Chapter XIII. Officers
153. Charter, By-Laws.—The articles of organization or the charter which is the constitution of the corporation may provide who may be officers of a religious society and limit their authority. The constitution usually gives further authority to make by-laws which are binding on the officers as well as on the members.[274]
154. Unincorporated Church, Incorporated.—The officers of an unincorporated church can only be elected by the members of the church, unless there is some law of the State or rule of the church that provides for appointing them. In an incorporated congregation, the charter and by-laws of the corporation determine whether the officers shall be elected or appointed.[275]
155. Trustees, Control.—A statute passed in 1813 providing that a certificate of incorporation by the bishop, vicar-general, pastor of the church, and two others [pg 094] selected by them and their successors shall be a body corporate, does not constitute the trustees the corporation in place of the congregation so as to make the acts of a majority of the trustees binding on the corporation in the absence of proof of other authority.[276] Under the statutes of Louisiana providing for the incorporation of congregations for the purpose of administration and revenues, it was held that the corporation had full control and was responsible to the congregation alone and could not be controled by the clergy. The congregation had the right to elect others in the places of those amoved by reason of their misuse or abuse of their powers.[277] And in Massachusetts, under the law for incorporating Catholic parishes, no one but the trustees have any power.[278]
156. Membership, Office.—Where church membership is necessary to hold office in the church corporation, it is a binding condition precedent.[279] An officer who withdraws or is expelled from a religious organization thereby terminates his office.[280]
157. Certificate of Election.—A certificate of election of officers is prima facie evidence thereof, but the truth may be shown aliunde and a wrong certificate may be cancelled by a judgment of a competent court on a writ of quo warranto or proceeding under a statute of the State. Also, if the certificate does not conform to the law, it is insufficient.[281]
158. Term, Successors, Contest.—Where there is no term of office fixed, the presumption is that an officer continues as such until proof to the contrary is established,[282] or until his successor shall have been elected and shall have qualified.[283] Also, the officers elected for a certain term can not be amoved by electing new officers before the end of the term.[284] When officers or committees have been elected “for the ensuing year,” they shall hold office until superseded by their duly elected successors. Where two sets of officers were elected at a meeting of a religious corporation and the set that was elected according to the charter continued in office by appointment thereafter, it was [pg 096] too late for the irregularly elected officers to make a contest for the offices after the term for which they had been elected had expired.[285]
159. By-Laws, Preside.—At an election of trustees under by-laws that provide that certain officers shall preside, if there are no such officers members may be selected to preside in their places.[286]
160. Note, Overdraft, Interest.—The president and secretary of a church corporation have no authority to make a promissory note unless authorized by the board of trustees.[287] Neither has the treasurer authority to make an overdraft on a bank with the action of the trustees.[288] The trustees of a parish, however, may make a note binding the congregation for the payment of the money used in building a church.[289] But when the trustees have an interest in the transaction, adverse to the congregation, they are disqualified from acting.[290] When trustees had claims against the congregation which they included with other claims that [pg 097] third parties had against the church, they could not put them in a judgment note so as to get a lien upon the church property. When officers do not bind the congregation, they usually bind themselves.[291] The trustees of an unincorporated church can not bind it beyond the expressed powers granted by the members.[292]
161. Board, Control.—When the laws of the organization give control of matters to the board of trustees, the majority of the members of the church can not control the action of the trustees contrary to the usages and regulations of the church.[293]
162. Treasurer, Accepting a Draft.—A parish treasurer has no authority under any condition to bind the corporation by accepting a draft in favor of a third person. A treasurer elected for the purpose of receiving and investing funds in his individual name, holds such funds as trustee for the church and is subject as such trustee to a court of equity. Persons claiming to be trustees of a church but never getting possession of their offices or the property of the church, can not maintain an action against [pg 098] other persons who are in possession and have been duly elected.[294]
163. Note, Trustees.—A church will not be bound by a note which was executed by two of its trustees and sent around to other trustees to sign it, where there was no vote of the board of trustees at an authorized meeting to borrow or to execute such note.[295] A meeting of a board must be called as required by law or the by-laws of the organization, and in the absence of any such all members must be notified a reasonable time before the time fixed for holding the meeting. However, if all the trustees are present and agree to hold a meeting it is valid; but it would be well to put such consent in writing and have all the members sign it.[296]
164. Money, Powers.—The treasurer of a congregation has no right to return to members moving out of the parish a part of the money paid for the church by them.[297] Officers of a corporation have no powers only those conferred upon them by the charter and by-laws of the corporation or by a majority vote of a duly called meeting of the congregation.[298] When the trustees of a [pg 099] church are authorized to execute contracts for the church, they should act as a body or delegate the power to one of their number or ratify the acts of one of their number.[299] The individual disjointed action of trustees of a religious society, at various times and places, although assented to by a majority, is not the action of the board, and is not binding on the society. To make the action of the board of trustees binding, they must duly meet and by a vote determine their action.[300]
165. De Facto Officers.—The acts of de facto officers can not usually be questioned in a collateral proceeding, such as to set aside a conveyance, when the merits of the question do not involve the election.[301] Being elected does not alone make a person a de facto officer; but he must also be acting in the particular office to which he claims to have been elected.[302] But one who has entered into a contract with the officers of a congregation is estopped from denying their authority to make such contract.[303]
166. Trustees, Thanks, Charge.—Where trustees have taken care of funds without charge, the only entry kept being a vote of thanks from time to time, they could not afterward charge a commission on the moneys handled by them for such services.[304]
167. Discretion, Excommunication.—A court has no authority to control the exercise of the judgment or discretion of the officers of a church in the management of its funds so long as they do not violate its constitution or by-laws.[305] Excommunication does not always remove an officer of a church corporation.[306] The legal rights of a bishop in regard to the temporalities of a church where they are not prescribed by civil law, must rest, if at all, upon the ecclesiastical law, which must be determined by evidence.[307]
168. Key, Possession, Right.—Having the key of a church, is prima facie evidence of possession, but the right of possession is a matter of proof.[308]
169. Church, Bishop, Debts, Salary of a Priest.—Where a church is not itself liable because it is not incorporated, the Roman Catholic bishop of the diocese is not personally [pg 101] liable for moneys borrowed by the pastors of such church in the name of the church, which were partly invested in real estate which was put in the bishop's name in the usual manner, although the bishop's permission was necessary before borrowing the money, and notwithstanding that the bishop raised some of the money to pay some of the debts and the mortgage on the real estate of the church on his personal security, and he received part of the borrowed funds from a dying pastor and handed it over to his successor.[309] Also, a bishop is not personally liable for the salary of a priest whom he engages. They are fellow servants working for the Church and not in the relation of employer and employee any more than are a general and captain in the same army.[310]
170. Note, Building Committee.—In an action on a note given by the pastor of a church for money borrowed to pay bills for the erection of the church building, in which the plaintiff sought to charge the building committee, and it appeared from the plaintiff's testimony that the title to the property was in the bishop and the committee did not handle any of the funds, but was a shifting [pg 102] body to whom the pastor only went for advice and consultation, it was held that the plaintiff could not recover.[311]
171. Fraud, Trust.—Where a “prophet” induced members of his organization, by his fraud and deceit, to convey to him all their property in discharge of a religious duty and then refused to account to them, the court declared the trust closed and divided the estate among the members in proportion to the money, property, and labor contributed by each of them.[312]
172. Superioress, Money.—A person who contributed money for the purpose of repairing a convent, the money being turned over to the superioress and the convent not being incorporated, upon the project being abandoned subsequently a personal judgment could not be obtained against the superioress for the money contributed.[313]
173. Loan, Priest.—If a man lends money to a priest for the purpose of paying a note against the congregation left at the bank for collection, he can recover the money so paid from the congregation.[314]
174. Warden, Wages, Sexton.—A church warden who was hired by the trustees [pg 103] of a church can not collect his wages by an action against the priest of the parish.[315] A church accepting the services of a sexton is liable to him therefor, whether the by-laws were observed in employing him or not; nor will the fact that any party (as in this case the Ladies of the Altar Society) agreed to contribute to his annual salary, defeat his recovery of the whole from the church employing him.[316]
175. Sewing Circle, Money.—A church may maintain an action against a sewing circle to require it to pay over money collected for the benefit of the church.[317]