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District Court of Appeal, First District, Division 1, California.


No. 15179.

Decided: April 25, 1952

Edward D. Mabson, San Francisco, for petitioner. Joseph E. Isaacs, Alan H. Critcher, San Francisco, for respondent.

The petitioner applied for a writ of prohibition restraining the respondent court from taking any further proceedings in a certain action pending therein against petitioner F. B. Banks as defendant. Findings of fact, conclusions of law, and an interlocutory decree had been entered determining the membership of the board of trustees of the petitioning corporation and declaring that the trustees are entitled to the possession of the property and money of the corporation, that Banks claims no interest in the real property, that some moneys of the church had been deposited in a bank but neither the defendant nor any other officer had given an account to the members of the church, that a referee be appointed to take an account between the church and the defendant, that certain resolutions of the trustees and of the congregation purportedly removing Banks as pastor were ineffective, that Banks still was the pastor, and that a fair election could not be conducted by Banks or the other officers of the church; and appointing a referee to conduct an election of the members to determine whether or not Banks shall be retained as pastor. An alternative writ was issued limited to the question of the jurisdiction of the respondent court to conduct such an election. Therefore, the sole question is whether or not the respondent superior court has jurisdiction to order and, through a referee appointed by that court, to conduct and hold an election at which there shall be submitted to all members in good standing of the Providence Baptist Church of San Francisco, the question ‘shall the services of F. B. Banks, pastor of Providence Baptist Church of San Francisco, be dispensed with.’

This question must be answered in the negative. The calling and holding of such an election is a purely ecclesiastical function, not a function of the civil courts.

‘The only basis for the court's interference in an ecclesiastical controversy is that some property or civil right is involved. Civil courts in this country have no ecclesiastical jurisdiction. They cannot revise or question ordinary acts of church discipline (White Lick Quarterly Meeting of Friends v. White Lick Quarterly Meeting of Friends, 89 Ind. 136; Ferraria v. Vasconcellos, 31 Ill. 25), or properly interfere with that part of church management which concerns the spiritual welfare and discipline of the members, but only when rights of property are involved (Prickett v. Wells, 117 Mo. 502, 24 S.W. 52; State [Livingston, Prosecutor] v. Trinity Church, 45 N.J.L. 230). The jurisdiction of a civil court to adjudge any ecclesiastical matter must result as a mere incident to the determination of some property right. Nance v. Busby, 91 Tenn. 303, 18 S.W. 874, 15 L.R.A. 801. In this state the same rule pertains. In Wheelock v. First Presbyterian Church, 119 Cal. 477, 51 P. 841, the court holds that the division and apportionment of the property of the church is a matter for the civil courts, and that an ecclesiastical decree upon that subject is not binding upon legal tribunals, but that the decree of the presbytery, dissolving the original church into two new and independent organizations, is conclusive on all parties, and must be so treated by the civil courts in determining the property rights of the parties.’ Church of Christ of Long Beach v. Harper, 83 Cal.App. 41, 46–47, 256 P. 476, 478.

It follows that a secular court has no jurisdiction to make and enforce a judgment directing the manner in which the officers, boards, and congregation of a church shall proceed in the matter of hearing and disposing of charges against the pastor. Maxwell v. Brougher, 99 Cal.App.2d 824, 826–827, 222 P.2d 910. Of course, a person's status as pastor, or not, is appropriate for judicial inquiry, when the trustees of a church claim he has lost one of the minimum qualifications for the position of pastor, has organized a new and different church, and is conducting services for the new church in the edifice dedicated and belonging to the old church, for property rights over which the secular courts have jurisdiction are then involved. Dyer v. Superior Court, 94 Cal.App. 260, 271 P. 113. The Maxwell and Dyer cases are in line with the authorities elsewhere. Judicial aid or interference is denied in a controversy over a pastorate when no civil or property rights (such as the right to a salary or to the use of a parsonage) are involved. State v. Bibb Street Church, 84 Ala. 23, 4 So. 40; Union Church of Africans v. Sanders, 1 Houst., Del., 100, 63 Am.Dec. 187; Rector, etc. of St. James Church v. Huntington, 82 Hun 125, 31 N.Y.S. 91; Travers v. Abbey, 104 Tenn. 665, 58 S.W. 247, 51 L.R.A. 260. When civil or property rights are involved, it becomes a justiciable controversy. Runkel v. Winemiller, 1799, 4 Har. & McH., Md., 429, 1 Am.Dec. 411, which involved the use of a parsonage, an annual salary of eighty pounds, and eighteen cords of wood a year.

No decision has been brought to our attention, nor have we found any, which sanctions the holding of a church election by a secular court to select or discharge a pastor, whether civil or property rights be involved or not. Respondents cite Kniskern v. The Lutheran Churches of St. John and St. Peter (N.Y.), 1 Sandf.Ch. 439, and People ex rel. Fleming v. Hart, 36 N.Y.St.Rep. 874, 13 N.Y.S. 903. But the elections there involved were for the selection of vestrymen, not the choosing of a pastor. In the Kniskern case, the court was confronted with the problem of ascertaining and declaring the purposes for which certain property and funds had been given in trust (the propagation of certain doctrines) and to prevent the diversion thereof to uses destructive to those purposes. The vestrymen were the trustees and as such were deemed subject to the jurisdiction of the court. The Hart case was a quo warranto proceeding in which the election of certain vestrymen was declared illegal and the court appointed a referee to supervise an election to fill the vacancies. The reviewing court stated that under ordinary circumstances such would not be done but deemed the facts of the case peculiar, as justifying the action taken. Whether the Kniskern and the Hart cases would be regarded in New York as furnishing sound precedents today, need not be ascertained for the purpose of a decision in the case now before us. Neither of these two New York cases is persuasive of the view that in our state a civil court has jurisdiction to conduct a church election to decide whether or not a pastor shall be discharged solely an ecclesiastical function.

Respondents place some reliance upon Zion Methodist Episcopal Church v. Hillery, 51 Cal. 155. That case involved a controversy as to who were the trustees of the church corporation. As trustees they were charged with the management of the church properties, hence not strictly or solely ecclesiastical officers of the church. Also, we derive from the decision no suggestion that a secular court could or should undertake the supervision of an election for the selection or discharge of such trustees, certainly no sanction for a secular court to conduct an election for the discharge or retention of a pastor.

Respondents also invoke section 2238 of the Corporations Code, claiming it is made applicable to a religious corporation by the provisions of section 9002 of that code. Section 2238, concerning members of the board of directors of a corporation, declares that ‘the court may determine the person entitled to the office of director or may order a new election to be held or appointment to be made, and direct such other relief as may be just and proper.’ That, at most, bears upon the selection of a member of the board of directors or trustees of a church corporation in an action brought by shareholders or members, pursuant to section 2236 of the code, to determine the validity of the selection of a corporation director. Section 2238 has nothing to do with the selection, discharge, or retention of a strictly ecclesiastical officer of a church, such as its pastor. We must bear in mind that a church does not lose its ecclesiastical function, and the attributes of that function, when it incorporates. It does not, by incorporating, lose its right to be governed by its own particular form of ecclesiastical government. Incorporation operates merely to create a legal entity to hold and administer the properties of the church. Wheelock v. First Presbyterian Church, 119 Cal. 477, 485–486, 51 P. 841.

Respondents also argue that the trustees of the church corporation have not authorized the appearance of the corporation as a petitioner in this proceeding. That question is not presented for determination herein. Neither the return to the alternative writ of prohibition nor the general demurrer to the petition for the writ presents that question. Besides, there can be no doubt of the right of the other petitioner, pastor F. B. Banks (the defendant in the action pending in the respondent court) to appear herein and invoke the processes of this court.

A peremptory writ should issue prohibiting the respondent court from proceeding to hold the election provided for in the interlocutory decree heretofore rendered by that court in the action now pending therein, an action entitled Providence Baptist Church of San Francisco, a non-profit corporation, et al., plaintiffs, v. F. B. Banks, defendant, and numbered 401059 upon the files of respondent court.

It is ordered that a peremptory writ of prohibition issue restraining the respondent court from proceeding to hold the election described.

FRED B. WOOD, Justice.

PETERS, P. J., and BRAY, J., concur.