remaining part of the old parish, and it further appears that by reason of the said division the original Roman Catholic church corporation holds title to real prop­erty situate within the part of the old parish that was given to the new or second Roman Catholic church corporation, then the said Roman Catholic Bishop or his successor shall have the right and power, of himself, inde­pendently of any action or consent on the part of the trustees of the original Roman Catholic church corporation, to transfer the title of the said real property, with or without valuable consideration, to the said new or second Ro­man Catholic church corporation. Said transfer shall be made by the said Roman Catholic Bishop or his successor after having complied with the requirements of the code of civil procedure in the same manner as the trustees of any religious corporation are com­pelled to do before making a transfer of church property. If a valuable considera­tion is paid for the transfer, the same shall be received by the said Roman Catholic Bishop or his successor, and distributed between the said original Roman Catholic church cor­poration and the new or second Roman Cath­olic church corporation, in such proportions as in the discretion of the said Bishop or his successor may seem proper."

The Archbishop of New York, in a Pas­toral Instruction, 1909, added that four mem­bers of a board consisting of five members were required for a quorum.

"Essentials of a Corporation.-The hold­ing of the meeting, the election of trustees, and the execution of the certificate in accord­ance with the statute, constitute the substan­tial requirements to create a corporation, although the recording is necessary to its complete consummation. An error in re­cording the loss of one or more seals after they were legally and properly affixed, would not prevent the corporation from taking effect as such."(88)

"The validity of the incorporation of a re­ligious society cannot be drawn in question by a private suitor in a collateral proceeding. The appropriate remedy is by writ quo war­ranto at the suit of the attorney general, or perhaps a prosecuting attorney." (89)

"The only and primary object of the cor­poration is the acquisition and taking care of property. The rules of the church as to the discipline of members have no relation to the corporate property or corporate matters."(90)

f) Corporations are generally allowed to acquire and hold property by subscription, purchase, devise, or gift.(91) But some limits have been put on corporations in this regard, one of which is that the property held should not exceed the purpose for which the corpora­tion was formed. "The question whether a religious corporation has capacity to take property in excess of the amount prescribed by its charter, can be raised only by the State in a direct proceeding for that purpose. The question cannot be raised collaterally at the instance of a private individual who may be interested in the property, nor in a pro­ceeding for the construction of a will." (92) But "a society organized for religious pur­poses under the Ohio statute could not law­fully establish a savings bank and engage in the general business of banking. Such busi­ness was not authorized by its charter." (93)

"If a corporation takes land by grant or de­vise, in trust or otherwise, which, by its char­ter, it cannot hold, its title is good as against third persons and strangers; and the State alone can interfere. If the corporation ex­ceeds the prescribed amount, though it be by an original purchase, nobody but the State can interfere with the holding of the property which it acquires, and it is a matter of which individuals cannot avail themselves in any way." (94)

"A promissory note purporting to be made by the corporation and signed by its presi­dent, secretary, and treasurer was held not en­forcible (against the corporation) without proof that the note was made by authority of the corporation. Trustees have no power to bind the corporation by individual action, but the board must act as a body." (95)

"A religious association, although by rea­son of irregularities in complying with the provisions of the respective State's Statutes it has failed to become a corporation, may nevertheless hold property given to it by the name which it assumed, and another religious society subsequently incorporated, is not en­titled to take the name or the property."(96)

g) Hence it was held that even if the cer­tificate of incorporation was defective in some particulars, the society became a de facto corporation} and it might be presumed that all the requirements of the statute were com­plied with. "A bequest made to a corpora­tion which had thus existed de facto for nearly twenty years, was adjudged to it.(97)

As to the name of a corporation, there is a very interesting decision of a Pennsylvania court concerning a schismatic Polish congre­gation which had usurped a name reserved to the Roman Catholic Church. The char­ter was refused.(98)

h) Where there is a definite body in a corporation-trustees-the majority of that body must not only exist at the time when any act is to be done by them, but a majority of that body must attend the assembly where the act is to be done. (99)

i) Liability of Members of Religious or Charitable Corporations. "Religious or charitable corporations have no capital stock and are usually dependent upon personal con­tributions for their support. Members of such organizations may and often do make themselves personally responsible for the pay­ment of the corporate expenses and debts. Where, however, no contract has been made between the stockholders,-or more accur­ately speaking the members,-of such corpor­ations, and the creditors of the organization, courts of equity will deal with the corporation and its members in a manner most calculated to further the ends of justice. For example, the members of a church duly incorporated as such, but of course without any capital stock, as is usual in such instances, have been held individually liable for the pastor's salary." (100)

j) The dissolution or end of a corporation is effected by the expiration of the time fixed by the statute as the life of the corporation.(10l) But it may also be ended by a positive law of the State, although this may be contrary to church discipline, for "no church discipline can supersede the law of the State." (102) This latter disposition is, of course, to be under­stood of the end of the corporation as such, not of the end of the parish as such; because the State would not attempt to dissolve a par­ish or congregation which claims no corporate rights.

k) Finally it may be stated that the property of a religious corporation is not exempt from assessment for local improve­ments.

-----Notes-----

80 Tuigg v. Treacy, 104 Pa. 493 (Charles Z. Lincoln, The Civil Law and the Church, 1916, page 434).
81 Tulbright v. Higgenbotham, 133 Mo. 668, et passim (Lin­coln, I. c., 129 f.).
82 Bonacum v. Harrington, Neb. 831 (Lincoln, l. c., 661).
83 Leahy v. Williams, 141 Mass. 345 (Lincoln, l. c., 662).
84 See can. 216, § I; can. 451, § I; can. 464, § I.-The pas­tors' rights are ordinary (can. 462), not to be limited at ran­dom; their jurisdiction for hearing confessions also is ordinary, attached to the office; can. 873.
85 McEntee v. Bonacum, 66 Neb. 651 (Lincoln, I. c., 440).
86 See Cyclopedia of Political Science, ed. J. Lalor, Chicago, 1881, I, 664; Everybody's Legal Advisor, ed. A. S. Bolles, New York, 1922, IV, 856.
87 Cyclopedia cit.; Blackstone-Cooley, Commentaries, offer no definition proper, but Blackstone says: "Our laws have con­siderably refined and improved upon the invention, according to the usual genius of the English nation"; but the English in­vention of a corporation sole is a juridical absurdity, and the rest of the refinement comes from the much maligned Canon Law of the "Romish" Church.
88 Trustees St. Jacob's Church v. DIy, 73 N. Y. 323 (Lincoln, l. c., 606).
89 Klix v. St. Stanislaus Church, 137 Mo. App. 347 (Lincoln, ib.).
90 Sale v. First Regular Baptist Church, Mason City, 62 Ia. 26 (Lincoln, 1. c., 610).
91 Revised Statutes of Mo., 1909. sect. 3443; Bolles, l. c., IV, 862.
92 Hanson v. Little Sisters of the Poor, Baltimore and St. Mary's Church, Hampden, 79 Md. 434 (Lincoln, l. c., 600).
93 Huber v. German Congregation, 16 Ohio St. 371 (Lincoln, l. c., 599).
94 De Camp v. Dobbins, 29 N. J. Eq. 36 (Lincoln, l. c., 6ii).
95 People's Bank v. St. Anthony's Church, 109 N. Y. 512 (Lincoln, I. c., 6ii); Dennison v. Austin, 15 Wis. 334 (Lin­coln, l. c.).
96 Glendale Union Christian Society v. Brown, 109 Mass. 163 (Lincoln, l. c., 604).
97 Chittendon v. Chittendon, 1 Am. L. R. (N. Yo') 538 (Lin­coln, l. c.).
98 Re Charter Church of Mother of God, Czenstochowa, 5 Lack. Leg. N. (Pa.) 128 (Lincoln, l. c., 612 f.). .
99 Moore v. Rector St. Thomas, .. Abb. N. C. (N. Y.) 51 (Lincoln, l. c., 615).
100 Bigelow v. Congregational Society 15 Vt., 370.
101 Sheehy v. Blake, 46 N. W. Rep. (Wis.) 537. Both these decisions are quoted in American Extension University, pub­lished by A. C. Burnham, 1921, page 78.
102 Harlem Presbyterian Church N. Y. 5 Hun. (N. Y.) 442 (Lincoln, I. c., 613).


More to follow later. This is just a small extract... I apologize for any typos...

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