1. When, in courts of concurrent jurisdiction, the pendency of a
suit in one is relied on to defeat a second suit in the other, the
identity of the parties, of the case made, and of the relief sought
should be such that if the first suit had been decided, it could be
pleaded in bar as a former adjudication.
2. In such cases, the proceedings in an appellate court are part
of the proceedings in the first court, and orders made by it to be
enforced by the court of primary jurisdiction are, while
unexecuted, a part of the case in the first suit, which may be
relied on as
lis pendens in reference to the second
suit.
3. Hence, an unexecuted order of this kind, made by a state
court to restore possession to the parties who had been deprived of
it by a decree which had been reversed, cannot be interfered with
by another court by way of injunction, especially by a court of the
United States, by reason of the Act of Congress of March 2, 1793, 1
Stat. at Large 334, § 5.
Page 80 U. S. 680
4. But the nature and character of the possession so decreed to
be delivered may be inquired into by another court, and if it was
of a fiduciary character, and the trust was not involved in the
first suit, a second suit may be sustained in any court of
competent jurisdiction to declare, define, and protect the trust,
though the first suit may be still pending.
5. Controversies in the civil courts concerning property rights
of religious societies are generally to be decided by a reference
to one or more of three propositions:
(1st) Was the property or fund which is in question devoted by
the express terms of the gift, grant, or sale by which it was
acquired to the support of any specific religious doctrine or
belief, or was it acquired for the general use of the society for
religious purposes, with no other limitation?
(2d) Is the society which owned it of the strictly
congregational or independent form of church government, owing no
submission to any organization outside the congregation?
(3d) Or is it one of it number of such societies, united to form
a more general body of churches, with ecclesiastical control in the
general association over the members and societies of which it is
composed?
6. In the first class of cases, the court will, when necessary
to protect the trust to which the property has been devoted,
inquire into the religious faith or practice of the parties
claiming its use or control, and will see that it shall not be
diverted from that trust.
7. If the property was acquired in the ordinary way of purchase
or gift for the use of a religious society, the court will inquire
who constitute that society or its legitimate successors and award
to them the use of the property.
8. In case of the independent order of the congregation, this is
to be determined by the majority of the society, or by such
organization of the society as by its own rules constitute its
government.
9. In the class of cases in which property has been acquired in
the same way by a society which constitutes a subordinate part of a
general religious organization with established tribunals for
ecclesiastical government, these tribunals must decide all
questions of faith, discipline, rule, custom, or ecclesiastical
government.
10. In such cases where the right of property in the civil court
is dependent on the question of doctrine, discipline,
ecclesiastical law, rule, or custom, or church government, and that
has been decided by the highest tribunal within the organization to
which it has been carried, the civil court will accept that
decision as conclusive, and be governed by it in its application to
the case before it.
11. The principles which induced a different rule in the English
courts examined and rejected as inapplicable to the relations of
church and state in this country, and an examination of the
American cases found to sustain the principle above stated.
Page 80 U. S. 681
This was a litigation which grew out of certain disturbances in
what is known as the "Third or Walnut Street Presbyterian Church,"
of Louisville, Kentucky, and which resulted in a division of its
members into two distinct bodies, each claiming the exclusive use
of the property held and owned by that local church. The case was
thus:
The Presbyterian Church in the United States is a voluntary
religious organization, which has been in existence for more than
three-quarters of a century. It has a written Confession of Faith,
Form of Government, Book of Discipline, and Directory for Worship.
The government of the church is exercised by and through an
ascending series of "judicatories," known as Church Sessions,
Presbyteries, Synods, and a General Assembly.
The Church Session, consisting of the pastor and ruling elders
of a particular congregation, is charged with maintaining the
spiritual government of the congregation, for which purpose they
have various powers, among which is the power to receive members
into the church and to concert the best measures for promoting the
spiritual interests of the congregation. [
Footnote 1] This body, which thus controls in each
local church, is composed of the pastor and ruling elders. The
number of elders is variable, and a majority of the Session
governs. It acts, however, but as representing the congregation
which elects it. The elders, so far as the church edifice is
concerned, have no power to dispose of its use except as members of
the Session.
Connected with each local church, and apparently without any
functions in essence ecclesiastical, are what are called the
"Trustees" -- three persons usually, in whom is vested for form's
sake the legal title to the church edifice and other property, the
equitable power of management of the property being with the
Session. These Trustees are usually elected biennially; they are
subject to the Session, and may be removed by the congregation.
The Presbytery, consisting of all the ministers and one
Page 80 U. S. 682
ruling elder from each congregation within a certain district,
has various powers, among them the power to visit particular
churches for the purpose of inquiring into their state and
redressing the evils which may have arisen in them; to ordain, and
install, remove, and judge ministers; and, in general, power to
order whatever pertains to the spiritual welfare of the churches
under their care. [
Footnote
2]
The Synod, consisting of all the ministers and one ruling elder
from each congregation in a larger district, has various powers,
among them the power to receive and issue all appeals from
Presbyteries; to decide on all references made to them; to redress
whatever has been done by Presbyteries contrary to order; and
generally to take such order with respect to the Presbyteries,
Sessions, and people under their care as may be in conformity with
the world of God and the established rules, and which tend to
promote the edification of the church. [
Footnote 3]
The General Assembly, consisting of ministers and elders
commissioned from each Presbytery under its care, is the highest
judicatory of the Presbyterian Church, representing in one body all
of the particular churches of the denomination. Besides the power
of receiving and issuing appeals and references from inferior
judiciatories, to review the records of Synods, and to give them
advice and instruction in all cases submitted to them in conformity
with the constitution of the church, it is declared that it "shall
constitute the bond of union, peace, correspondence, and mutual
confidence among all our churches." [
Footnote 4]
"To the General Assembly also belongs the power of deciding in
all controversies respecting doctrine and discipline; of reproving,
warning, or hearing testimony against any error in doctrine or
immorality in practice in any Church, Presbytery, or Synod; . . .
of superintending the concerns of the whole church; . . . of
suppressing schismatical contentions and disputations; and, in
general, of recommending and attempting reformation of
Page 80 U. S. 683
manners, and the promotion of charity, truth, and holiness
through all the churches under their care. [
Footnote 5]"
The Walnut Street Presbyterian Church, of which we have spoken,
was organized about 1842, under the authority and as a part of the
Presbyterian Church in the United States, and, with the assent of
all its members, was received into connection with and under the
jurisdiction of the Presbytery of Louisville and the Synod of
Kentucky. It remained in such connection and under such
jurisdiction, without any disturbance among its members, until the
year 1865, when certain events took place in Kentucky which will be
stated presently.
After the organization, to-wit, in 1853, the said local church
purchased a lot of ground in Louisville, and a conveyance was made
to the church's trustees to have and to hold to them, and to their
successors, to be chosen by the congregation.
In 1854, the trustees of the church were incorporated with power
to hold any real estate then owned by it, the property to pass to
them and their successors in office. By the act, it was declared
that the trustees, to be elected by the members of the
congregation, should continue in office two years and until their
successors were elected, "unless they shall sooner resign, or
refuse to act, or cease to be members of the said church." The
trustees were charged by the act with the duty of providing for the
comfort and convenience of the congregation, the preservation of
the property, and passing such regulations relative to the
government and control of the church property as they might think
proper, not inconsistent with the Constitution of the United States
and the laws of Kentucky.
Though neither the deed nor charter said this in terms, it was
admitted that both contemplated the connection of the local church
with the general Presbyterian one, and subjected both property and
trustees alike to the operation of its fundamental laws.
Page 80 U. S. 684
We now pass to some history of the disturbances to which we have
referred as matter to be related.
With the outbreak of the war of the insurrection and the action
of it upon the subject of slavery, a very excited condition of
things originating with and influenced by that subject manifested
itself in the Walnut Street Church. One of the earliest exhibitions
of the matter was in reference to the reengagement as minister of a
certain Reverend
Mr. McElroy. The members of the church
were asked by a majority of the Session, at this time composed of
three persons, named
Watson, Galt, and Avery, [
Footnote 6] to make a call upon
Mr.
McElroy to become the pastor, but at a congregational meeting,
the majority of the members declined to make the call. The majority
of the Session (that is to say,
Watson and
Galt)
renewed, notwithstanding, the engagement of
Mr. McElroy
for six months. In August, 1865, the majority of the congregation
asked the Session that on the expiration of the then current six
months of
Mr. McElroy's engagement, no further renewal
thereof should be made. In connection with these efforts of the
majority of the Session (
Watson and
Galt) to
maintain
Mr. McElroy as preacher, charges were preferred
against three members of the congregation, named B. F. Avery, T. J.
Hackney, and D. McNaughtan, who had cooperated with the majority of
it in the movements to obtain another minister. And about the same
time, by way of counteraction, apparently, charges were preferred
by some of the majority against
Watson and
Galt.
While these troubles were existing, some of the members of the
church appealed to the Synod of Kentucky, which body, on the 20th
of October, 1865, appointed a committee to visit the congregation,
"with power to call a congregational meeting for the purpose of
electing
additional ruling elders, calling a
Page 80 U. S. 685
pastor, or choosing a stated supply, and doing any other
business competent to a congregational meeting that may appear to
them, the said congregation, necessary for their best interests."
The synodical committee thus appointed called a congregational
meeting for the purpose of the election, in January, 1866.
Watson and
Galt refused to open the church for
the meeting, but the majority, organizing themselves on the
sidewalk, elected a certain J. A. Leach, with B. F. Avery and D.
McNaughtan (which last two names have already appeared in our
history), additional ruling elders, who went through what they
deemed a valid process of ordination and installment. The other
admitted elders were
Watson, Galt, and Hackney. They
trustees of the church were
Henry Farley, George Fulton,
and B. F. Avery, and they had they actual possession of the church
property.
Fulton and
Farley, uniting with
Watson and
Galt, denied the validity of the
election of Avery, Leach, and McNaughtan, and refused to allow them
any participation
as elders in the control of the church
property. Hackney admitted the validity of such election, and
recognized Avery, Leach, and McNaughtan as lawful elders.
In this state of things, Avery and his associates filed a bill,
on the 1st of February, 1866, in the Louisville Chancery Court
against
Watson, Galt, Fulton, and
Farley for the
purpose of asserting the right of Avery, Leach, and McNaughtan,
as elders, to participate with the other elders in the
management of the church property for purposes of religious
worship.
In the progress of that case the three trustees,
Farley,
Fulton, and Avery were appointed, on the 20th of March, 1866,
receivers "to take charge of the church building, and all property
belonging to the said church" during the pendency of the suit or
until the further order of the court, and they were
"ordered to keep and preserve the said property, and keep it in
repair to the best of their ability, and to open the various
portions of the building ready for worship, and others services of
said church, according to the laws and usages of the Presbyterian
Church, and not to prevent any
Page 80 U. S. 686
part of the congregation from attendance upon the meetings of
said church and enjoying the use thereof according to their rights
and privileges as members thereof."
At a subsequent date -- June 15, 1866 -- the chancellor
delivered an opinion recognizing Avery, Leach, and McNaughtan as
elders, and entered an order that the trustees,
Farley,
Fulton, and Avery, now receivers, open the church for divine
worship and congregational meetings whenever ordered to do so by
the Session of the church, constituted of the said Avery, Hackney,
and McNaughtan,
Leach, Watson, and
Galt, or a
majority thereof.
The execution of this order was apparently so far interfered
with by
Watson, Galt, Fulton, and
Farley as
practically to prevent religious services in the church edifice. At
all events, on the 23d of July, 1866, it was ordered:
"That the MARSHAL OF THIS COURT do take possession of the church
property until the further order of the court, and that the same be
opened: 1. For Sunday schools and other like purposes. 2. For the
meeting of the Session when notified thereof. 3. For public
worship, and such using of the pulpit and the house generally as
the Session shall order. And it is ordered that he be respectful to
the order of the Session, as this court said on the 15th of June.
The Session, according to the decision of the General Assembly, at
Peoria, Illinois, has control of the church buildings &c. The
keys of the church &c., are ordered to be delivered to the
marshal."
The marshal took possession by virtue of this order.
Thenceforward
Watson, Galt, Fulton, and
Farley
abandoned connection with the property and participation in its
control.
Thus matters stood, so far as the church property was concerned,
up to the final decree in
Avery v. Watson, made May 7,
1867, when it was decreed that Leach, Avery, and McNaughtan,
with Hackney,
Watson, and
Galt, were
ruling elders that constituted the Session of the Walnut Street
Church, and the management of the said property for the purpose of
worship and other religious service
was committed to their
care, under the regulations of the Presbyterian Church in the
United States of America, and it was ordered
Page 80 U. S. 687
that the defendants,
Watson and
Galt, pay to
the plaintiffs their costs.
It will be observed that the marshal was not, by the terms of
the decree, directed to give up his possession, nor was any motion
or order afterwards made requiring him to give up or discharging
him as receiver. Nor did he
in fact, so far as appeared
from the record, ever
abandon possession, although the
property continued, as it had been since July 23, 1866, subject to
the exclusive
control of Avery and his associates.
From this final decree an appeal was taken to the Court of
Appeals of Kentucky, but
Watson and his friends did not
supersede that decree nor take other step to prevent its immediate
execution.
The decree of the chancellor was reversed by the Court of
Appeals of Kentucky. [
Footnote
7] The language of the order of reversal was thus:
"And the judgment of the chancellor,
which commits the
management and control of said church property to said Avery,
McNaughtan, and Leach, in conjunction with said
Watson,
Galt, and Hackney, is therefore deemed erroneous. Wherefore
the judgment is reversed and the cause remanded for proper
corrective proceedings respecting the possession, control, and use
of the church property, and for final judgment in conformity to
this opinion."
As to the nature of the issues in this case of
Avery v.
Watson, the Court of Appeals of Kentucky said: [
Footnote 8]
"As suggested in the argument and apparently conceded on both
sides, this is
not a case of
division or schism in a
church, nor
is there any question as to which of TWO
BODIES should be recognized as the Third or Walnut Street
Presbyterian Church; nor is there any controversy as to the
authority of
Watson and
Galt to act as ruling
elders; but the
sole inquiry to which we are
restricted, as we conceive, is whether Avery, McNaughtan,
and Leach are ALSO ruling elders, and therefore members of the
Session of the church. "
Page 80 U. S. 688
On the 21st of February, 1868, the opinion and mandate of the
Court of Appeals was filed in the Louisville Chancery Court, and
the defendants moved the court
"to restore to them, and those entitled under the said opinion,
the possession, use, and control of the church building and
property, which was taken from them by the marshal of the court,
under orders of court, during the pendency of the action, and to
dismiss the plaintiffs' petition with costs."
On the 28th of February, 1868, the complainants in the case of
Avery v. Watson filed a petitioner in equity against the
defendants and moved the court for an injunction
"enjoining them from any further prosecution of their said
motion made on the 21st of February, 1868, and from all proceeding
by motion, suit, or otherwise to obtain possession, control, or use
of the property of the Walnut Street Presbyterian Church of
Louisville."
The petition in equity thus presented averred that subsequent to
the original decree of the chancellor,
Watson, Galt, and the
others adhering to them had voluntarily withdrawn from the
Walnut Street Presbyterian Church, and from the Presbyterian Church
in the United States of America, and had thereby ceased to be
members of the said church or to have any interest in the property
held by that church; that the plaintiffs in that injunction suit,
together with those united in interest with them, constituted at
that time the only beneficiaries of the trust property, and that
therefore the attempt of
Watson and his friends, under a
mere order of
restitution, based upon the reversal by the
appellate court of the chancellor's decree, to obtain the
possession of the property,
as elders and trustees, was a
fraud upon the rights of the beneficiaries of the property. And it
charged that
Watson and his friends intended to use the
property as the property exclusively of their party and to deny the
rights of all others as members.
On the 20th day of March, 1868, the chancellor granted upon this
petition an injunction against the defendants in the action,
enjoining them from any further proceeding on their motion made on
February 21, 1868, the former decree
Page 80 U. S. 689
being at the same time so far reversed that
the original
petition was dismissed and costs awarded to the
defendants.
Watson and his friends now obtained from the Court of
Appeals of Kentucky a summons against the chancellor of the
Louisville Chancery Court "to appear and show cause why he has
refused to carry into effect the mandate of said court," and the
chancellor having appeared, an opinion upon the rule was delivered.
[
Footnote 9]
In the last-named case, it was decided:
1. That the opinion and mandate in the previous decision in the
appellate court, [
Footnote
10] imported a direction to restore to the defendants such
rights of possession, control, and use of the property as the
former judgment had erroneously taken or withheld from them.
2. That "no undecided question was reserved for further
litigation in the court below."
3. That the Chancery Court must enter the proper order directed
by the Court of Appeals, and
"if there be any equitable reason for not coercing the order or
decree for
restitution, it should be made available as a
ground for
enjoining, and not for preventing or modifying,
the
order of restitution."
4. That the petition in equity of Avery and others, although
intended to operate both as a written defense to the action of the
court sought by the defendants in the old suit and at the same time
as the initial pleading in a new one, was to be regarded, so far as
the action of the chancellor was concerned, as a response of the
plaintiffs, interposed to prevent the rendering of a judgment in
conformity to the decision and mandate of this Court.
5. That if any equitable reasons existed for not enforcing
restitution, they should be asserted in a
new suit,
enjoining the enforcement of the order of restitution after such
order had been entered.
Accordingly the Court of Appeals, June 26, 1868, on this rule
against the chancellor, ordered that the latter make an
Page 80 U. S. 690
order
"restoring the possession, use, and control of the church
building and property to the parties entitled thereto
according
to the said opinion, and so far as they were deprived thereof
by the marshal of the Chancery Court under its orders."
The parties in whose favor, according to the opinion, the order
of restitution was to be made were of course
Watson, Galt,
and Hackney, ELDERS, and
Fulton, Farley, and Avery,
TRUSTEES.
After this last decision of the Kentucky Court Appeals, the
petition for injunction filed in the Louisville Chancery Court on
the 28th of February, 1868, was, on
the motion of those who
filed it, dismissed without prejudice.
The present suit in the circuit court was begun July 17th,
1868.
Subsequently, on the 18th of September, 1868, the
chancellor directed the marshal of the Chancery Court
"to restore the possession, use, and control of the church
building and property . . . to
Farley, Fulton, and Avery,
or a majority of them,
as trustees, and to
Watson,
Galt, and Hackney, or a majority of them, as
ruling
elders of the said church, and to report how he had executed
the order,"
reserving the case for such further order as might be necessary
to enforce full obedience.
Thus far as to the controversy in the Walnut Street Church,
involved in the particular case of
Watson v. Avery in the
state courts of Kentucky.
We have already adverted to the war of the insurrection, its
action on the subject of slavery, and the feeling engendered by
this action in the special congregation of the Walnut Street
Church.
We now speak of the same subject of the war, of slavery &c.,
in its more general relation with the judicatories above that local
church, and of the way in which this local church was affected by
and identified itself with the action of the more general church.
From the beginning of the war to its close, the General Assembly of
the Presbyterian Church, at its annual meetings, expressed in
Declaratory Statements
Page 80 U. S. 691
or Resolutions, its sense of the obligation of all good citizens
to support the federal government in that struggle, and when, by
the proclamation of President Lincoln, emancipation of the slaves
of the states in insurrection was announced, that body also
expressed views favorable to emancipation and adverse to the
institution of slavery. At its meeting in Pittsburg in May, 1865,
instructions were given to the Presbyteries, the Board of Missions,
and to the Sessions of the churches that when any person from the
southern states should make application for employment as
missionary or for admission as members or ministers of churches,
inquiry should be made as to their sentiments in regard to loyalty
to the government and on the subject of slavery, and if it was
found that they had been guilty of voluntarily aiding the war of
the rebellion or held the doctrine announced by the large body of
the churches in the insurrectionary states which had organized a
new general assembly, that
"the system of negro slavery in the South is a divine
institution, and that it is the peculiar mission of the Southern
church to conserve that institution,"
they should be required to repent and forsake these sins before
they could be received.
In the month of September thereafter, the Presbytery of
Louisville, under whose immediate jurisdiction was the Walnut
Street Church, adopted and published in pamphlet form what it
called
"
A Declaration and Testimony against the erroneous and
heretical doctrines and practices which have obtained and been
propagated in the Presbyterian Church of the United States during
the last five years."
This Declaration denounced in the severest terms the action of
the General Assembly in the matters we have just mentioned,
declared an intention to refuse to be governed by that action, and
invited the cooperation of all members of the Presbyterian Church
who shared the sentiments of the Declaration, in a concerted
resistance to what they called "the usurpation of authority" by the
Assembly.
The General Assembly of 1866, denounced in turn the Declaration
and Testimony, and declared that every Presbytery
Page 80 U. S. 692
which refused to obey its order should be
ipso facto
dissolved and called to answer before the next General Assembly,
giving the Louisville Presbytery an opportunity for repentance and
conformity. The Louisville Presbytery divided, and the adherents of
the Declaration and Testimony sought and obtained admission, in
1868, into "the Presbyterian Church of the Confederate States," a
body which had several years previously withdrawn from the General
Assembly of the United States and set up a new organization.
In January, 1866, the congregation of the Walnut Street Church
became divided in the manner stated above, each asserting that
it constituted the church, although the issue as to
membership was not distinctly made in the chancery suit of
Avery v. Watson already so fully described. Both parties
at this time recognized the same superior church judicatories.
On the 19th June, 1866, the Synod of Kentucky became divided,
the opposing party in each asserting respectively that
it
constituted the true Presbytery and the true Synod, each meanwhile
recognizing and professing to adhere to the same General Assembly.
Of these contesting bodies,
Watson and his party adhered
to one, those whom he opposed to the other. The Presbytery and
Synod to which these last -- that is to say, Avery or Hackney and
his party, adhered being known respectively as the McMillan
Presbytery and the Lapsley Synod.
On the 1st of June, 1867, the Presbytery and Synod recognized by
Watson and his party were declared by the General Assembly
to be
"in no sense a true and lawful Synod and Presbytery in
connection with and under the care and authority of the General
Assembly of the Presbyterian Church in the United States of
America,"
and were permanently excluded from connection with or
representation in the Assembly. By the same resolution, the Synod
and Presbytery adhered to by those whom
Watson and his
party opposed were declared to be the true and lawful
Presbytery of Louisville and Synod of Kentucky.
Page 80 U. S. 693
The Synod of Kentucky thus excluded, by a resolution adopted the
28th June, 1867, declared
"That in its future action, it will be governed by this
recognized sundering of all its relations to the aforesaid
revolutionary body (the General Assembly) by the acts of that body
itself."
The Presbytery took substantially the same action.
In this final severance of Presbytery and Synod from the General
Assembly,
Watson and his friends, on the one side, and
those whom he opposed, on the other, continued to adhere to those
bodies at first recognized by them respectively. This latter party
now included, among many others, a certain William Jones, with his
wife, and one Eleanor Lee, who had been admitted into membership by
the Hackney &c., Session.
The reader will now readily perceive, if he have not done so
before, how in the earliest stages of this controversy it was found
that a majority of the members of the Walnut Street Church
concurred with the action of the General Assembly, while
Watson and
Galt as ruling elders, and
Fulton and
Farley as trustees, constituting in
each case a majority of the Session and of the trustees, with
Mr. McElroy, the pastor, sympathized with the party of the
Declaration and Testimony of the Louisville Presbytery. And how
this led to efforts by each party to exclude the other from
participation in the Session of the church and the use of the
church property, as well as to all that followed.
The grounds on which the Court of Appeals reversed the
chancellor's decision were, of course, that the General Assembly,
Synod, and Presbytery of the Presbyterian Church were all subject,
in the exercise of their functions, to Constitutions (the standards
mentioned at the beginning of this report); that when they violated
these, their acts were beyond their jurisdiction and void; that
whether they had violated them or not was a matter which the civil
courts, on an examination of the Constitutions, could properly pass
on, and deciding further and finally as fact, after an examination
by the court itself of these standards, that in their Declaratory
Statements and Resolutions and other
Page 80 U. S. 694
deliverances enforcing loyalty, they had violated them, and that
their acts were accordingly void.
Thus things stood in July, 1868, and the term for which the old
trustees had in more peaceful times been elected having expired,
the persons worshipping in the Walnut Street Church and so in
possession, elected as new ones three persons whose names now first
figure on our report. These persons were named McDougall,
McPherson, and Ashcraft.
The newly elected elders and the majority of the congregation
adhered to and had been recognized by the General Assembly as the
regular and lawful Walnut Street Church and officers.
Galt
and
Watson, Fulton and
Farley, and a minority of
the members, had cast their fortunes with those who adhered to the
party of the Declaration and Testimony.
In this state of things, Jones, his wife, and Lee,
on the
21st July, 1868, three months before the mandate of September 18 to
the Chancery Court, mentioned at page
80 U. S. 690,
filed a bill in chancery in the Circuit Court of the United States
for the District of Kentucky against
Watson and
Galt, [
Footnote 11]
Fulton, Farley, [
Footnote 12] and Avery, the church corporation, and
McDougall, McPherson, and Ashcraft, as trustees. The complainants
alleged that they were citizens of Indiana and that each of the
natural persons already named were residents of Louisville and
citizens of Kentucky, and that the church corporation was a
corporation created by Kentucky and doing business in that state.
They alleged further that they were members in good and regular
standing of the said church, attending its religious exercises
under the pastorship of the Rev. J. S. Hays, and that the
defendants,
Fulton and
Farley, who pretended
without right to be trustees of the church, supported and
recognized as such by the defendants,
Watson and
Galt, who also pretended without right to be ruling
elders, were threatening, preparing, and about to take unlawful
possession
Page 80 U. S. 695
of the house of worship and grounds belonging to the church and
to prevent Hays, who was the rightful pastor, from ministering
therein, refusing to recognize him as pastor, and to recognize as
ruling elder, Hackney, who was the sole lawful ruling elder, and
that when they should obtain such possession, they would oust Hays
and Hackney and those who attended their ministrations, among whom
the complainants represented themselves to be.
They further alleged that Hackney, whose duty it was as elder,
and McDougall, McPherson, and Ashcraft, whose duty it was as
trustees to protect the rights thus threatened, by such a
proceeding in the courts as would prevent the execution of the
threats and designs of the other defendants, refused to take any
steps to that end.
They further alleged that the Walnut Street Church, of which
they were members, now formed and had ever since its organization
in the year 1842 formed a part of the Presbyterian Church of the
United States of America, known as the Old School, which was
governed by a written constitution that included the Confession of
Faith, Form of Government, Book of Discipline, and Directory for
Worship, and that the governing bodies of the general church above
the Walnut Street Church were, in successive order, the Presbytery
of Louisville, the Synod of Kentucky, and the General Assembly of
the Presbyterian Church of the United States; that while the
complainants and about 115 members who worshipped with them, and
Mr. Hays (the pastor), Hackney (the ruling elder), and McDougall,
McPherson, and Ashcraft (the trustees), were now in full membership
and relation with the lawful General Presbyterian Church aforesaid,
Watson and
Galt, Fulton and
Farley, with
about 30 persons formerly members of the said church, worshipping
under one
Dr. Yandell as pastor, had seceded and withdrawn
themselves from the Walnut Street Church and from the General
Presbyterian Church in the United States, and had voluntarily
connected themselves with and were now members of another religious
society, and that they had repudiated and did now repudiate and
renounce the authority
Page 80 U. S. 696
and jurisdiction of the various judicatories of the Presbyterian
Church of the United States and acknowledge and recognize the
authority of other church judicatories which were disconnected from
the Presbyterian Church of the United States and from the Walnut
Street Church. And they alleged that
Watson and
Galt had been, by the order of the General Assembly of the
said church, dropped from the roll of elders in said church for
having so withdrawn and renounced its jurisdiction, and that the
Assembly had declared the organization to which the plaintiffs
adhered as the true and only Walnut Street Presbyterian Church of
Louisville.
The prayer of the bill was that
"
Watson, Galt, Fulton, and
Farley be
restrained by an injunction issuing out of the circuit court from
taking or attempting to take possession of the house of worship and
other property of the Walnut Street Church, and from interfering
with REV. J. S. HAYS PREACHING IN SAID HOUSE OF WORSHIP; also that
Watson and
Galt be restrained in like manner from
controlling or attempting to control or manage the said property in
the capacity of elders of the church; also that
Fulton and
Farley be restrained in like manner from controlling or
attempting to control or manage the said property as trustees of
said church . . . and that the complainants have generally
such
other and further relief as the nature of their case
required."
The answer having alleged that, pending the final process in the
Chancery Court, two persons, named Heeter and Given, had been
elected additional ruling elders, and that one Polk had been
elected trustee in the place of Avery, the complainants amended
their bill accordingly, and by agreement the answer of the original
defendants was made the answer of the new parties.
The defendants, Hackney, McDougall, McPherson, and Ashcraft
answered, admitting the allegations of the bill and that though
requested they had refused to prosecute legal proceedings in the
matter, because as they thought any effort to that end in the
courts of the State of Kentucky would prove useless.
Page 80 U. S. 697
The defendants
Watson and
Galt, Fulton and
Farley, answered, and after declaring their belief that
the complainants were lately citizens of Kentucky and that their
citizenship in Indiana was merely for the purpose of filing this
bill in the federal court, denied almost every allegation of the
bill. They set up that though they had been deprived of their
former actual possession of the church edifice and property by the
illegal and now overruled decree of the Louisville Chancery Court,
they had nevertheless maintained and kept up a regular and valid
organization of the Walnut Street Presbyterian Church -- the only
regular and valid organization that had been kept up; that they
were the lawful officers of that church, and that they and those
whom they represented were its true members. They denied having
withdrawn from either the local or the general church, and denied
that the action of the General Assembly cutting them off was within
its constitutional authority. They represented that the plaintiffs
were not and never had been lawfully admitted to membership in the
Walnut Street Church, and had no such interest in it as would
sustain this suit, and they set up and relied upon the suit in the
Chancery Court of Louisville, which they represented was still
pending and which they stated involved the same subject matter and
was between the same parties in interest as the present one. They
alleged that in that suit, they had been decreed to be the only
true and lawful trustees and elders of the Walnut Street Church,
and that an order had been made to place them in possession of the
church property which order remained unexecuted, and that the
property was still in the possession of the marshal of that court
as its receiver. These facts were relied on in bar to the present
suit.
The case coming on to be heard, the circuit court declared that
it seemed to it that the complainants were members of the Third or
Walnut Street Presbyterian Church in Louisville, and as such had a
beneficial interest in the church building and other property in
the pleadings mentioned.
That the Reverend J. S. Hays was pastor; Hackney, Avery,
McNaughtan, and Leach, ruling elders, and McDougall,
Page 80 U. S. 698
McPherson, and Ashcraft, trustees, and that they were
respectively entitled to exercise whatever authority in the said
church, or over its members or property, rightfully belonged to
pastor, elders, and trustees, respectively, in churches in
connection with "The Presbyterian Church in the United States of
America," Old School, and according to the regulations and usages
of that church.
That McDougall, McPherson, and Ashcraft, trustees, were in
regular succession from the trustees named in the deed of
conveyance of the church property in 1853, and likewise in regular
succession from the trustees named in the act of incorporation, and
that as such trustees they were entitled to the exclusive control
of the church building and other property of said church for the
purposes of worship by the members of the said church, in
accordance with the regulations and usages of the Presbyterian
Church in the United States.
That those only were to be recognized as members of the Walnut
Street Church who adhered to and recognized the authority of the
Presbyterian Church in the United States of America and the various
church judicatories which submit to its jurisdiction, and in
determining what was the true Presbytery of Louisville, and true
Synod of Kentucky, having jurisdiction over the said Walnut Street
Presbyterian Church, its officers and members,
this Court and
all other civil tribunals were concluded by the action of the
General Assembly of said Presbyterian Church in the United States
of America.
That those members of the Walnut Street Church who worshipped
statedly at the church edifice [position in the city of Louisville
described], in said city, who had as their pastor the Reverend J.
S. Hays, and who recognized Hackney, Avery, Leach, and McNaughtan
as ruling elders, and McDougall and McPherson as trustees,
including all those connected with them, who had been received into
said church since January 1, 1866, under Hackney, Avery, Leach, and
McNaughtan as elders, or under the ministration of Hays as pastor,
constituted the Third or Walnut Street Presbyterian Church in
Louisville, and the sole beneficiaries
Page 80 U. S. 699
for whose use the property mentioned in the pleadings was
dedicated, and that the said persons, together with their pastor,
elders, and trustees, had the exclusive right to use the same
according to the regulations and usages of the Presbyterian Church
of the United States of America.
It seemed further to the court that the
Rev. Dr.
Yandell was not pastor of the said Third or Walnut Street
Presbyterian Church, nor were
Galt, Watson, Heeter, and
Given, or either of them, elders in the said church. And
that
Fulton, Farley, and
Polk were not
trustees.
That all those persons who pretended to be members of the said
church, but who did not recognize Hays as pastor, or Hackney,
Avery, Leach, and McNaughtan as elders, or McDougall, McPherson,
and Ashcraft as trustees, and who recognized
Watson, Galt,
Given, and
Heeter as elders, and
Fulton,
Farley, and
Polk as trustees, and worshipped
separately and apart from those hereinbefore declared to be the
sole beneficiaries of said property, and who denied the authority
of Hays as pastor, and also the ecclesiastical authority of the
McMillan Presbytery of Louisville and of the Lapsley Synod of
Kentucky, did not have any connection with, nor were they members
of, the Third or Walnut Street Presbyterian Church, for whose use
the property in question was conveyed and dedicated, nor had the
said persons, or any of them, any beneficial interest in it, nor
were they entitled to the use of it in any way whatever as members
of the said church.
It was thereupon decreed:
1st. That the defendants,
Heeter, Given, and
Polk be enjoined from taking possession of and from using
or controlling the church edifice and other property of the Walnut
Street Church except as they or any one of them may choose to
attend religious worship or other religious exercises in the same
manner as other persons not officers or members of said church.
2d. That the defendants
Watson, Galt, Fulton, Heeter, Given,
Polk, Farley and all others be enjoined from so using or
controlling the said church edifice or other property of the
Page 80 U. S. 700
church, as in any wise to interfere with the ministrations
therein of Hays as pastor or with the exercise by him and by
Hackney and others, recognized as elders in the said church by
those herein declared to be sold beneficiaries of said property, of
any authority in the said church or over its property or members
which rightfully belongs to the pastors and elders of the churches
in connection with and according to the usages of the Presbyterian
Church of the United States of America.
3d. That the defendants
Watson, Galt, Heeter, Given, Fulton,
Farley and
Polk and all others be enjoined from using
or controlling the church edifice and property in any other manner
than as the property exclusively of the persons hereinbefore
declared to be the Third or Walnut Street Presbyterian Church of
Louisville and the sole beneficiaries of said property, having Hays
as pastor, and recognizing Hackney, Avery, Leach, and McNaughtan as
elders, and McDougall, McPherson, and Ashcraft as trustees. And
that they and all others be enjoined from interfering in any manner
with the use of the said property by the members of the said church
hereinbefore declared to be such and by such as might be hereafter
admitted into said church according to its forms, and who are or
might become connected with and under the care and authority of the
General Assembly of the Presbyterian Church in the United States of
America and the several judicatories which submit to the authority
of said Assembly, and from hindering or preventing anyone from
worshipping in said church or participating in any of its religious
exercises according to the usages of said church.
From this decree,
Watson and the other defendants
appealed.
Page 80 U. S. 713
MR. JUSTICE MILLER now delivered the opinion of the Court.
This case belongs to a class, happily rare in our courts, in
which one of the parties to a controversy essentially
ecclesiastical resorts to the judicial tribunals of the state for
the maintenance of rights which the church has refused to
acknowledge or found itself unable to protect. Much as such
dissensions among the members of a religious society should
Page 80 U. S. 714
be regretted, a regret which is increased when passing from the
control of the judicial and legislative bodies of the entire
organization to which the society belongs, an appeal is made to the
secular authority; the courts, when so called on, must perform
their functions as in other cases.
Religious organizations come before us in the same attitude as
other voluntary associations for benevolent or charitable purposes,
and their rights of property or of contract are equally under the
protection of the law and the actions of their members subject to
its restraints. Conscious as we may be of the excited feeling
engendered by this controversy and of the extent to which it has
agitated the intelligent and pious body of Christians in whose
bosom it originated, we enter upon its consideration with the
satisfaction of knowing that the principles on which we are to
decide so much of it as is proper for our decision are those
applicable alike to all of its class, and that our duty is the
simple one of applying those principles to the facts before us.
The first of the points arising in the case concerns the
jurisdiction of the circuit court, which is denied first on the
ground that the plaintiffs have no such interest in the subject of
litigation as will enable them to maintain the suit, and secondly
on matters arising out of the alleged proceedings in the suit in
the Chancery Court of Louisville.
The allegation that the plaintiffs are not lawful members of the
Walnut Street Church is based upon the assumption that their
admission as members was by a pastor and elders who had no lawful
authority to act as such. As the claim of those elders to be such
is one of the matters which this bill is brought to establish and
the denial of which makes an issue to be tried, it is obvious that
the objection to the interest of the plaintiffs must stand or fall
with the decision on the merits, and cannot be decided as a
preliminary question. Their right to have this question decided, if
there is no other objection to the jurisdiction, cannot be doubted.
Some attempt is made in the answer to question the good faith of
their citizenship, but this seems to have been abandoned in the
argument.
Page 80 U. S. 715
In regard to the suit in the Chancery Court of Louisville which
the defendants allege to be pending, there can be no doubt but that
that court is one competent to entertain jurisdiction of all the
matters set up in the present suit. As to those matters and to the
parties, it is a court of concurrent jurisdiction with the circuit
court of the United States, and as between those courts the rule is
applicable that the one which has first obtained jurisdiction in a
given case must retain it exclusively until it disposes of it by a
final judgment or decree.
But when the pendency of such a suit is set up to defeat
another, the
case must be the same. There must be the same
parties, or at least such as represent the same interest, there
must be the same rights asserted, and the same relief prayed for.
This relief must be founded on the same facts, and the title or
essential basis of the relief sought must be the same. The identity
in these particulars should be such that if the pending case had
already been disposed of, it could be pleaded in bar as a former
adjudication of the same matter between the same parties.
In the case of
Barrows v. Kindred, [
Footnote 13] which was an action of
ejectment, the plaintiff showed a good title to the land, and the
defendant relied on a former judgment in his favor between the same
parties for the same land, the statute of Illinois making a
judgment in such an action as conclusive as in other personal
actions except by way of new trial. But this Court held that as in
the second suit the plaintiff introduced and relied upon a new and
different title acquired since the first trial, that judgment could
be no bar, because that title had not been passed upon by the court
in the first suit.
But the principles which should govern in regard to the identity
of the matters in issue in the two suits to make the pendency of
the one defeat the other, are as fully discussed, in the case of
Buck v. Colbath, [
Footnote 14] where that was the main question, as in any
case we have been able to find. It was
Page 80 U. S. 716
an action of trespass brought in a state court against the
marshal of the circuit court of the United States for seizing
property of the plaintiff, under a writ of attachment from the
circuit court. And it was brought while the suit in the federal
court was still pending, and while the marshal held the property
subject to its judgment. So far as the
lis pendens and
possession of the property in one court and a suit brought for the
taking by its officer in another are concerned, the analogy to the
present case is very strong. In that case, the Court said:
"It is not true that a court, having obtained jurisdiction of a
subject matter of suit and of parties before it, thereby excludes
all other courts from the right to adjudicate upon other matters
having a very close connection with those before the first court,
and in some instances requiring the decision of the same question
exactly. In examining into the exclusive character of the
jurisdiction in such cases, we must have regard to the nature of
the remedies, the character of the relief sought, and the identity
of the parties in the different suits."
And, it might have been added, to the facts on which the claim
for relief is founded. "A party," says the Court by way of
example,
"having notes secured by a mortgage on real estate, may, unless
restrained by statute, sue in a court of chancery to foreclose his
mortgage and in a court of law to recover a judgment on his notes,
and in another court of law in an action of ejectment for
possession of the land. Here, in all the suits, the only question
at issue may be the existence of the debt secured by the mortgage.
But, as the relief sought is different and the mode of proceeding
different, the jurisdiction of neither court is affected by the
proceedings in the other."
This opinion contains a critical review of the cases in this
Court of
Hagan v. Lucas, [
Footnote 15]
Peck v. Jenness, [
Footnote 16]
Taylor v. Carryl,
[
Footnote 17] and
Freeman v. Howe, [
Footnote 18] cited and relied on by counsel for the
appellants, and we are satisfied that it states the doctrine
correctly.
The limits which necessity assigns to this opinion forbid
Page 80 U. S. 717
our giving at length, the pleadings in the case in the
Louisville Chancery Court. But we cannot better state what is and
what is not the subject matter of that suit or controversy as thus
presented and as shown throughout its course than by adopting the
language of the Court of Appeals of Kentucky in its opinion
delivered at the decision of that suit in favor of the present
appellants. "As suggested in argument," says the court,
"and apparently conceded on both sides, this is not a case of
division or schism in a church, nor is there any question as to
which of two bodies should be recognized as the Third or Walnut
Street Presbyterian Church. Neither is there any controversy as to
the authority of Watson and Galt to act as ruling elders; but the
sole inquiry to which we are restricted in our opinion is whether
Avery, McNaughtan, and Leach are also ruling elders, and therefore
members of the session of the church."
The pleadings in the present suit show conclusively a different
state of facts, different issues, and a different relief sought.
This
is a case of a division or schism in the church. It
is a question as to which of two bodies shall be recognized as the
Third or Walnut Street Presbyterian Church. There is a controversy
as to the authority of Watson and Galt to act as ruling elders,
that authority being denied in the bill of the complainants, and,
so far from the claim of Avery, McNaughtan, and Leach to be ruling
elders being the sole inquiry in this case, it is a very
subordinate matter, and it depends upon facts and circumstances
altogether different from those set up and relied on in the other
suit and which did not exist when it was brought. The issue here is
no longer a mere question of eldership, but it is a separation of
the original church members and officers into two distinct bodies,
with distinct members and officers, each claiming to be the true
Walnut Street Presbyterian Church and denying the right of the
other to any such claim. This brief statement of the issues in the
two suits leaves no room for argument to show that the pendency of
the first cannot be pleaded either in bar or in abatement of the
second.
The supplementary petition filed by the plaintiffs in that
Page 80 U. S. 718
case, after the decree of the Chancery Court had been reversed
on appeal, and which did contain very much the same matter found in
the present bill, was, on motion of the plaintiffs' counsel, and by
order of the court, dismissed, without prejudice, before this suit
was brought, and of course was not a
lis pendens at that
time.
It is contended, however, that the delivery to the trustees and
elders of the body of which the plaintiffs are members of the
possession of the church building cannot be granted in this suit,
nor can the defendants be enjoined from taking possession as prayed
in the bill, because the property is in the actual possession of
the Marshal of the Louisville Chancery Court as its receiver, and
because there is an unexecuted decree of that court ordering the
marshal to deliver the possession to defendants.
In this, the counsel for the appellants are in our opinion
sustained, both by the law and by the state of the record of the
suit in that court.
The court, in the progress of that suit, made several orders
concerning the use of the church, and finally placed it in the
possession of the marshal as a receiver, and there is no order
discharging his receivership, nor does it seem to us that there is
any valid order finally disposing of the case, so that it can be
said to be no longer in that court. For though the Chancery Court
did, on the 20th March, 1868, after the reversal of the case in the
Court of Appeals, enter an order reversing its former decree and
dismissing the bill, with costs, in favor of the defendants, the
latter, on application to the appellate court, obtained another
order dated June 26. By this order or mandate to the Chancery
Court, it was directed to render a judgment in conformity to the
opinion and mandate of the court restoring possession, use, and
control of the church property to the parties entitled thereto
according to said opinion and so far as they were deprived thereof
by the marshal of the Chancery Court under its order.
In obedience to this mandate, the Chancery Court, on the 18th
September, three months after the commencement of
Page 80 U. S. 719
this suit, made an order that the marshal restore the
possession, use, and control of the church building to Henry
Farley, George Fulton, B. F. Avery, or a majority of them, as
trustees, and to John Watson, Joseph Galt, and T. J. Hackney, or a
majority of them, as ruling elders, and to report how he had
executed the order, and reserving the case for such further order
as might be necessary to enforce full obedience.
It is argued here by counsel for the appellees that the case was
in effect disposed of by the orders of the Chancery Court, and that
nothing remained to be done which could have any practical
operation on the rights of the parties.
But if the Court of Appeals, in reversing the decree of the
chancellor in favor of the plaintiffs, was of opinion that the
defendants should be restored to the position they occupied in
regard to the possession and control of the property before that
suit began, we have no doubt of their right to make such order as
was necessary to effect that object, and as the proper mode of
doing this was by directing the chancellor to make the necessary
order and have it enforced as chancery decrees are enforced in his
Court, we are of opinion that the order of the Court of Appeals
above recited was in essence and effect a decree in that cause for
such restoration, and that the last order of the Chancery Court,
made in accordance with it, is a valid subsisting decree which,
though final, is unexecuted.
The decisions of this Court in the cases of
Taylor v.
Carryl [
Footnote 19]
and
Freeman v. Howe [
Footnote 20] and
Buck v. Colbath, [
Footnote 21] are conclusive that the
marshal of the Chancery Court cannot be displaced as to the mere
actual possession of the property, because that might lead to a
personal conflict between the officers of the two courts for that
possession. And the Act of Congress of March 2, 1793, [
Footnote 22] as construed in the
cases of
Diggs v. Wolcott, [
Footnote 23] and
Peck v. Jenness, [
Footnote 24] are equally conclusive
against any injunction from the circuit court forbidding the
defendants
Page 80 U. S. 720
to take the possession which the unexecuted decree of the
Chancery Court requires the marshal to deliver to them.
But though the prayer of the bill in this suit does ask for an
injunction to restrain Watson, Galt, Fulton, and Farley from taking
possession, it also prays such other and further relief as the
nature of the case requires, and especially that said defendants be
restrained from interfering with Hays, as pastor, and plaintiffs in
worshipping in said church. Under this prayer for general relief,
if there was any decree which the circuit court could render for
the protection of the right of the plaintiffs, and which did not
enjoin the defendants from taking possession of the church
property, and which did not disturb the possession of the marshal
of the Louisville chancery, that court had a right to hear the case
and grant that relief. This leads us to inquire what is the nature
and character of the possession to which those parties are to be
restored.
One or two propositions which seem to admit of no controversy
are proper to be noticed in this connection.
1. Both by the act of the Kentucky Legislature creating the
trustees of the church a body corporate and by the acknowledged
rules of the Presbyterian Church, the trustees were the mere
nominal title holders and custodians of the church property, and
other trustees were or could be elected by the congregation to
supply their places once in every two years.
2. That in the use of the property for all religious services or
ecclesiastical purposes, the trustees were under the control of the
church session.
3. That by the constitution of all Presbyterian churches, the
session, which is the governing body in each, is composed of the
ruling elders and pastor, and in all business of the session the
majority of its members govern, the number of elders for each
congregation being variable.
The trustees obviously hold possession for the use of the
persons who by the constitution, usages, and laws of the
Presbyterian body, are entitled to that use. They are liable to
removal by the congregation for whom they hold this trust, and
others may be substituted in their places. They
Page 80 U. S. 721
have no personal ownership or right beyond this, and are subject
in their official relations to the property to the control of the
session of the church.
The possession of the elders, though accompanied with larger and
more efficient powers of control, is still a fiduciary possession.
It is as a session of the church alone that they could exercise
power. Except by an order of the session in regular meeting, they
have no right to make any order concerning the use of the building,
and any action of the session is necessarily in the character of
representatives of the church body by whose members it was
elected.
If, then, this true body of the church, the members of that
congregation, having rights of user in the building, have in a mode
which is authorized by the canons of the general church in this
country elected and installed other elders, it does not seem to us
inconsistent or at variance with the nature of the possession which
we have described, and which the Chancery Court orders to be
restored to the defendants, that they should be compelled to
recognize these rights and permit those who are the real
beneficiaries of the trust held by them to enjoy the uses to
protect which that trust was created. Undoubtedly if the order of
the Chancery Court had been executed, and the marshal had delivered
the key of the church to the defendants and placed them in the same
position they were in before that suit was commenced, they could,
in any court having jurisdiction and in a case properly made out,
be compelled to respect the rights we have stated and be controlled
in their use of the possession by the court so far as to secure
those rights.
All that we have said in regard to the possession which the
marshal is directed to deliver to the defendants is equally
applicable to the possession held by him pending the execution of
that order. His possession is a substitute for theirs, and the
order under which he received that possession, which we have
recited, shows this very clearly.
The decree which we are now reviewing seems to us to be
carefully framed on this view of the matter. While the rights of
the plaintiffs and those whom they sue for are admitted
Page 80 U. S. 722
and established, the defendants are still recognized as entitled
to the possession which we have described, and while they are not
enjoined from receiving that possession from the marshal and he is
not restrained from obeying the Chancery Court by delivering it,
and while there is no order made on the marshal at all to interfere
with his possession, the defendants are required by the decree to
respect the rights of the plaintiffs and to so use the possession
and control to which they may be restored as not to hinder or
obstruct the true uses of the trust, which that possession is
intended to protect.
We are next to inquire whether the decree thus rendered is based
upon an equally just view of the law as applied to the facts of
this controversy.
The questions which have come before the civil courts concerning
the rights to property held by ecclesiastical bodies may, so far as
we have been able to examine them, be profitably classified under
three general heads, which of course do not include cases governed
by considerations applicable to a church established and supported
by law as the religion of the state.
1. The first of these is when the property which is the subject
of controversy has been, by the deed or will of the donor or other
instrument by which the property is held by the express terms of
the instrument devoted to the teaching, support, or spread of some
specific form of religious doctrine or belief.
2. The second is when the property is held by a religious
congregation which, by the nature of its organization, is strictly
independent of other ecclesiastical associations, and, so far as
church government is concerned, owes no fealty or obligation to any
higher authority.
3. The third is where the religious congregation or
ecclesiastical body holding the property is but a subordinate
member of some general church organization in which there are
superior ecclesiastical tribunals with a general and ultimate power
of control, more or less complete, in some supreme
Page 80 U. S. 723
judicatory over the whole membership of that general
organization.
In regard to the first of these classes, it seems hardly to
admit of a rational doubt that an individual or an association of
individuals may dedicate property by way of trust to the purpose of
sustaining, supporting, and propagating definite religious
doctrines or principles, provided that in doing so they violate no
law of morality and give to the instrument by which their purpose
is evidenced the formalities which the laws require. And it would
seem also to be the obvious duty of the court, in a case properly
made, to see that the property so dedicated is not diverted from
the trust which is thus attached to its use. So long as there are
persons qualified within the meaning of the original dedication,
and who are also willing to teach the doctrines or principles
prescribed in the act of dedication, and so long as there is anyone
so interested in the execution of the trust as to have a standing
in court, it must be that they can prevent the diversion of the
property or fund to other and different uses. This is the general
doctrine of courts of equity as to charities, and it seems equally
applicable to ecclesiastical matters.
In such case, if the trust is confided to a religious
congregation of the independent or congregational form of church
government, it is not in the power of the majority of that
congregation, however preponderant, by reason of a change of views
on religious subjects to carry the property so confided to them to
the support of new and conflicting doctrine. A pious man building
and dedicating a house of worship to the sole and exclusive use of
those who believe in the doctrine of the Holy Trinity, and placing
it under the control of a congregation which at the time holds the
same belief, has a right to expect that the law will prevent that
property from being used as a means of support and dissemination of
the Unitarian doctrine and as a place of Unitarian worship. Nor is
the principle varied when the organization to which the trust is
confided is of the second or associated form of church government.
The protection which the law
Page 80 U. S. 724
throws around the trust is the same. And though the task may be
a delicate one and a difficult one, it will be the duty of the
court in such cases, when the doctrine to be taught or the form of
worship to be used is definitely and clearly laid down, to inquire
whether the party accused of violating the trust is holding or
teaching a different doctrine, or using a form of worship which is
so far variant as to defeat the declared objects of the trust. In
the leading case on this subject in the English courts of the
Attorney General v. Pearson, [
Footnote 25] Lord Eldon said,
"I agree with the defendants that the religious belief of the
parties is irrelevant to the matters in dispute, except so far as
the King's Court is called upon to execute the trust."
That was a case in which the trust deed declared the house which
was erected under it was for the worship and service of God. And
though we may not be satisfied with the very artificial and
elaborate argument by which the chancellor arrives at the
conclusion, that because any other view of the nature of the
Godhead than the Trinitarian view was heresy by the laws of
England, and anyone giving expression to the Unitarian view was
liable to be severely punished for heresy by the secular courts, at
the time the deed was made, that the trust was therefore for
Trinitarian worship, we may still accept the statement that the
court has the right to enforce a trust clearly defined on such a
subject.
The case of
Miller v. Gable [
Footnote 26] appears to have been decided in the Court
of Errors of New York on this principle, so far as any ground of
decision can be gathered from the opinions of the majority of the
court as reported.
The second class of cases which we have described has reference
to the case of a church of a strictly congregational or independent
organization, governed solely within itself, either by a majority
of its members or by such other local organism as it may have
instituted for the purpose of ecclesiastical government, and to
property held by such a church, either by way of purchase or
donation, with no other specific
Page 80 U. S. 725
trust attached to it in the hands of the church than that it is
for the use of that congregation as a religious society.
In such cases where there is a schism which leads to a
separation into distinct and conflicting bodies, the rights of such
bodies to the use of the property must be determined by the
ordinary principles which govern voluntary associations. If the
principle of government in such cases is that the majority rules,
then the numerical majority of members must control the right to
the use of the property. If there be within the congregation
officers in whom are vested the powers of such control, then those
who adhere to the acknowledged organism by which the body is
governed are entitled to the use of the property. The minority, in
choosing to separate themselves into a distinct body and refusing
to recognize the authority of the governing body, can claim no
rights in the property from the fact that they had once been
members of the church or congregation. This ruling admits of no
inquiry into the existing religious opinions of those who comprise
the legal or regular organization, for if such was permitted, a
very small minority, without any officers of the church among them,
might be found to be the only faithful supporters of the religious
dogmas of the founders of the church. There being no such trust
imposed upon the property when purchased or given, the court will
not imply one for the purpose of expelling from its use those who
by regular succession and order constitute the church because they
may have changed in some respect their views of religious
truth.
Of the cases in which this doctrine is applied, no better
representative can be found than that of
Shannon v. Frost,
[
Footnote 27] where the
principle is ably supported by the learned Chief Justice of the
Court of Appeals of Kentucky.
The case of
Smith v. Nelson, [
Footnote 28] asserts this doctrine in a case where a
legacy was left to the Associate Congregation of Ryegate, the
interest whereof was to be annually paid to their minister forever.
In that case, though the Ryegate
Page 80 U. S. 726
congregation was one of a number of Presbyterian churches
connected with the general Presbyterian body at large, the court
held that the only inquiry was whether the society still exists and
whether they have a minister chosen and appointed by the majority
and regularly ordained over the society agreeably to the usage of
that denomination. And though we may be of opinion that the
doctrine of that case needs modification so far as it discusses the
relation of the Ryegate congregation to the other judicatories of
the body to which it belongs, it certainly lays down the principle
correctly if that congregation was to be treated as an independent
one.
But the third of these classes of cases is the one which is
oftenest found in the courts and which, with reference to the
number and difficulty of the questions involved and to other
considerations, is every way the most important.
It is the case of property acquired in any of the usual modes
for the general use of a religious congregation which is itself
part of a large and general organization of some religious
denomination with which it is more or less intimately connected by
religious views and ecclesiastical government.
The case before us is one of this class, growing out of a schism
which has divided the congregation and its officers, and the
presbytery and synod, and which appeals to the courts to determine
the right to the use of the property so acquired. Here is no case
of property devoted forever by the instrument which conveyed it, or
by any specific declaration of its owner, to the support of any
special religious dogmas or any peculiar form of worship, but of
property purchased for the use of a religious congregation, and so
long as any existing religious congregation can be ascertained to
be that congregation or its regular and legitimate successor, it is
entitled to the use of the property. In the case of an independent
congregation, we have pointed out how this identity or succession
is to be ascertained, but in cases of this character, we are bound
to look at the fact that the local congregation is itself but a
member of a much
Page 80 U. S. 727
larger and more important religious organization, and is under
its government and control, and is bound by its orders and
judgments. There are in the Presbyterian system of ecclesiastical
government, in regular succession, the presbytery over the session
or local church, the synod over the presbytery, and the General
Assembly over all. These are called, in the language of the church
organs, "judicatories," and they entertain appeals from the
decisions of those below and prescribe corrective measures in other
cases.
In this class of cases, we think the rule of action which should
govern the civil courts, founded in a broad and sound view of the
relations of church and state under our system of laws, and
supported by a preponderating weight of judicial authority, is that
whenever the questions of discipline or of faith or ecclesiastical
rule, custom, or law have been decided by the highest of these
church judicatories to which the matter has been carried, the legal
tribunals must accept such decisions as final and as binding on
them in their application to the case before them.
We concede at the outset that the doctrine of the English courts
is otherwise. In the case of
Attorney General v. Pearson,
cited before, the proposition is laid down by Lord Eldon and
sustained by the peers that it is the duty of the court in such
cases to inquire and decide for itself not only what was the nature
and power of these church judicatories, but what is the true
standard of faith in the church organization and which of the
contending parties before the court holds to this standard. And in
the subsequent case of
Craigdallie v. Aikman, [
Footnote 29] the same learned judge
expresses in strong terms his chagrin that the Court of Sessions of
Scotland, from which the case had been appealed, had failed to find
on this latter subject, so that he could rest the case on religious
belief, but had declared that in this matter there was no
difference between the parties. And we can very well understand how
the Lord Chancellor of England, who is, in his office, in a large
sense, the head and representative of
Page 80 U. S. 728
the Established Church, who controls very largely the church
patronage and whose judicial decision may be, and not infrequently
is, invoked in cases of heresy and ecclesiastical contumacy, should
feel, even in dealing with a dissenting church, but little delicacy
in grappling with the most abstruse problems of theological
controversy or in construing the instruments which those churches
have adopted as their rules of government or inquiring into their
customs and usages. The dissenting church in England is not a free
church in the sense in which we apply the term in this country, and
it was much less free in Lord Eldon's time than now. Laws then
existed upon the statute book hampering the free exercise of
religious belief and worship in many most oppressive forms, and
though Protestant dissenters were less burdened than Catholics and
Jews, there did not exist that full, entire, and practical freedom
for all forms of religious belief and practice which lies at the
foundation of our political principles. And it is quite obvious
from an examination of the series of cases growing out of the
organization of the Free Church of Scotland, found in Shaw's
Reports of Cases in the Court of Sessions, that it was only under
the pressure of Lord Eldon's ruling, established in the House of
Lords, to which final appeal lay in such cases, that the doctrine
was established in the Court of Sessions after no little struggle
and resistance. The full history of the case of
Craigdallie v.
Aikman, in the Scottish court, which we cannot further pursue,
and the able opinion of Lord Meadowbank in
Galbraith v.
Smith, [
Footnote 30]
show this conclusively.
In this country, the full and free right to entertain any
religious belief, to practice any religious principle, and to teach
any religious doctrine which does not violate the laws of morality
and property and which does not infringe personal rights is
conceded to all. The law knows no heresy, and is committed to the
support of no dogma, the establishment of no sect. The right to
organize voluntary religious associations to assist in the
expression and dissemination of
Page 80 U. S. 729
any religious doctrine, and to create tribunals for the decision
of controverted questions of faith within the association and for
the ecclesiastical government of all the individual members,
congregations, and officers within the general association, is
unquestioned. All who unite themselves to such a body do so with an
implied consent to this government, and are bound to submit to it.
But it would be a vain consent and would lead to the total
subversion of such religious bodies if anyone aggrieved by one of
their decisions could appeal to the secular courts and have them
reversed. It is of the essence of these religious unions, and of
their right to establish tribunals for the decision of questions
arising among themselves, that those decisions should be binding in
all cases of ecclesiastical cognizance, subject only to such
appeals as the organism itself provides for.
Nor do we see that justice would be likely to be promoted by
submitting those decisions to review in the ordinary judicial
tribunals. Each of these large and influential bodies (to mention
no others, let reference be had to the Protestant Episcopal, the
Methodist Episcopal, and the Presbyterian churches), has a body of
constitutional and ecclesiastical law of its own, to be found in
their written organic laws, their books of discipline, in their
collections of precedents, in their usage and customs, which as to
each constitute a system of ecclesiastical law and religious faith
that tasks the ablest minds to become familiar with. It is not to
be supposed that the judges of the civil courts can be as competent
in the ecclesiastical law and religious faith of all these bodies
as the ablest men in each are in reference to their own. It would
therefore be an appeal from the more learned tribunal in the law
which should decide the case to one which is less so.
We have said that these views are supported by the preponderant
weight of authority in this country, and for the reasons which we
have given, we do not think the doctrines of the English Chancery
Court on this subject should have with us the influence which we
would cheerfully accord to it on others.
Page 80 U. S. 730
We have already cited [
Footnote 31] the case of
Shannon v. Frost, in
which the appellate court of the state where this controversy
originated sustains the proposition clearly and fully. "This
Court," says the Chief Justice,
"having no ecclesiastical jurisdiction, cannot revise or
question ordinary acts of church discipline. Our only judicial
power in the case arises from the conflicting claims of the parties
to the church property and the use of it. We cannot decide who
ought to be members of the church, nor whether the excommunicated
have been justly or unjustly, regularly or irregularly cut off from
the body of the church."
In the subsequent case of
Gibson v. Armstrong,
[
Footnote 32] which arose
out of the general division of the Methodist Episcopal Church, we
understand the same principles to be laid down as governing that
case, and in the case of
Watson v. Avery, [
Footnote 33] the case relied on by the
appellants as a bar and considered in the former part of this
opinion, the doctrine of
Shannon v. Frost is in general
terms conceded, while a distinction is attempted which we shall
consider hereafter.
One of the most careful and well considered judgments on the
subject is that of the Court of Appeals of South Carolina,
delivered by Chancellor Johnson in the case of
Harmon v.
Dreher. [
Footnote 34]
The case turned upon certain rights in the use of the church
property claimed by the minister notwithstanding his expulsion from
the synod as one of its members. "He stands," says the
chancellor,
"convicted of the offenses alleged against him by the sentence
of the spiritual body of which he was a voluntary member, and whose
proceedings he had bound himself to abide. It belongs not to the
civil power to enter into or review the proceedings of a spiritual
court. The structure of our government has, for the preservation of
civil liberty, rescued the temporal institutions from religious
interference. On the other hand, it has secured religious liberty
from the invasion of the civil authority. The judgments, therefore,
of
Page 80 U. S. 731
religious associations bearing on their own members are not
examinable here, and I am not to inquire whether the doctrines
attributed to Mr. Dreher were held by him, or whether, if held,
were anti-Lutheran; or whether his conduct was or was not in
accordance with the duty he owed to the synod or to his
denomination. . . . When a civil right depends upon an
ecclesiastical matter, it is the civil court, and not the
ecclesiastical, which is to decide. But the civil tribunal tries
the civil right, and no more, taking the ecclesiastical decisions
out of which the civil right arises as it finds them."
The principle is reaffirmed by the same court in the
John's
Island Church Case. [
Footnote 35]
In
Den v. Bolton, [
Footnote 36] the Supreme Court of New Jersey asserts the
same principles, and though founding its decision mainly on a
statute, it is said to be true on general principles.
The Supreme Court of Illinois, in the case of
Ferraria v.
Vasconcelles, [
Footnote
37] refers to the case of
Shannon v. Frost with
approval, and adopts the language of the court that
"the judicial eye cannot penetrate the veil of the church for
the forbidden purpose of vindicating the alleged wrongs of excised
members; when they became members, they did so upon the condition
of continuing or not as they and their churches might determine,
and they thereby submit to the ecclesiastical power and cannot now
invoke the supervisory power of the civil tribunals."
In the very important case of
Chase v. Cheny, recently
decided in the same court, Judge Lawrence, who dissented, says,
"We understand the opinion as implying that in the
administration of ecclesiastical discipline, and where no other
right of property is involved than loss of the clerical office or
salary incident to such discipline, a spiritual court is the
exclusive judge of its own jurisdiction, and that its decision of
that question is binding on the secular courts."
And he dissents with Judge Sheldon from the opinion because it
so holds.
Page 80 U. S. 732
In the case of
Watson v. Farris, [
Footnote 38] which was a case growing out of the
schism in the Presbyterian Church in Missouri in regard to this
same Declaration and Testimony and the action of the General
Assembly, that court held that whether a case was regularly or
irregularly before the Assembly was a question which the Assembly
had the right to determine for itself, and no civil court could
reverse, modify, or impair its action in a matter of merely
ecclesiastical concern.
We cannot better close this review of the authorities than in
the language of the Supreme Court of Pennsylvania, in the case of
the
German Reformed Church v. Seibert: [
Footnote 39]
"The decisions of ecclesiastical courts, like every other
judicial tribunal, are final, as they are the best judges of what
constitutes an offense against the word of God and the discipline
of the church. Any other than those courts must be incompetent
judges of matters of faith, discipline, and doctrine, and civil
courts, if they should be so unwise as to attempt to supervise
their judgments on matters which come within their jurisdiction,
would only involve themselves in a sea of uncertainty and doubt
which would do anything but improve either religion or good
morals."
In the subsequent case of
McGinnis v. Watson, [
Footnote 40] this principle is again
applied and supported by a more elaborate argument.
The Court of Appeals of Kentucky, in the case of
Watson v.
Avery, before referred to, while admitting the general
principle here laid down, maintains that when a decision of an
ecclesiastical tribunal is set up in the civil courts, it is always
open to inquiry whether the tribunal acted within its jurisdiction,
and if it did not, its decision could not be conclusive.
There is, perhaps, no word in legal terminology so frequently
used as the word jurisdiction, so capable of use in a general and
vague sense, and which is used so often by men learned in the law
without a due regard to precision in its application. As regards
its use in the matters we have
Page 80 U. S. 733
been discussing, it may very well be conceded that if the
General Assembly of the Presbyterian Church should undertake to try
one of its members for murder, and punish him with death or
imprisonment, its sentence would be of no validity in a civil court
or anywhere else. Or if it should at the instance of one of its
members entertain jurisdiction as between him and another member as
to their individual right to property, real or personal, the right
in no sense depending on ecclesiastical questions, its decision
would be utterly disregarded by any civil court where it might be
set up. And it might be said in a certain general sense very justly
that it was because the General Assembly had no jurisdiction of the
case. Illustrations of this character could be multiplied in which
the proposition of the Kentucky court would be strictly
applicable.
But it is a very different thing where a subject matter of
dispute, strictly and purely ecclesiastical in its character -- a
matter over which the civil courts exercise no jurisdiction -- a
matter which concerns theological controversy, church discipline,
ecclesiastical government, or the conformity of the members of the
church to the standard of morals required of them -- becomes the
subject of its action. It may be said here also that no
jurisdiction has been conferred on the tribunal to try the
particular case before it, or that, in its judgment, it exceeds the
powers conferred upon it, or that the laws of the church do not
authorize the particular form of proceeding adopted, and, in a
sense often used in the courts, all of those may be said to be
questions of jurisdiction. But it is easy to see that if the civil
courts are to inquire into all these matters, the whole subject of
the doctrinal theology, the usages and customs, the written laws,
and fundamental organization of every religious denomination may
and must be examined into with minuteness and care, for they would
become in almost every case the criteria by which the validity of
the ecclesiastical decree would be determined in the civil court.
This principle would deprive these bodies of the right of
construing their own church laws, would open the way to all the
evils which we
Page 80 U. S. 734
have depicted as attendant upon the doctrine of Lord Eldon, and
would, in effect, transfer to the civil courts where property
rights were concerned the decision of all ecclesiastical
questions.
And this is precisely what the Court of Appeals of Kentucky did
in the case of
Watson v. Avery. Under cover of inquiries
into the jurisdiction of the synod and presbytery over the
congregation and of the General Assembly over all, it went into an
elaborate examination of the principles of Presbyterian church
government and ended by overruling the decision of the highest
judicatory of that church in the United States, both on the
jurisdiction and the merits, and, substituting its own judgment for
that of the ecclesiastical court, decides that ruling elders,
declared to be such by that tribunal, are not such, and must not be
recognized by the congregation, though four-fifths of its members
believe in the judgment of the Assembly and desired to conform to
its decree.
But we need pursue this subject no further. Whatever may have
been the case before the Kentucky court, the appellants in the case
presented to us have separated themselves wholly from the church
organization to which they belonged when this controversy
commenced. They now deny its authority, denounce its action, and
refuse to abide by its judgments. They have first erected
themselves into a new organization, and have since joined
themselves to another totally different, if not hostile, to the one
to which they belonged when the difficulty first began. Under any
of the decisions which we have examined, the appellants, in their
present position, have no right to the property, or to the use of
it, which is the subject of this suit.
The novelty of the questions presented to this Court for the
first time, their intrinsic importance and far reaching influence,
and the knowledge that the schism in which the case originated has
divided the Presbyterian churches throughout Kentucky and Missouri,
have seemed to us to justify the careful and laborious examination
and discussion which we
Page 80 U. S. 735
have made of the principles which should govern the case. For
the same reasons, we have held it under advisement for a year, not
uninfluenced by the hope that since the civil commotion which
evidently lay at the foundation of the trouble has passed away,
that charity, which is so large an element in the faith of both
parties, and which, by one of the apostles of that religion, is
said to be the greatest of all the Christian virtues, would have
brought about a reconciliation. But we have been disappointed. It
is not for us to determine or apportion the moral responsibility
which attaches to the parties for this result. We can only
pronounce the judgment of the law as applicable to the case
presented to us, and that requires us to affirm the decree of the
circuit court as it stands.
Decree affirmed.
THE CHIEF JUSTICE did not sit on the argument of this case, and
took no part in its decision.
[
Footnote 1]
Form of Government, chap. 9, § 6.
[
Footnote 2]
Form of Government, chap. 10, § 8.
[
Footnote 3]
Ib., chap. 11, § 4.
[
Footnote 4]
Ib., chap. 12, §§ 1, 2, and 3.
[
Footnote 5]
Form of Government, chap. 12, § 5.
[
Footnote 6]
To assist the reader as far as possible in a controversy and
case perplexed by a multitude of names, to keep in his mind a
distinct conception of who were on one side and who on the other,
the Reporter, all through his statement of the case, has put the
names of those who were on one side (and which for mere convenience
may be distinguished as the pro-slavery or conservative side), in
italic letter, and those on the other in Roman.
[
Footnote 7]
2 Bush 363.
[
Footnote 8]
Ib., 346.
[
Footnote 9]
3 Bush 646.
[
Footnote 10]
2
id. 348.
[
Footnote 11]
Watson and
Galt, the reader will remember, had
been declared by the Court of Appeals of Kentucky elders of the
church.
[
Footnote 12]
The same court had declared these two persons to be
trustees.
[
Footnote 13]
71 U. S. 4 Wall.
399.
[
Footnote 14]
3 Wall.
70 U. S. 334.
[
Footnote 15]
35 U. S. 10
Pet. 402.
[
Footnote 16]
48 U. S. 7 How.
624.
[
Footnote 17]
61 U. S. 20
How. 594.
[
Footnote 18]
65 U. S. 24 How.
450.
[
Footnote 19]
61 U. S. 20
How. 594.
[
Footnote 20]
65 U. S. 24 How.
450.
[
Footnote 21]
70 U. S. 3 Wall.
334.
[
Footnote 22]
1 Stat. at Large 334 § 5.
[
Footnote 23]
8 U. S. 4 Cranch
179.
[
Footnote 24]
48 U. S. 7 How.
625.
[
Footnote 25]
3 Merivale 353.
[
Footnote 26]
2 Denio 492.
[
Footnote 27]
3 B.Monro 253.
[
Footnote 28]
18 Vt. 511.
[
Footnote 29]
2 Bligh, 529.
[
Footnote 30]
15 Shaw 808.
[
Footnote 31]
Supra, p.
80 U. S.
725.
[
Footnote 32]
7 B.Monro 481.
[
Footnote 33]
2 Bush 332.
[
Footnote 34]
2 Speer's Equity 87.
[
Footnote 35]
2 Richardson's Equity 215.
[
Footnote 36]
7 Halstead 206.
[
Footnote 37]
23 Ill. 456.
[
Footnote 38]
45 Mo. 183.
[
Footnote 39]
3 Barr 291.
[
Footnote 40]
41 Pa.St. 21.
MR. JUSTICE CLIFFORD, with whom concurred MR. JUSTICE DAVIS,
dissenting.
I dissent from the opinion and decree of the court in this case,
and inasmuch as the case presents an important question of
jurisdiction, I deem it proper to state in a few words the grounds
of my dissent.
Before this suit was commenced, a suit in respect to the same
subject matter and substantially between the same parties had been
instituted in the Chancery Court of Louisville, by parties
representing the same interests as those prosecuted in this case by
the appellees, and they obtained a final decree in their favor
against the respondents therein, representing the same interests as
those defended by the present appellants. Whereupon the respondents
in that suit appealed to the Court of Appeals of that state, where
the decree of the Chancery Court was in all things reversed and the
cause remanded for proper corrective proceedings respecting the
possession, control, and use of the property
Page 80 U. S. 736
in controversy, and for final judgment in conformity with the
opinion of the appellate court. [
Footnote 2/1]
On the twenty-first of February, 1868, the present appellants
filed in the Chancery Court the mandate of the Court of Appeals,
together with a copy of the opinion of the appellate court, and
moved that an order issue for the restitution of the property and
for judgment in conformity with the opinion of the court. Pending
the consideration of that motion the defeated party filed an
original bill in equity against the then appellants, praying that
they be restrained from all further prosecution of their motion for
restitution and from all proceedings, by action, suit, or
otherwise, to obtain possession or control of the property in
controversy, and the chancellor, instead of executing the mandate
of the appellate court, granted the injunction prayed by the losing
party in the original case. Feeling aggrieved by that proceeding
the then appellants applied to the Court of Appeals for a rule to
compel the chancellor to carry the mandate of the appellate court
into effect, and upon that hearing the Court of Appeals decided
that the chancellor had exceeded his jurisdiction in granting the
injunction prior to the entry of their mandate, and rendering a
final decree in conformity therewith, and peremptorily required him
to render a judgment of restitution of the property to the
appellants, insofar as they had been deprived thereof by his
previous orders. [
Footnote 2/2]
Those orders of the appellate court were not executed, but the
unsuccessful party immediately dismissed their bill of complaint to
enjoin the appellants from executing the decree of the Court of
Appeals, and on the twenty-first of the same month filed in the
circuit court of the United States the bill of complaint in this
case, before the second mandate of the appellate court commanding
the chancellor to execute the first mandate was filed in the
subordinate court.
Beyond all question jurisdiction was assumed by the circuit
court in this case by virtue of the fact that the parties are
citizens of different states, in which case the Judiciary Act
provides that the circuit courts shall have original cognizance
Page 80 U. S. 737
concurrent with the several states. Indeed, jurisdiction in the
case is claimed solely upon the ground that the circuit court of
the United States possesses concurrent and coordinate jurisdiction
with the state court in such a controversy.
In view of these considerations, as more fully set forth in the
record and in the opinions given in this case by the Court of
Appeals, I am of the opinion that the circuit court had no
jurisdiction to hear and determine the matter in controversy, as
there were two courts of common law exercising the same
jurisdiction between the same parties in respect to the same
subject matter, within the same territorial limits, and governed by
the same laws.
Neither court had any peculiar jurisdiction over the property in
question nor of any peculiar right or lien upon it claimed by
either party. Originally the state court had the same power with
the circuit court to hear and decide any and every question that
might arise as to the rights of property of either party in the
course of the litigation. State courts and circuit courts in such
cases are courts of concurrent and coordinate jurisdiction, in
respect to which the principle is that
"whenever property has been seized by an officer of the court,
or put in his custody by the process of the court, the property
will be considered as in the custody of the court and under its
control for the time being, and that no other court has a right to
interfere with that possession, unless it be some court which may
have a direct supervisory control over the court whose process has
first taken possession, or some superior jurisdiction in the
premises. [
Footnote 2/3]"
Decided cases asserting that principle and enforcing it are very
numerous in the reported decisions of this Court, and also in the
reported decisions of other courts of the highest respectability.
[
Footnote 2/4]
Page 80 U. S. 738
Remarks to show that the suit in the state court was pending and
undisposed of when the bill was filed in the circuit court are
unnecessary, as the fact is admitted, and in view of that fact I am
of the opinion that the circuit court had no jurisdiction of the
case.
Being of the opinion that the case ought to be reversed and
dismissed for the want of jurisdiction, I do not think it necessary
or proper to express any opinion upon the merits of the case.
[
Footnote 2/1]
Watson v. Avery, 2 Bush 332.
[
Footnote 2/2]
3
id. 635.
[
Footnote 2/3]
Buck v.
Colbath, 3 Wall. 341.
[
Footnote 2/4]
Hagan v.
Lucas, 10 Pet. 400;
Taylor
v. Carryl, 20 How. 594;
Freeman v.
Howe, 24 How. 450;
Payne v. Drewe, 4 East
523;
Peck v.
Jenness, 7 How. 612;
Evelyn v. Lewis, 3
Hare 472;
Noe v. Gibson, 7 Paige 513;
Russell v. East
Anglian Railway Co., 3 McNaughton & Gordon 104.
