Opinion
No. 37303.
January 23, 1950.
1. Religious organizations — civil courts — jurisdiction of ecclesiastical controversies — none unless property involved.
Unless some property rights of the complainant are involved, civil courts have no jurisdiction over an ecclesiastical controversy and no jurisdiction to decide who is or who ought to be the presiding bishop of a diocese.
2. Equity — complainant may not complain of that which would show that he himself has no standing in court.
A party is not in a position to complain in a court of equity that he was illegally removed from the office of bishop in a religious organization on the ground that his named successor was appointed at an annual convention of the organization illegally held, when the complainant himself had been appointed at an annual convention subject on parallel facts to the same charge of illegality; nor may he complain that he was not heard at the convention when, although present, he refused to take any part therein.
3. Religious organizations — custom or usage.
Where the senior bishop of a religious organization claimed the authority and exercised it for more than twenty years to determine, and to change the time and the place of holding its annual conventions all with the knowledge and acquiescence of the organization, its officers and members, his action established a usage and custom of the church confirmatory of his construction of his powers and authority in that regard; and when the church manual upon which complainant relies was adopted at a convention thus called he is without standing to question the legality of the conventions called by the said senior bishop.
4. Religious organizations — theory that property is involved not sustained in the absence of factual proof.
A deposed bishop of a diocese is not entitled to maintain a suit in a civil court on the theory that property is involved when his claim is for ten percent of all monies raised by the bishop who succeeded him, illegally as he avers, and when it was not shown that his successor raised any funds to which the complainant would have been entitled under the terms of the church manual.
5. Religious organizations — officers of a church — who are, is solely an ecclesiastical question.
Where no property or the possession of property is involved, civil courts have no jurisdiction to determine who is entitled to be bishop or deacon or any other officer in a church, this being an ecclesiastical question to be determined solely by the ecclesiastical tribunal.
6. Constitutional law — reputation, injury to — action of ecclesiastical body not reviewable by courts.
Constitutional provisions, state and federal, that a person is entitled to redress for an injury sustained to his reputation as well as from any action affecting his property rights do not require that the courts shall be open to hear ecclesiastical controversies even though the reputation of the litigant may be affected by the failure of a court to set aside the action of the ecclesiastical body.
Headnotes as approved by McGehee, C.J.
APPEAL from the chancery court of Hinds County; V.J. STRICKER, Chancellor.
L.F. Easterling and J.E. Skinner, for appellant, cited the following cases: Watson v. Jones, 80 U.S. 679, 20 L.Ed. 666; Dees v. Moss Point Church, 17 So. 1; Grantham v. Humphries, 185 Miss. 496, 188 So. 313; Bailey v. Washington, 238 Ala. 274, 185 So. 172; Skyline Baptist Church v. Davis, 17 So.2d 533 (Ala.); Dismukes v. State, 58 So. 195 (Ala.); Edwards v. DeVance, 138 Miss. 580, 103 So. 194; Hundley v. Collins, 131 A.L.R. 234, 32 So. 575, 90 A.S.R. 33.
And concluded as follows: We think the above summary in connection with the documents and evidence supporting the same show overwhelmingly and without the shadow of a doubt, that the appellee here, O.B. Cobbins, has no right whatsoever to maintain this suit. Every objection of the said Cobbins in his bill of complaint and in his proposed evidence was simply overwhelmingly disproved and demolished by the proof and documents offered by M.R. Conic undisputed and indisputable.
It seeems apparent that this suit was filed on behalf of the said Cobbins for the benefit of himself, Washington and Holman, to secure control and domination of the entire church. But it will be noted, as we contended by demurrer and special plea, that although this church was duly incorporated under the laws of the State of Mississippi, it was not made a party; it was a brazen attempt on the part of Cobbins to disrupt the entire church and its administration by attempting to strike at Conic instead of the said church; that if he had any cause of action, it was against the church itself, a corporation, and not against an appointee of the National Convention, and that he has no right to maintain this suit; that the evidence shows that he was a seceder; that he refused to follow the leadership of the said church; that he with the other dissenters withdrew and refused to participate in the orderly administration of the church affairs; evidently his aim was to "rule or ruin". His position throughout is utterly untenable for the reasons and under the authorities we have heretofore pointed out. Furthermore, we submit that the record shows indisputably, and we might say admittedly, that in 1948 an effort was made to reconcile the differences, for the sake of the church, and that at a meeting of the Board of Bishops, Holman, Washington, and Cobbins were present, and that after the filing of this suit and while this suit was pending, Bishop Washington offered a resolution, which was seconded by Bishop Holman and participated in by Bishop Cobbins, that the cause of disagreement be referred to the National Executive Council of the Church of Christ (Holiness) U.S.A. elected in 1944 (the quadrennial) for final actions, which motion was carried. In other words these parties, after this suit was filed, agree to refer this matter in dispute to the said Executive Board as constituted in 1945.
We think this demonstrated that the questions and discussions constituted purely ecclesiastical matters, which could be and should be settled by the church itself through its proper organizations, and we think the record shows there are no property rights involved; that there are no civil rights involved — only religious and ecclesiastical matters, with which civil courts will not interfere.
For the reasons heretofore pointed out, we respectfully submit that the opinion and decree of the court below are erroneous and not supported by the record but are in contravention of the undisputed and indisputable records and facts, and that this case should be reversed and decree entered here for appellant, dismissing the said suit at the cost of appellee.
John G. Burkett and M.L. Mhoon, for appellee, filed the following suggestion of error: Comes now the appellee, O.B. Cobbins, and with much respect files this suggestion of error in reference to the opinion rendered by this court on January 23, 1950, and respectfully submits to the court the following:
1. The court overlooks entirely the very serious question that, Jones retired voluntarily, at the 1945 Convention, when his recommendations asking for retirement were approved and Washington was elected in his place. The lower court, in its opinion found this as a fact which finding is amply supported by the record. Washington continued to exercise the powers as the president from then until the 1946 Convention and beyond that convention, until the appellant and others went to California and persuaded Jones to fire Washington, which he undertook to do. Nowhere in the church laws is there any such authority in Jones to discharge Washington and appoint Butler in his place. Only a National Convention could do this, and it is doubtful if even that body could do so, before the term of office expired. This is one act that the appellant cannot justify by falling back on customs, usages, etc., because nowhere in this record is there any intimation that any such power or actions had ever theretofore been exercised by Jones.
After Jones had fired Washington, or attempted to do so, and appointed Butler in his place, he (Butler), not Jones, as the court indicates in its opinion, called the extra session of the National Convention to meet in Jackson. The contention of appellee is that Jones, having voluntarily resigned, had no further power or authority in the church, and this fact is amply borne out by the record. Having no further power, he, therefore, could not fire Washington and appoint Butler. Jones having no power to appoint Butler, his (Butler's) call of the Special Session of the National Convention to meet in Jackson, in May of 1947, could not be covered by the all-pervading blanket of usage and custom. A person who has no power could not be given power by usage and custom, etc.
2. The court says in its opinion that Cobbins, the appellee, was not entitled to any of the money raised in the diocese, for the reason that he did not personally raise any of this money. It is the contention of the appellee that the appellant wrongfully prevented him from so doing, by his actions, when he illegally took possession and charge of the diocese and prevented him from participating in the affairs of the diocese. In other words, the appellant, by his wrongful acts, enriched himself to the injury of the appellee and the court will recognize without any citation of authority that no person is permitted in a court of justice to take advantage of his own wrong; that he will not be permitted to unjustly enrich himself to the detriment of another person, or to gain by his own wrongdoing. This is what the appellant did.
3. The court further says that Cobbins, the appellee, is estopped from demanding written charges and accusations against him and a trial thereon which is provided for by the church law because he was present one time, but took no part in the proceedings of the Special Session of the National Convention, called by Butler at Jackson, in May of 1947, and also at the National Convention at Chicago, the same year. If we understand the holding of the Court in this respect, it means that estoppel works against the appellee because he was silent and took no part. With great respect, we submit that this is the first time we have come into contact with estoppel by inaction, by doing nothing, by making no contentions, by misleading no person, by making no promises or claims, by hurting nobody, simply there, inactive and silent. We recognize, and know it is true, that estoppel may arise and come into action by mere silence, but only when a duty rests upon a person to speak. No charges had been brought against the appellee; he did not know that any would be brought against him and, therefore, under these circumstances, he was under no duty to speak. What was his duty under these circumstances? Should he have arisen before the body and demanded a hearing and trial, before he even knew he would have accusations preferred against him, when he was not charged with any act of wrongdoing? Certainly, he was not required to say or do anything until he had been served with a copy of charges preferred against him, made in writing. Certainly there should be no estoppel against him under such circumstances, by mere silence. He had nothing to talk about relative to displacing him or firing him from his position, for this question had not arisen. He had a right to rely upon the written law of the church.
The court further says in the opinion, that having taken the position that these meetings were without authority, under the church law, he cannot now claim any rights under the church law, for that reason. The court has stated that he was mistaken in his views on that subject. Then, certainly, if as the court has held in the opinion that these meetings were legally constituted bodies this alone would not go so far as to release them from a positive requirement of the church law or, in any manner, work a fulfillment on their part of a provision of the church law.
The attention of the court is called to the provisions of the church law which provide the method of trying a bishop. Written charges must be made, copies furnished the accused, and he must be given an opportunity to be heard, and be tried by a Special Tribunal, a Board of Elders, to be appointed by the College of Bishops. The National Convention had no power to try him. It had no jurisdiction in the matter as the law now stands. Of course, it could by the proper proceedings, change this method of trial, but no change was made and could not be made so as to be retroactive.
Therefore, it seems inescapable that the appellee was entitled to this much attention to the church law, and is not asking too much to seek that protection afforded him by the church law.
4. We reiterate what was said in our brief about the laws pertaining to Baptist Churches being different from those of churches having written laws. According to American Jurisprudence, this is the rule. The court refers to Carothers v. Moseley, 99 Miss. 675 55 So. 881, but the court misses the point in that cause which decides as we see it, this case in our favor. In the last paragraph in the opinion in that case, the court stated the rule which obtains almost universally, throughout this country:
The court said: "It may be that cases may arise wherein the decision of the ecclesiastical tribunals is so palpably erroneous or so manifestly in excess of its jurisdiction that the civil courts ought to decline to be bound thereby. Such however is not the case here and consequently we are not called upon to express an opinion thereof."
This is the rule in practically every state where the questions have been before the court. The courts will always accept the responsibility of jurisdiction where the church tribunal acts outside of its authority and exceeded its powers.
In this case, no tribunal has ever acted or pretended to act. The Chicago Convention and the Jackson Convention simply ignored the Church law, and the appellee was booted out of his position, without charges, without a hearing or anything that resembled such, and the appellant moved in.
5. The court is earnestly requested to re-examine the case of Cherry, et al. v. Bivens, 185 Miss. 329, 187 So. 525.
The splendid opinion holds that it is the established and fixed public policy of this state to protect persons holding offices in lodges, religious organizations and social organizations from arbitrary dismissal therefrom. That the courts do not favor arbitrary action in dismissing persons from these positions.
The court said: "It would be fundamentally unjust to deprive a person of these offices in such organizations, and to have his reputation affected by the fact that he was expelled, or his rights forfeited by superior officers."
The expression, "good cause", implies that it shall not be arbitrary, and that the defendant shall have a right to hearing as to the fact alleged to constitute such "good cause".
If it be true as stated in this opinion only recently rendered by this court, that the established public policy of the state is to the effect that persons are protected in their rights to hold such offices in fraternal societies, church organizations, etc., and that they shall not be unjustly removed therefrom without a hearing, then the public policy of the state, which affects the people vitally in their daily lives, should be a more stable thing, and it should not be changed except for some very impelling reason, which we, with respect, submit is not present in this case.
The court goes further in the opinion as follows: "It is generally held by the authorities that members of an organization of the character here involved, before being deprived of their offices, membership and other rights, must have a hearing and an opportunity to defend or meet the charges preferred against them."
In this statement, the court is eminently correct, for generally, and almost universally, the authorities do so hold, just as stated in the opinion.
The court said further, with reference to a rule of such organizations authorizing dismissals without a hearing. "It is doubtful whether such a rule would be upheld because it would be purely arbitrary, and capable of inflicting a wrong upon a person without a remedy."
The court said in its opinion in this case that this decision did not cover the appellee's rights. If it is the established public policy of the state that such rights are valuable, and cannot be arbitrarily taken away from a person, leaving him no remedy, then certainly it seems reasonable and just that the established public policy of the state should extend to the appellee and give him a right to be heard in court.
What is "public policy"? It is often said that the term is difficult of definition. There are many definitions in the books, from many courts. It is said in State v. Bowman, 184 Mo. 549, 170 S.W. 700, by the court, as follows: "One of the best definitions perhaps is that of Justice Story, which applied the term to that which `conflicts with the morals of the times and contravenes any established interest of society.'"
In Pittsburgh Railroad Company v. Kinney, 95 Ohio 64, 115 N.E. 505, L.R.A., 1917D, 641, Ann. Cas. 1918B, 286, the court discusses the term and its sources in this language:
"It has frequently been said that public policy is a composite of constitutional provisions, statutes and judicial decisions, and some courts have gone so far as to hold that it is limited to these. The obvious fallacy of such a conclusion is quite apparent from a most superficial examination. When a contract is contrary to some provision of the constitution, we say it is prohibited by the constitution and not by public policy. When a contract is contrary to a statute, we say it is prohibited by a statute, not by public policy. When a contract is contrary to a settled line of judicial decisions, we say it is prohibited by the law of the land, but we do not say it is contrary of public policy. There was no precedent for it, else it foundation of all constitutions, statutes and judicial decisions, and its latitude and longitude, its heights, and its depths greater than any or all of them. If this be not true, whence came the first judicial decision or matter of public policy. There was no precedent for it, else it would not have been the first.
"Sometimes such public policy is declared by constitutions, sometimes by statutes, sometimes by judicial decisions. More often, however, it abides only in customs and conventions of the people, in their clear conviction of what is naturally and inherently just and right between man and man."
Public policy has been defined as being synonymous with the term "policy of the law", and also defined as the "public good". 50 C.J. 858.
Whatever may be the true meaning of the term, "public policy" its effects in the daily lives of the people are far-reaching, deep and profound. And the established public policy of the state, extending over many years, should not be lightly regarded or varied for any except the most vital reasons. We submit respectfully that the rule in Cherry v. Bivens is the sounder and more just rule.
It is true that the Cherry v. Bivens case was a case over lodge offices and this is a case over church offices. The court accepts jurisdiction in one, and declines jurisdiction in the other. What is the difference between the two? Is there a sound reason to make a distinction between them? If so, what is the sound reason?
There is very little, if any, essential difference between the offices of a lodge and the offices of a church. Both systems have a judicial system of their own. The courts simply see to it that they do not sidestep their own procedures, to the injury of their members. The courts demand that they obey and proceed according to the law which they have made for their own government, and when they exceed their authority or act arbitrarily, or go beyond the limits of their jurisdiction, the civil courts require them to get back into the limits of their authority and jurisdiction, and proceed in accordance therewith.
With great respect to the court, we see no practical difference, except there is a stronger reason in favor of the church offices, and especially those who draw pay and have contractual rights involved, it being the rule, generally known, that most lodge offices act not for pay, but for the honor which attaches to the lodge office.
We therefore earnestly entreat the court to give the Cherry v. Bivens case a most searching re-examination and adopt the doctrine set forth therein as the rule in this case.
We submit, with respect, that the court should, upon a consideration of this suggestion of error, affirm this case and remand it to the lower court for further proceedings thereon and for the rendition of such orders and decrees as may be found justified by the facts there developed
This appeal was granted with supersedeas from a decree of the chancery court whereby the complainant O.B. Cobbins was declared to be entitled to officiate as the presiding bishop of the southcentral diocese of the Church of Christ (Holiness), U.S.A., in the place and stead of the incumbent bishop M.R. Conic, against whom the suit was filed on December 30, 1947.
The defendant Conic was elected and consecrated as a bishop and placed in charge of the said diocese in August, 1947, by the action of the national convention of the church at Chicago, Illinois, to succeed H.R. McInnis, who had superseded the complainant Cobbins by order of the Board of Bishops in May, 1947, pending the election of a new bishop for the diocese at the approaching convention in Chicago. The disposition of the controversy as to whether the complainant Cobbins, who had been elected bishop at the national convention in St. Louis in August, 1945, and placed in charge of this diocese, should be replaced by someone else pending the holding of the 1947 convention at Chicago, was referred to the board of bishops in May, 1947, by the senior bishop of the church, Charles P. Jones, of Los Angeles, who was the founder of the Church of Christ (Holiness) movement in 1896 (originally known as the Church of God). Mount Helm Baptist Church et al. v. Jones et al., 79 Miss. 488, 30 So. 714.
Under Chapter 5, Article 1, Section 1 of that part of the church manual relating to the Government of the church, it is provided: "The national convention is the supreme authority for . . . making the laws for the government of the church." Article 3, Section 1, of the same chapter, provides that: "The national convention shall elect bishops, one of whom shall be designated as senior bishop. The executive power of the national convention shall be vested in the senior bishop."
The complainant challenges the validity of the election of Bishop Conic on the ground, first, that the national convention at which the said defendant was elected at Chicago in August, 1947, was illegally held, and, second, because the complainant was not offered the opportunity to be heard or granted a trial before he was superseded by H.R. McInnis, who was thereafter succeeded by the defendant Conic, as aforesaid.
The contention that the convention at Chicago was illegally held is based upon the fact that at the 1946 convention a recommendation of the "Committee on Time and Place" was adopted whereby the convention for 1947 was to be held at Los Angeles. It seems that at the instance of Senior Bishop Jones, who had at all times been the president of the annual national conventions and was the senior bishop and executive head of the church since it was founded, an extra or special session of the national convention was held at Jackson, Mississippi, on May 13, 1947, and that a majority of all of the members of the convention voted to change the time and place for the regular annual convention from Los Angeles to Chicago. The complainant appeared at the extra or special session at Jackson, qualified to participate therein by the payment of his membership enrollment fee, but declined to take any part in the proceedings on the ground that such extra or special session was called at the instance of the senior bishop without any authority under the constitution and by-laws of the church, as contained in the church manual, and he even disputed the fact that Bishop Jones was senior bishop of the church at the time. He also appeared at the convention at Chicago, but declined to take part in the work of the convention, and went on to Los Angeles where one Bishop Wm. A. Washington undertook to hold the annual convention in opposition to the one held in Chicago, and where it is said that less than 10% of approximately 200 churches belonging to this religious organization were represented.
In fact, prior to the extra or special session of the convention in Jackson on May 13, 1947, both Bishop Washington and the complainant Cobbins had defied the authority of the senior bishop, denounced the action of the church in undertaking to hold an extra or special session of the convention and the annual convention at Chicago, instead of Los Angeles, and declared that these proposed conventions were repudiated, not recognized, and were not to be held or attended, the manifesto of the complainant Cobbins being issued under the caption of "Notice Extraordinary" and addressed to all of the bishops, officers, ministers, leaders, and members of the churches of the diocese, and declaring that he was "not favoring, but disrecognizing the call for the extra session of the national convention for May 13, 1947, at Jackson, Mississippi". Upon receiving a copy thereof, Senior Bishop Jones wrote to the complainant and, among other things, stated: "Remember, Son, I was to remove you at the last convention, but I did not because I was unable to attend, so you have served a little longer than you should have. I am expecting you to meet me at Jackson, Mississippi, on the 13th of May, . . . . Being president and senior bishop I have authority to call meetings if I so deem."
However, when the extra or special session convened on May 13th, Bishop Jones referred the disposition of the bishopric of the southcentral diocese to the board of bishops, which selected H.R. McInnis to supersede the complainant, pending the holding of the annual convention at Chicago in August, 1947, as aforesaid.
(Hn 1) Thus it will be seen that the action thus taken in reference to the complainant Cobbins was a disciplinary measure, an ecclesiastical controversy, and over which the civil courts have no jurisdiction, unless some property rights of the complainant are involved, the courts being otherwise without jurisdiction to decide who is, or who ought to be, the presiding bishop of a diocese.
(Hn 2) Moreover, the complainant is not in a position to contend in a court of equity that the defendant Conic is not entitled to hold the office of bishop on the ground that the national convention at which he was elected was held at a place other than that fixed at the previous annual convention in 1946, since the complainant was elected as a bishop at a convention held in St. Louis, in 1945 after the time and place for the holding of such annual convention had been fixed by the 1944 convention to be held in Los Angeles, instead of St. Louis, the time and place therefor having been changed by order of the senior bishop. Nor is he in a posit on to contend that he was not afforded a trial or hearing either at the extra or special convention at Jackson on May 13, 1947, or at Chicago in August, 1947, since he was present at both conventions, qualified to participate therein and failed to do so, and denied the authority of the majority of the members at each of the conventions to hold the same, and was disputing their right to transact any business whatsoever.
(Hn 3) As to the authority of the senior bishop to call, or cause to be called, either of these conventions in 1947 at the time and place where the same were held, it appears that Senior Bishop Jones had from time to time, over a period of more than 20 years, changed the time and place for the holding of the annual conventions, and had called extra or special sessions of the convention at his will and pleasure, and his action in that regard had been uniformly acquiesced in, by the church, its bishops, elders, ministers, board of bishops, executive councils, and all members of the convention without question. And, when the manual of the church containing its constitution and by-laws was revised and adopted by the annual convention at St. Louis in 1945, the action of the senior bishop in thus exercising his executive authority during the period of years and in the manner aforesaid was well-known to the members of the convention, and his action in that regard had established a usage and custom of the church in that behalf, and the convention is therefore presumed to have adopted the senior bishop's construction of his own power and authority as the executive officer and head of the church. If he is deemed to have been without such authority, then the very manual of church laws on which the complainant relies for maintaining this suit was illegally revised and adopted at St. Louis in 1945, and no other edition of the manual was introduced and made part of the record, and we have no judicial knowledge of what the prior manuals may have contained.
(Hn 4) The complainant by this suit also seeks an accounting from defendant Conic of the compensation received by the defendant during his incumbency of the office of presiding bishop of the diocese in question on the ground that the manual provides: "Bishops are permitted to retain their 10% of all monies raised by them in their respective dioceses" (italics ours), and he also seeks a discovery as to what books, records, and funds are in the hands of the defendant belonging to the diocese, and of which the complainant claims to be the custodian by virtue of having been elected as the presiding bishop. However, the complainant is not shown to have raised any part of the funds out of which the defendant Conic may have deducted the 10% for his own services, nor would the complainant be entitled to a discovery in a court of equity as to what books and records of the church were in the possession of the latter, and to have the same turned over to the complainant contrary to the action and wishes of the national convention in Chicago, which placed the same in the custody of the defendant.
In other words, we are of the opinion that there are no property rights of the complainant involved, such as to entitle him to invoke the jurisdiction of the civil courts in this cause as to the 10% claimed by him of the funds raised in the diocese, and it is shown that the remaining funds have been duly accounted for and distributed to the causes for which the same were collected. There is no claim that any of the books, records, and funds are being diverted to any other use than that intended.
There is presented the further ecclesiastical question of whether or not the complainant was entitled to officiate as bishop of the diocese at the time of the institution of this suit in view of the fact that the local church of the diocese, of which he was a member at Jackson, Mississippi, had withdrawn from him the hand of church fellowship, and in effect excluded him as a member thereof prior to the filing of the suit, after ample opportunity had been afforded him for a hearing in regard to his defiance of the authority of the senior bishop and of the special and annual national conventions, and he took no appeal from the action of the local church in that behalf.
(Hn 5) On the question of our authority to determine who ought to be the presiding bishop of the diocese, we call attention to the case of Edwards v. De Vance, 138 Miss. 580, 103 So. 194, 195, wherein the court said: "The office of deacon is purely ecclesiastical, and the incumbent thereof is subject at all times to the control of the church; the only persons entitled thereto being those the church recognizes as such. Over the office and elections to it the courts have no control, and it is here wholly immaterial whether the election of any of the parties hereto was illegal; that being for the determination of the church, and those of the parties hereto who are recognized by the church as such have the right to discharge the duties of deacon thereof."
In Grantham et al. v. Humphries et al., 185 Miss. 496, 188 So. 313, there was litigation between two factions in the Baptist Church. The question involved was the use of the church building and its records for religious worship. The chancellor dismissed the bill, and this Court said: "We reach the same conclusion the chancellor did. The question involved is ecclesiastical and not one for the civil courts. The church authorities and such tribunals as they may set up for themselves are supreme in such matters. Their decision is final as to who shall be the pastor and other officers. Such disputes are ecclesiastical in their nature and the courts have no control over them. Windham et al. v. Ulmer et al., 102 Miss. 491, 59 So. 810; Allen v. Roby, 109 Miss. 107, 67 So. 899; Edwards v. De Vance, 138 Miss. 580, 103 So. 194."
But it is said that these cases are not applicable because they related to controversies in a Baptist church, which is a law unto itself in that it has no constitution and by-laws, as distinguished from the church in which the controversy now before us arose. However, the fact that the rule of the majority may prevail in a Baptist Church, whereas controversies in churches having a constitution and by-laws are to be settled according to such church laws, has no bearing on the question of whether or not the questions are ecclesiastical or civil.
But in the case of Carothers v. Moseley, 99 Miss. 671, 676, 55 So. 881, the question involved grew out of the union of the Cumberland Presbyterian Church and the Presbyterian Church, U.S.A., and this Court, in its opinion, said: "The question we are called upon to determine, therefore, is simply which faction is the true representative or successor of the Cumberland Presbyterian Church at West Point, Miss., as the same was constituted prior to the schism therein caused by the union of the Cumberland Presbyterian Church with the Presbyterian Church, U.S.A. In order for us to do this, it is only necessary that we ascertain whether the union of the two churches was valid. If so, appellees are entitled to the property; if not, appellants are entitled thereto. The validity of this union is purely an ecclesiastical question, involving the doctrine, discipline, ecclesiastical law, rule, and custom of the Cumberland Presbyterian Church. Such questions this court will not for itself determine, even where property rights are involved, but will accept the decision thereof by the highest ecclesiastical authority of the church. Mount Helm Baptist Church v. Jones, [supra]."
Thus it will be seen that our Court has taken jurisdiction of church controversies where the possession of the physical properties of the church is involved, but the Court has generally, if not uniformly, declined to pass upon an ecclesiastical question in order to determine how church property should be awarded, but has awarded the same in accordance with the decision of the ecclesiastical tribunal.
The Church of Christ (Holiness) U.S.A. is incorporated under the laws of the State of Mississippi, and, of course, would be a necessary party to this suit if its physical assets held in its corporate capacity were involved. Skyline Missionary Baptist Church et al. v. Davis et al., 245 Ala. 455, 17 So.2d 533; Bailey et al. v. Washington et al., 236 Ala. 674, 185 So. 172. But we do not pass on the question as to whether the church in its ecclesiastical capacity is a necessary party to the present suit, since it is unnecessary that we do so in view of the conclusion that we have reached.
(Hn 6) It is true that in the case of Cherry et al. v. Bivens et al., 185 Miss. 329, 187 So. 525, the Court held that a person is entitled to notice and hearing before being deprived of any of his rights, and that positions in fraternal, social or religious organizations are valuable rights of which holders cannot be deprived without notice and opportunity for hearing under Section 24 of the State Constitution of 1890, and the fourteenth amendment to the Constitution of the United States; that a person is entitled to redress for an injury sustained to his reputation as well as from any action affecting his property rights. That case, however, involved the rights of certain parties to officer in a Masonic lodge. The case presented no ecclesiastical question, and the decision was based primarily on the ground that the suit was one in equity and that the complainants had not come into court with clean hands. Anything said in the opinion that would tend to indicate that the civil courts should take jurisdiction in regard to the action of a church in expelling a member, etc., thereby affecting his reputation, was unnecessary to the decision of the question involved, and is not controlling here. Most assuredly, the courts will not take jurisdiction of any and all acts of a church that may affect the reputation of its pastor or some of its members. The constitutional provisions above referred to do not require that the courts shall be open to hear ecclesiastical controversies even though the reputation of the litigant may be affected by the failure of a court to set aside the action of the ecclesiastical body. We are therefore of the opinion that under the proof contained in this record, the trial court should have dismissed the bill of complaint, instead of reinstating the complainant as bishop and retaining jurisdiction of the cause for the accounting and discovery; and therefore the decree appealed from is reversed and the bill of complaint is dismissed.
Reversed and bill of complaint dismissed.
Lee, J., took no part in this case.