The Clergyman's Hand-book of Law: The Law of Church and Grave

by Charles Martin Scanlan

Chapter VI. Incorporated Religious Societies

62. Special Law, General Laws.—In most of the States there is a special law under which congregations may be incorporated. New York is a good example.[111] Where such law does not exist, the congregation may be incorporated under the general laws. For business reasons each congregation should be incorporated.[112]

63. Officers, Discipline, Property.—When a church society incorporates it becomes a private corporation, and the officers are bound to manage the property in the most upright and careful manner according to the discipline of the church.[113] When a parish incorporates, the title to the parish property vests in the corporation, to which trustees may be compelled to convey it.[114]

64. Incorporation, Evidence.—The certificate of incorporation or charter of a religious society or a certified copy thereof [pg 051] from the public record, is the proper evidence thereof.[115] Secondary evidence and evidence aliunde may be competent in some forums.[116] In most States if incorporation is alleged in the complaint, it need not be proved unless denied by an affidavit or a verified answer.

65. Congregation, Members.—The act of incorporation applies only to the particular congregation petitioning for it and does not extend to other churches, even though they are a subsequent growth within the same territory.[117] Incorporation once established is presumed to continue.[118] When a new religious society is formed and incorporated, consisting of individuals from existing parishes, the members of the new society from the time of its incorporation cease to be members of the respective parishes to which they had belonged.[119]

66. Temporal Affairs, Management.—A majority of a religious corporation at a regularly called meeting may, by a vote taken, bind the minority in all temporal affairs.[120] The character of membership in the religious corporation may be very different from [pg 052] that of membership in the church.[121] The fact that a member has been declared out of the church by an ecclesiastical tribunal, may not affect his rights in the management of the temporal concerns of the corporation.[122]

67. Corporators, Change.—In isolated cases here and there it has been held that a majority of the corporators of a religious society has the right to change the form of church government, as from the Congregational Church to an organization in connection with the Presbyterian Church.[123] But it is a general rule that a majority of the congregation can act only consistently with the particular and general laws of the church organization, but not in violation of them.[124]

68. Constitution, Subsequent Laws.—An ecclesiastical society formed before the adoption of the state constitution is not by that constitution and subsequent laws concerning religious societies divested of its legal character.[125]

69. Name, Change.—The name of an ecclesiastical corporation is arbitrary and a [pg 053] change or alteration in its name does not affect its identity.[126] A charter will not be granted to a church with a name so like another church in the same State, that one may be taken for the other.[127]

70. Church, Regular.—In church organizations those who adhere to the regular order of the church, legal and general, though a minority, are the true congregation and constitute the corporation if incorporated.[128]

71. Notice, Legal.—All the proceedings of a corporation, including notice, must be in accordance with the constitution and by-laws, and no business transacted contrary thereto is legal.[129]

72. Control, Secede, Vested Rights.—The officers of a church corporation have control of the business management for all civil purposes, excepting as otherwise provided by the articles of organization, charter, or by-laws of the corporation. However, the by-laws must not contravene the laws of the State.[130] A charter was refused in Pennsylvania which provided that the [pg 054] congregation might, by a majority vote, dissolve or secede from the central body and divide the property.[131] A charter of incorporation may be amended in harmony with the principles, discipline, and objects of the church, but not otherwise.[132] The fact that incorporation of a church confers certain rights and privileges under the charter, such charter being accepted, does not give the church corporation any vested rights.[133]

73. Consolidation, Control, Dissolution.—So far as the State law is concerned, two different denominations may form one corporation;[134] or two or more congregations of the same organization may form one corporation.[135] Where such consolidation is attempted, the new organization must have control of all the property.[136] So long as different congregations attempting to consolidate retain their respective identities, they do not form a single corporation.[137] It is a general rule that a corporation may be dissolved by taking the steps required by law. As there are various statutory provisions in the [pg 055] different States, each case had best be attended to by an attorney. In some States there is a provision that where a corporation fails to carry out its functions for a stated time, it thereby becomes dissolved. The omission of a parish for one year to elect officers, does not necessarily operate as a dissolution under such statute. In case of dissolution under a statute of that kind, the property of the church is not forfeited to the State.[138]

74. Debt, Limited.—The amount of debt which the trustees of a religious society may be authorized to create, may be limited by its constitution.[139]

75. Conditions, Effect.—Where $1,000 was given defendants to erect and maintain forever a Lutheran church and prohibiting the grantee from alienating or disposing of or otherwise changing or encumbering the land by deed, a mortgage given to secure a legitimate debt was held valid, as the legal title was in the corporation and a court of equity could not refuse to enforce the mortgage for the payment of an honest debt under color of protecting a charitable use.[140] But property given a congregation for the [pg 056] maintenance of a church that becomes dissolved, reverts to the heirs as a resulting trust.[141] A corporation that has been authorized to purchase land may execute a mortgage for the purchase money or a part of it without further authority.[142] Where by an ancient agreement a meeting-house was to remain in a particular place, a vote of the congregation will not justify pulling it down, and an action of trespass will lie for razing it and damages will be given for the value of the building.[143]

76. Suits, Parties.—When a church is incorporated, it should be sued in its corporate name; but when the bishop of the Catholic church holds the legal title to the land in litigation, he should be made a party.[144] And if there are two sets of officers contending for control, service of the papers upon the intruders may not be sufficient. The safer practice is to serve upon both.[145] A suit by the trustees of a religious society to restrain other parties claiming to be trustees from interfering in the management and control of the society property, is properly [pg 057] brought in the corporate name of the trustees and not in the name of the State.[146]

77. Incorporation, Sufficient.—Where the articles of incorporation were drawn and signed in the form required by law, excepting as to the acknowledgment, and were recorded, and the corporation organized in good faith, it became a de facto corporation and was sufficient to entitle it to sue to prevent certain members from perverting the use of its property.[147]

78. Dissolution, Fund.—The corporation of a congregation can not by seceding and a majority vote dissolve the corporation where it is a part of a superior body.[148] But the courts have plenary powers over corporations under the United States jurisdiction, such as territories, and may dissolve a corporation.[149] The fact that the dissolution is contrary to, or authorized by church discipline, makes no difference as to granting the dissolution, as such discipline can not supersede the state law.[150] On dissolution of a religious corporation, the surplus fund derived from a legacy should be disposed of in the manner the court believes to be most in [pg 058] harmony with the will of the contributors to the fund, could they have foreseen the event.[151]

79. Reorganization.—A church corporation may reorganize and be reinstated into all rights that it formerly had.[152] The steps to be taken to reorganize are usually provided by statute and should be closely followed. Upon the reorganization, the old corporation becomes terminated.[153]

80. Meetings, Majority, Quorum.—In corporate meetings, meetings of boards, and meetings of committees duly called, a majority vote of those present determines the action of the body. If the membership is indefinite, those who attend such meeting constitute a quorum; but if the membership is definite, it requires a majority of the voting members to constitute a quorum, unless the law of the State or the constitution (articles of organization) or by-laws provide a different number.[154]

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