|
16 How. 288,
14 L.Ed. 942, 3 Ohio F.Dec. 119
U.S.
Supreme Court
WILLIAM
A. SMITH AND OTHERS,
v.
LEROY
SWORMSTEDT AND OTHERS.
57
U.S. 288
December
Term, 1853
THIS
was an appeal from the Circuit Court of the United States
for the District of Ohio, which dismissed the bill.
The
bill was originally filed in the names of Henry B. Bascom,
*289 a citizen of Lexington, in the State of Kentucky;
Alexander L. P. Green, a citizen of Nashville, in the State
of Tennessee; Charles B. Parsons, a citizen of Louisville,
in the State of Kentucky; John Kelly, a citizen of Wilson
county, in the State of Tennessee; James W. Allen, a citizen
of Limestone county, in the State of Alabama; and John Tevis,
a citizen of Shelby county, in the State of Kentucky----
Against
Leroy Swormstedt and John H. Power, agents of the 'Book
Concern' at Cincinnati, and James B. Finley, all of whom
are citizens of the State of Ohio; and George Peck and Nathan
Bangs, who are citizens of the State of New York; who are
made defendants to this bill.
Bascom,
Green, and Parsons were commissioners appointed by the Methodist
Episcopal Church South, to demand and sue for the proportion
belonging to it of certain property, and especially of a
fund called the 'Book Concern.' Bascom having died whilst
the suit was pending, William A. Smith, a citizen of Virginia,
was substituted in his place. The other plaintiffs were
supernumerary and superannuated preachers, belonging to
the travelling connection of the said church south; and
all the plaintiffs were citizens of other States than Ohio,
and sued not only for themselves but also in behalf of all
the preachers in the travelling connection of the church
south, amounting to about fifteen hundred.
The
defendants were Swormstedt and Power, agents of the Book
Concern at Cincinnati, and Findley, all travelling preachers
of the Methodist Episcopal Church, and citizens of Ohio;
and the Methodist Book Concern a body politic, incorporated
by an act of the General Assembly of Ohio, and having its
principal office at Cincinnati, in that State.
The
nature of the dispute and the circumstances of the case
are set forth in the opinion of the court.
West
Headnotes
Equity
k97
150k97
Federal
Civil Procedure k161
170Ak161
It
is a well-established rule in equity that where the parties
interested are numerous, and the suit is for an object common
to them all, some of the body may maintain a bill on behalf
of themselves and the others. So a bill may be maintained
against a portion of a numerous body of defendants
representing a common interest.
Parties
k35.1
287k35.1
(Formerly
287k12)
Parties
k35.11
287k35.11
(Formerly
287k23, 287k22)
Where
some 1500 persons were represented by the complainants and
nearly 3800 by the defendants, there was no want of proper
parties to maintain suit because of failure to make all
of those individuals parties thereto.
Parties
k35.13
287k35.13
(Formerly
287k23, 287k22, 287k12)
Where
a few are permitted to sue and defend on behalf of many
by representation, care must be taken that persons are brought
on the record fairly representing the interests or rights
involved, so that it may be fully and honestly tried.
Religious
Societies k11
332k11
It
was within the powers of the general conference of the Methodist
Episcopal Church, in the United States, to adopt the plan
of 1844, for the separation of the church.
Religious
Societies k11
332k11
The
sixth restrictive article of 1808 on the powers of the General
Conference of the Methodist Episcopal Church provided that
the General Conference should not appropriate the profits
of certain property, known as the "Book Concern," to any
other purpose than for the benefit of the traveling ministers.
One of the resolutions of 1844 recommended to all annual
conferences to authorize a change in said article. Held,
that this was not imposed as a condition of separation of
the church into two parts, but merely a plan to enable the
General Conference to carry out its purpose to divide the
church.
Religious
Societies k23(2)
332k23(2)
The
action of the Methodist Episcopal Church of the United States,
at general conference, in passing resolutions for a distinct
organization in the slave- holding states, if the annual
conferences of those states should deem the measure expedient,
being a division, and not a secession, neither division
lost its interest in the common property.
Religious
Societies k23(4)
332k23(4)
The
Methodist Episcopal Church of the United States having at
a general conference provided for a distinct organization
in the slave-holding states in case the annual conferences
of those states should deem it expedient, and those conferences
having decided that the measure was expedient, and organized
a separate community, the division of the joint property
by a court of equity would follow as a matter of course.
Religious
Societies k23(4)
332k23(4)
The
Methodist Episcopal Church South, being an organization
resulting from a regular and legal division of the Methodist
Episcopal Church, and not from a secession, is entitled
to a division of the property known as the "Book Concern,"
belonging to the general church at the time of the division;
such property being the result of the labor and accumulation
of all the ministers.
Religious
Societies k25
332k25
Commissioners
appointed by the Methodist Episcopal Church South might
file a bill in chancery in behalf of themselves and those
whom they represent, against the Book Concern belonging
to the general church at the time of its division North
and South, seeking a division of the property of the concern.
*289
It was argued by Mr. Stanberry, for the appellants,
and by Mr. Badger and Mr. Ewing, for the appellees.
The
following extract from the brief of Mr. Stanberry
explains the points which he made.
We
claim, in the first place, that the division of the church
was a valid act, and thereby the original church was divided
into two churches equally legitimate, and that the members
and beneficiaries in each have equal rights to their distributive
share of all the property and funds.
Secondly.
That if there was no valid division of the original church,
but only a separation of the southern portion from the original
church, yet, under the circumstances in which it was
*290 made, the beneficiaries of this charity have not
lost that characby adhering to the church south, because
the separation was authorized by the highest official and
legislative authority of the church, and the beneficiaries
living in the south had no choice or alternative but adherence
to that church or the total loss of all church membership
and privileges.
We
will discuss these propositions in the order in which they
are stated, and as they are elaborated under the following
points:
The
plaintiffs' points. 1. Prior to 1844 the Methodist Episcopal
Church in the United States was one church in doctrine and
organization. It was one in doctrine as a Methodist Church,
and one in organization as the Methodist Church in the United
States, with jurisdiction coextensive with the territorial
limits of the United States.
2.
At the present time there is no such church de facto
as to unity of organization, as the Methodist Episcopal
Church of 1844. There is no longer one Methodist Episcopal
Church with territorial jurisdiction coextensive with the
United States, but there are two churches instead, divided
in territorial jurisdiction by a fixed line, each existing
by an independent organization, exclusive of the other.
3.
This dissolution of the unity of organization not only exists
de facto but de jure; not by unauthorized secession
of a part from the original body, but by a valid division
of the original body into two parts equally legitimate,
which division was authorized by competent authority, in
the plan of 1844, and has since been consummated in accordance
with its provisions.
4.
The Book Concern is a charitable fund connected with the
Methodist Episcopal Church, the capital being devoted to
the publication and dissemination of religious books and
papers, and the profits to the support of the travelling,
supernumerary, superannuated, and deficient preachers of
the church, and the wives, widows, children, and orphans
of travelling preachers.
5.
This fund was founded by the travelling preachers, and chiefly
accumulated by their labor. It never belonged to the church
in absolute right, but was simply intrusted to its management.
6.
Before the division of the church the founders and the beneficiaries
of this fund were scattered over its entire territory, as
then constituted, and equally labored in its accumulation,
and were equally entitled to its dividends, without reference
to particular territorial location.
7.
The lawful division of the church, territorially, into two
distinct churches, did not destroy this charity or affect
the right of the beneficiaries, but it necessarily required
a change of management, which, before the devision, was
by means of a *291 General Conference, having jurisdiction
over all classes of the beneficiaries, wherever located,
through the agency of annual conferences within the jurisdiction
and subject to the control of the General Conference.
8.
After such division, in the due administration of this charity,
and as near as may be to its original foundation, each of
the churches becomes the proper manager of so much of the
fund as is to be distributed to the beneficiaries within
its exclusive jurisdiction, through the agency of its own
annual conferences.
9.
That the division to be made of the capital and profits
of this fund to each church should be made on the basis
of the number of travelling preachers in 1844, each church
to have the same proportion of the entire fund as the number
of travelling preachers within its bounds bore to the whole
number then within the entire territory of the church prior
to the division.
10.
That the refusal of the annual conferences to agree to the
amicable division of the fund, as proposed in the plan of
1844, and the continued refusal of the authorities of the
northern church to recognize the church south, or the beneficiaries
within its jurisdiction, as entitled to the management or
any distributive share of the fund, make a case for the
interposition of a court of equity.
11.
If the division of the church was not a constitutional act,
the beneficiaries within the jurisdiction of the church
south, and who are now united to that church, have not forfeited
their right to this charity.
12.
The bill presents the proper parties and the proper case
for the interference of this court, in order to the due
administration of this charity, to meet the exigency arising
out of the division of the church, whether the division
was constitutional or not.
(Mr.
Stanberry's argument, both in the opening and in the reply,
was very elaborate upon all these points, and therefore
cannot be reported for want of room. His view of the contingent
nature of the resolutions of 1844, was as follows:)
I will
here close the argument upon this question of the power
of division, having shown its existence in every aspect--having
shown it upon the true character of all Methodist organization,
upon the usage of the church through all its history, and,
finally, upon the express provisions and limitations embodied
in the written articles.
If
this ground is maintained, the division of the common charitable
fund is a necessary result. If the church organization is
divided, the temporalities of the church must also be divided,
for the right of each of the divisions stands upon the same
*292 ground--one claims it precisely in the same character
with the other.
Various
objections are stated in the answer, and in the resolutions
of the conference of the church north, in 1848, to the present
validity of the plan of division. They say, as it passed
the General Conference, it was not absolute, but contingent
in many particulars. That it was passed to meet the contingency
of a future ascertained necessity for division, and that
no such necessity was found to exist; that it was made to
depend, in all its parts, upon the concurrence of all the
annual conferences in the proposed change of the sixth restrictive
rule, and no such concurrence was given; and, finally, that
it depended upon the due observance by the church south,
and all its societies and members, of the jurisdictional
line of division, which line was afterwards, as they say,
invaded and disregarded by some of the southern preachers
and members.
None
of these positions need be argued, except only the matter
of the non- concurrence of the annual conferences in the
proposed change of the sixth rule.
That
part of the plan of separation which respects this matter
has nothing to do with the other parts of the plan, or with
the taking effect of the plan as a whole. The principal
thing, the division, was not in any way referred to the
northern annual conferences. That was a matter exclusively
between the General Conference and the southern annual conferences,
in which the northern conferences had no voice. In order
to provide for the contingency of division-- seeing that
the division of the fund must follow--and to avoid any doubt,
the General Conference asks the annual conferences for express
authority, not merely to divide the fund according to the
division of the church organization, but for general authority
to dispose of the entire fund for such purposes in general,
as two thirds of the General Conference might determine
upon.
This
general authority, which would sanction a total misapplication
of the fund, the annual conferences refused to give.
Now,
the plan in no way provides that the southern conferences
should not have any of this fund, except by the consent
of the annual conferences; but, in the exercise of its own
discretion, by its own authority, and as its own act, the
General Conference chose to ask the annual conferences so
to modify the restrictive rule. The annual conferences refused,
and that leaves the matter at large, as a question to be
settled upon the rights of the parties consequent on the
division. If after the division the south had no right to
any part of this fund--if it had forfeited its right by
the new organization--if the beneficiaries at the south
had thereby lost their character as beneficiaries, *293
then, indeed, there would be some ground for putting us
to show a new title by the consent of the annual conferences,
or something else. But the ground on which we stand is,
that we have never for a moment lost our character as beneficiaries;
that our title is equal to that of the north; and that the
refusal of the annual conferences is the common case of
a refusal to perform a duty which drives the injured party
into a court of justice.
The
points made by the counsel for the appellees, were the following:
1.
The first point was in answer to the one raised by Mr. Stanberry,
namely, that the church was dissolved and destroyed by the
action of the General Conference of 1844, and that two new
churches have arisen out of its ruins.
In
answer to the first two propositions of the complainants,
involving this point, the defendants insist----
1st.
That prior to 1844 the Methodist Episcopal Church was the
only religious denomination bearing that name, and it was
one in organization, discipline, and doctrine. A large part,
but not the whole territory of the United States, was contained,
within its organization--it did not extend to the United
States' possessions on the Pacific; it did embrace Texas,
then a foreign country; it had been extended, but it did
not then extend to the Canadas; its boundaries had been
variable, and its identity or unity, its organization or
existence, had no necessary dependence upon territorial
limits.
2d.
From 1844 to the present time, the same Methodist Episcopal
Church has continued to exist identical in name, organization,
discipline, and doctrine, and under a regular succession
of the same officers: some conferences in the slaveholding
States have withdrawn from it; it has lost and gained individual
members; and the United States' possessions on the Pacific
have been received into its connection; but these changes
have not affected its organization or destroyed its identity.
2.
With respect to the property called the 'Book Concern,'
(after examining the constitution of this fund, the counsel
came to the following conclusions:)
I take
it then as clear, by proof and by concession, that a Methodist
Episcopal Church, having a regular and well known organization,
existed prior to 1844, and that the property now in controversy
was held by trustees, in trust for the church so organized,
and for certain specified beneficiaries in it, and that
it was only through connection with the church, in and through
its organization, in a mode pointed out by its organic law,
*294 that any individual was or could be entitled to
any portion of the fund.
I hold
it equally clear, and of like necessity it must be conceded,
that if the Methodist Episcopal Church of 1844 still exists,
and retains its identity, the trustees still hold the property
in trust for it only, and that it is by connection with
it as an organized body, and by and through it alone, that
any individual is now entitled as a beneficiary, unless
indeed the church has by compact, or some equivalent act,
qualified the condition of the trust, and changed its direction;
and that no individual members of the church, or any section
of it, large or small, could by mere secession entitle himself
or themselves to any portion of the trust fund, separate
from and independent of the organized, still subsisting
church.
3.
Then, to entitle these complainants to recover, they must
establish as facts:
1st.
That the Methodist Episcopal Church, as it existed in and
prior to 1844, was destroyed by the acts of the General
Conference of 1844--or by the act of the Louisville Convention
of 1845, in the exercise of power conferred on it by the
General Conference--and thenceforth ceased to exist as an
organized body-- that out of a portion of its severed elements
a new church was formed, composed in part of individuals
who, under the former organization, were beneficiaries of
the fund, and that thus the expressed object of the charity,
as also its means of administration, having failed, there
being now no Methodist Episcopal Church to administer the
charity, and no travelling preachers, &c., of the Methodist
Episcopal Church to receive and enjoy it, a court of equity
will apply the charity, not according to its terms, which
is no longer possible, but cy. pres, as nearly as
possible according to its original object, and, to this
end, divide the fund pro rata between the fragments
of the defunct church.
2d.
Or that if the Methodist Episcopal Church of 1844 still
exists, some act by the General Conference of that year
has changed, in part, the direction of the fund and the
medium of its administration.
(After
discussing these propositions, the counsel came to the following
conclusions:)
We
find, then, on examining the bill and the book of Doctrine
and Discipline, which is filed with and made part of it,
1st.
That the General Conference is not, since 1808, an original
body possessed of inherent powers, but representative merely,
having no other powers than those conferred on it by the
constitution which created it.
2d.
That the general grant of powers to this conference *295
extends only to the making rules and regulations for the
Methodist Episcopal Church, not to the division, dissolution,
or destruction of the church.
3d.
That the restrictive articles forbid, by clear implication,
the division or destruction of the organized Methodist Episcopal
Church.
4th.
That under the sixth restrictive article the General Conference
cannot 'appropriate the produce of the Book Concern, nor
of the Charter Fund, to any purpose other than for the benefit
of the travelling, supernumerary, superannuated, and worn-out
preachers' of the Methodist Episcopal Church, within its
organization, 'their wives, widows, and children;' nor can
that conference by any act so involve the fund or place
it in such situation that a court of equity can apply it
to objects, or in a manner forbidden by the declaration
of trust and the constitution of the Methodist Episcopal
Church.
4.
We will now proceed to show that the General Conference
never assumed the power of destroying the organization of
the Methodist Episcopal Church, or of severing or dissolving
it, but as often as they have spoken distinctly upon the
subject, have disclaimed the power, and that they did not,
in the case at bar, exercise or attempt to exercise it.
(The
argument upon this point was very extensive, involving an
examination of the Canada case, and of the records of the
conferences, concluding as follows:)
It
is, then, so far as the thirteen southern and south-western
conferences are concerned, a case of voluntary withdrawal
from the Methodist Episcopal Church as organized, and the
formation of a new and separate organization; and I have
already shown, that if the withdrawal be small or great,
of one or many, the voluntary abandonment of the organized
church is also the voluntary surrender of all the temporal
privileges and immunities belonging to that organization.
And it is very clear that this trust-fund, which was intrusted
in its administration to the annual conferences of this
organization, cannot be transferred by a court of equity
to a conference which has ceased to belong to that organization,
any more than to one which never had belonged to it. The
southern conferences, now the Methodist Episcopal Church
South, cannot, therefore, sustain their bill on the ground
of former connection with the Methodist Episcopal Church,
and of their present separate existence; and I have already
shown that they cannot sustain it on the ground of contract.
It is equally clear that they cannot sustain it on the gound
that the General Conference of 1844 had caused the southern
conferences to believe that the Book Concern would be divided,
and induced them to act according to that belief. This point,
however good *296 in law, fails as a matter of fact.
There was no disguise, no concealment, no misrepresentation
on the part of the General Conference, but the most open
candor and directness; and the conferences south were fully
advised--indeed, they advised themselves--that, in case
of separation, a share of the Book Concern depended on the
votes of the annual conferences, and they agreed that it
did and should depend upon such vote. The church south,
therefore, in its new organization, has no standing in court.
The only remaining question which goes to the legal merits
of the case is:
5.
Do the individuals who join in this bill show any right
to a distributive share of this fund?
They
show that they 'are preachers--Kelley and Allen are supernumerary,
and Tevis superannuated preachers--of the Methodist Episcopal
Church South, and that as such they have a personal interest
in the real estate, personal property, debts, and funds
now holden by the Methodist Episcopal Church through said
defendants, as agents and trustees appointed by the General
Conference of the Methodist Episcopal Church.' So much for
themselves.
As
to those whom they choose to represent, they say, 'That
there are about fifteen hundred preachers belonging to the
travelling connection of the Methodist Episcopal Church
South, each of whom has a direct personal interest in the
same right as your complainants to the said property,' &c.
They
say they are members of the church south, preachers belonging
to the travelling connection of that church, and on that
ground, and that alone, they set up this claim. They do
not aver that they, or any one of them, or any one for whom
they appear, ever belonged to the Methodist Episcopal Church,
and acquired rights in its connection; but they simply claim
that, by virtue of their connection with the Methodist Episcopal
Church South, they are entitled to a distributive share
of the property of the Methodist Episcopal Church. The case
is certainly no better by making these persons complainants.
If the church south be not entitled, as an organized body,
on some ground shown in the bill, these persons are not
entitled because they are members of its organization.
The
case made by complainants' counsel for widows and orphans
of travelling preachers of the Methodist Episcopal Church,
who became entitled by the services of their husbands and
fathers, but who, since their death, have by the mere force
of circumstances been withdrawn from the Methodist Episcopal
Church, and attached to the church south, if available at
all, goes too far, entitles them to more than it has even
contended that they have a claim to. If their relation to
the Methodist Episcopal *297 Church be not so sundered
as to exonerate that church from their support, it is bound
to support them out of whatsoever fund may be in its power,
in common with the rest of its widows and orphans. They
are not entitled to a support out of the charter-fund and
the produce of the Book Concern, but out of the funds of
the various annual conferences of the Methodist Episcopal
Church into which the produce of the Book Concern enters,
and of which it forms a part merely, and, indeed, but a
small part. If entitled to any thing from the Methodist
Episcopal Church since they ceased to belong to it, it is
to their support, in whole or in part, according to their
necessities, not to a distributive share of the produce
of the Book Concern.
The
separation of those who have passively suffered by the secession
of so large a portion of the Methodist Episcopal Church
from its ancient organization, is greatly to be commiserated
and regretted, and the Methodist Episcopal Church is ready
and anxious, in any possible mode, to reach and relieve
them, for the still recognizes them as members. But she
cannot, consistently with her discipline, deliver any part
of her funds to another church, alien in organization, though
the same in faith, to be administered among them. Nor can
their necessities or their rights, if rights indeed they
have, bring in and entitle ninety-five who voluntarily seceded,
and who were active in secession, to come in and share in
the funds of the Methodist Episcopal Church, with the five
who were withdrawn from it by the mere force of circumstances.
But those who were passive in the separation, those who
did not withdraw, but who were withdrawn from the Methodist
Episcopal Church, are not before the court. The only individuals
here who claim as parties for themselves, and those standing
in a like situation, claim merely by virtue of their connection
with the church south, and do not profess to have ever been
members of the Methodist Episcopal Church.
This,
it appears to me, is the truth and reason of this branch
of the case; and if so, no equitable right arises in their
behalf. And this fund is not now wasted or scattered to
the winds. It is still applied strictly according to the
terms and intent of the trust, in the very way in which
the written declaration of the trust, known and understood
by all, directs it. Unhappily, some who enjoyed the benefit
of the fund are withdrawn from the sphere of its application;
others, perhaps, equally worthy and equally necessitous,
are brought within it. This case does not come within the
principle of any of the cases cited by counsel on the other
side, if the Methodist Episcopal Church has not been destroyed.
If it has, I admit the application of the cases. For while
that church exists it is a trustee, in its various organism,
to administer the charity, and the beneficiaries described
by the declaration of trust are to be found within its bosom.
The *298 trustee, the charity, the beneficiaries,
have not failed, but merely certain individuals have ceased
to be beneficiaries.
6.
Certain it is, that this separation took place either by
secession or by contract, the General Conference offering
terms of separation, and the southern conferences acceding
to them.
If
the latter be the case, the condition precedent to the distribution
of the charter-fund and Book Concern was also agreed upon;
namely, the consent of the annual conferences.
If
the southern conferences seceded without a contract, the
legal consequences of simple secession follow. Those I have
considered.
If
with a contract, that contract is the law of the secession.
And all that a court of equity can do is to compel the parties
to carry out the contract in good faith.
7.
The blame of the separation is cast by complainants on the
Methodist Episcopal Church. It is contended, that the secession
of the southern conferences was not only justified, but
compelled, by the continued agitation of the slavery question
in the northern annual conferences, and also in the General
Conference itself. And more especially, say they, it was
compelled by the illegal and oppressive acts of the General
Conference of 1844, in the cases of Harding and Bishop Andrew.
These matters of complaint I will now consider. And,
1st.
The agitation of the slavery question in the Methodist Episcopal
Church.
(The
argument upon this branch of the subject is omitted.)
Mr.
Justice NELSON delivered the opinion of the court.
This
is an appeal from a decree of the Circuit Court of the United
States for the District of Ohio.
The
bill is filed by the complainants, for themselves, and in
behalf of the travelling and worn out preachers in connection
with the society of the Methodist Episcopal Church South
in the United States, against the defendants, to recover
their share of a fund called the Book Concern, at the city
of Cincinnati, consisting of houses, machinery, printing-presses,
book-bindery, books, &c., claimed to be of the value
of some two hundred thousand dollars.
The
bill charges that, at and before the year 1844, there existed
in the United States a voluntary association unincorporated,
known as the Methodist Episcopal Church, composed of seven
bishops, four thousand eight hundred and twenty-eight preachers
belonging to the travelling connection, and in bishops,
ministers, and members about one million one hundred and
nine thousand nine hundred and sixty, united, and bound
together in one organized body by certain doctrines of faith
and morals, and by certain rules of government and discipline.
*299
That the government of the church was vested in one body
called the General Conference, and in certain subordinate
bodies called annual conferences, and in bishops, travelling
ministers, and preachers.
The
bill refers to a printed volume, entitled 'The Doctrines,
and Discipline of the Methodist Episcopal Church,' as containing
the constitution, organization, form of government, and
rules of discipline, as well as the doctrines of faith of
the association.
The
complainants further charge, that differences and disagreements
had sprung up in the church between what was called the
northern and southern members, in respect to the administration
of the government with reference to the ownership of slaves
by the ministers of the church, of such a character and
attended with such consequences as threatened greatly to
impair its usefulness, as well as permanently to disturb
its harmony; and it became and was a question of grave and
serious importance whether a separation ought not to take
place, according to some geographical boundary to be agreed
upon, so as that the Methodist Episcopal Church should thereafter
constitute two separate and distinct organizations. And
that, accordingly, at a session of the General Conference
held in the city of New York in May, 1844, a resolution
was passed by a majority of over three fourths of the body,
by which it was determined, that, if the annual conferences
of the slaveholding States should find it necessary to unite
in a distinct ecclesiastical connection, the following rule
should be observed with regard to the northern boundary
of such connection--all the societies, stations, and conferences
adhering to the church in the south, by a vote of a majority
of the members, should remain under the pastoral care of
the southern church; and all adhering to the church north,
by a like vote, should remain under the pastoral care of
that church. This plan of separation contains eleven other
resolutions relating principally to the mode and terms of
the division of the common property of the association between
the two divisions, in case the separation contemplated should
take place; and which, in effect, provide for a pro rata
division, taking the number of the travelling preachers
in the church north and south as the basis upon which to
make the partition.
The
complainants further charge that, in pursuance of the above
resolutions, the annual conferences in the slaveholding
States met, and resolved in favor of a distinct and independent
organization, and erected themselves into a separate ecclesiastical
connection, under the provisional plan of separation based
upon the discipline of the Methodist Episcopal Church, and
to *300 be known as the Methodist Episcopal Church
South. And they insist that, by virtue of these proceedings,
this church, as it had existed in the United States previous
to the year 1844, became and was divided into two separate
churches, with distinct and independent powers, and authority
composed of the several annual conferences, stations, and
societies, lying north and south of the aforesaid line of
division. And, also, that by force of the same proceedings,
the division of the church south became and was entitled
to its proportion of the common property real and personal
of the Methodist Episcopal Church, which belonged to it
at the time the separation took place; that the property
and funds of the church had been obtained by voluntary contributions,
to which the members of the church south had contributed
more than their share, and which, down to the time of the
separation, belonged in common to the Methodist Episcopal
Church, as then organized.
The
complainants charge, that they are members of the church
south, and preachers, some of them supernumerary, and some
superannuated preachers, and belonged to the travelling
connection of said church; and that, as such, have a personal
interest in the property, real and personal, held by the
church north, and in the hands of the defendants; and, further,
that there are about fifteen hundred preachers belonging
to the travelling connection of the church south, each of
whom has a direct and personal interest in the same right
with the complainants in the said property, the large number
of whom make it inconvenient and impracticable to bring
them all before the court as complainants.
They
also charge, that the defendants are members of the Methodist
Episcopal Church North; and that each, as such, has a personal
interest in the property; and further, that two of them
have the custody and control of the fund in question; and
that, in addition to these defendants, there are nearly
thirty- eight hundred preachers belonging to the travelling
connection of the church north, each of whom has an interest
in the fund in the same right, so that it is impossible,
in view of sustaining a just decision in the matter, to
make them all parties to the bill.
The
complainants also aver, that this bill is brought by the
authority, and under the direction of the general and annual
conferences of the church south, and for the benefit of
the same, and for themselves, and all the preachers in the
travelling connection, and all other ministers and persons
having an interest in the property.
The
defendants, in their answer, admit most of the facts charged
in the bill, as it respects the organization, government,
*301 discipline, and faith of the Methodist Episcopal
Church as it existed at and previous to the year 1844. They
admit the passage of the resolutions, called the plan of
separation, at the session of the General Conference of
that year, by the majority stated; but deny that the resolutions
were duly and legally passed; and also deny that the General
Conference possessed the competent power to pass them, and
submit that they were therefore null and void. They also
submit that, if the General Conference possessed the power,
the separation contemplated was made dependent upon certain
conditions, and among others a change of the sixth restrictive
article in the constitution of the church, by a vote of
the annual conferences, which vote the said conferences
refused.
The
defendants admit the erection of the church south into a
distinct ecclesiastical organization; but deny, that this
was done agreeably to the plan of separation. They deny
that the Methodist Episcopal Church, as it existed in 1844,
or at any time, has been divided into two distinct and separate
ecclesiastical organizations; and submit that the separation
and voluntary withdrawal from this church of a portion of
the bishops, ministers, and members, and organization into
a church south, was an unauthorized separation; and that
they have thereby renounced and forfeited all claim, either
in law or equity, to any portion of the property in question.
The defendants admit that the Book Concern at Cincinnati,
with all the houses, lots, printing-presses, & c., is
now and always has been beneficially the property of the
preachers belonging to the travelling connection of the
Methodist Episcopal Church; but insist that, if such preachers
do not, during life, continue in such travelling connection,
and in the communion, and subject to the government of the
church, they forfeit for themselves and their families all
ownership in, or claim to the said Book Concern, and the
produce thereof; they admit that the Book Concern was originally
commenced and established by the travelling preachers of
this church, upon their own capital, with the design in
the first place of circulating religious knowledge, and
that, at the General Conference of 1796, it was determined
that the profits derived from the sale of books should in
future be devoted wholly to the relief of travelling preachers,
supernumerary and worn out preachers, and the widows and
orphans of such preachers--and the defendants submit that
the Methodist Episcopal Church South is not entitled at
law or in equity to have a division of the property of the
Book Concern, or the produce, or to any portion thereof;
and that the ministers, preachers, or members, in connection
with such church are not entitled to any portion of the
same; and further, that being no *302 longer travelling
preachers belonging to the Methodist Episcopal Church, they
are not so entitled, without a change of the sixth restrictive
article of the constitution of 1808, provided for in the
plan of separation, as a condition of the partition of said
fund.
The
proofs in the case consist chiefly of the proceedings of
the General Conference of 1844, relating to the separation
of the church and of the proceedings of the southern conferences,
in pursuance of which a distinct and separate ecclesiastical
organization south took place.
There
is no material controversy between the parties, as it respects
the facts. The main difference lies in the interpretation
and effect to be given to the acts and proceedings of these
several bodies and authorities of the church. Our opinion
will be founded almost wholly upon facts alleged in the
bill, and admitted in the answer.
An
objection was taken, on the argument, to the bill for want
of proper parties to maintain the suit. We think the objection
not well founded.
The
rule is well established, that where the parties interested
are numerous, and the suit is for an object common to them
all, some of the body may maintain a bill on behalf of themselves
and of the others; and a bill may also be maintained against
a portion of a numerous body of defendants, representing
a common interest. Story's Eq. Pl. §§ 97, 98, 99, 103, 107,
110, 111, 116, 120; 2 Mitf. Pl. (Jer. Ed.) 167, 2 Paige
R. 19; 4 Mylne & Cr. 134, 619; 2 De Gex & Smale,
102, 122.
Mr.
Justice Story, in his valuable treatise on Equity Pleadings,
after discussing this subject with his usual research and
fulness, arranges the exceptions to the general rule, as
follows: 1. Where the question is one of a common or general
interest, and one or more sue or defend for the benefit
of the whole. 2. Where the parties form a voluntary association
for public or private purposes, and those who sue or defend
may fairly be presumed to represent the rights and interests
of the whole; and 3. Where the parties are very numerous,
and though they have or may have separate and distinct interests,
yet it is impracticable to bring them all before the court.
In
this latter class, though the rights of the several persons
may be separate and distinct, yet there must be a common
interest or a common right, which the bill seeks to establish
or enforce. As an illustration, bills have been permitted
to be brought by the lord of a manor against some of the
tenants, and vice versa, by some of the tenants in
behalf of themselves and the other tenants, to establish
some right--such as suit to a mill, or right of common,
or to cut turf. So by a parson of a *303 parish against
some of the parishioners to establish a general right to
tithes--or conversely, by some of the parishioners in behalf
of all to establish a parochial modus.
In
all cases where exceptions to the general rule are allowed,
and a few are permitted to sue and defend on behalf of the
many, by representation, care must be taken that persons
are brought on the record fairly representing the interest
or right involved, so that it may be fully and honestly
tried.
Where
the parties interested in the suit are numerous, their rights
and liabilities are so subject to change and fluctuation
by death or otherwise, that it would not be possible, without
very great inconvenience, to make all of them parties, and
would oftentimes prevent the prosecution of the suit to
a hearing. For convenience, therefore, and to prevent a
failure of justice, a court of equity permits a portion
of the parties in interest to represent the entire body,
and the decree binds all of them the same as if all were
before the court. The legal and equitable rights and liabilities
of all being before the court by representation, and especially
where the subject-matter of the suit is common to all, there
can be very little danger but that the interest of all will
be properly protected and maintained.
The
case in hand illustrates the propriety and fitness of the
rule. There are some fifteen hundred persons represented
by the complainants, and over double that number by the
defendants. It is manifest that to require all the parties
to be brought upon the record, as is required in a suit
at law, would amount to a denial of justice. The right might
be defeated by objections to parties, from the difficulty
of ascertaining them, or if ascertained, from the changes
constantly occurring by death or otherwise.
As
it respects the persons into whose hands the fund in question
should be delivered for the purpose of distribution among
the beneficiaries, in case of a division of it, we shall
recur to the subject in another part of this opinion.
We
will now proceed to an examination of the merits of the
case.
The
Book Concern, the property in question, is a part of a fund
which had its origin at a very early day, from the voluntary
contributions of the travelling preachers in the connection
of the Methodist Episcopal Church. The establishment was
at first small; but at present, is one of very large capital,
and of extensive operations, producing great profits. In
1796, the travelling preachers in General Conference assembled,
determined that these profits should be thereafter devoted
to the relief of the travelling preachers, and their families;
and, *304 accordingly resolved, that the produce
of the sale of the books, after the debts were paid, and
sufficient capital provided for carrying on the business,
should be applied for the relief of distressed travelling
preachers, for the families of travelling preachers, and
for supernumerary and worn out preachers, and the widows
and orphans of preachers.
The
establishment was placed under the care and superintendence
of the General Conference, the highest authority in the
church, which was composed of the travelling preachers;
and it has grown up to its present magnitude, its capital
amounting to nearly a million of dollars, from the economy
and skill with which the concern has been managed, and from
the labors and fidelity of the travelling preachers, who
have always had the charge of the circulation and sale of
the books in the Methodist connection throughout the United
States, accounting to the proper authorities for the proceeds.
The agents who have the immediate charge of the establishment
make up a yearly account of the profits, and transmit the
same to the several annual conferences, each, an amount,
in proportion to the number of travelling preachers, their
widows and orphans comprehended within it, which bodies
distribute the fund to the beneficiaries individually, agreeably
to the design of the original founders. These several annual
conferences are composed of the travelling preachers residing
or located within certain districts assigned to them; and
comprehended, in the aggregate, the entire body in connection
with the Methodist Episcopal Church. The fund has been thus
faithfully administered since its foundation down to 1846,
when the portion belonging to the complainants in this suit,
and those they represent, was withheld, embracing some thirteen
of the annual conferences.
In
the year 1844 the travelling preachers in General Conference
assembled, for causes which it is not important particularly
to refer to, agreed upon a plan for a division of the Methodist
Episcopal Church in case the annual conferences in the slaveholding
States should deem it necessary; and to the erection of
two separate and distinct ecclesiastical organizations.
And, according to this plan, it was agreed that all the
societies, stations, and conferences adhering to the church
south, by a majority of their respective members, should
remain under the pastoral care of that church; and all of
these several bodies adhering, by a majority of its members,
to the church north, should remain under the pastoral care
of that church; and, further, that the ministers, local
and travelling, should, as they might prefer, attach themselves,
without blame, to the church north or south. It was also
agreed that the common property of the church, including
*305 this Book Concern, that belonged specially to the
body of travelling preachers, should, in case the separation
took place, be divided between the two churches in proportion
to the number of travelling preachers falling within the
respective divisions. This was in 1844. In the following
year the southern annual conferences met in convention,
in pursuance of the plan of separation, and determined upon
a division, and resolved that the annual conferences should
be constituted into a separate ecclesiastical connection,
and based upon the discipline of the Methodist Episcopal
Church, comprehending the doctrines and entire moral, ecclesiastical,
and economical rules and regulations of said discipline,
except only so far as verbal alterations might be necessary;
and to be known by the name of the Methodist Episcopal Church
South.
The
division of the church, as originally constituted, thus
became complete; and from this time two separate and distinct
organizations have taken the place of the one previously
existing.
The
Methodist Episcopal Church having been thus divided, with
the authority and according to the plan of the General Conference,
it is claimed, on the part of the complainants, who represent
the travelling preachers in the church south, that they
are entitled to their share of the capital stock and profits
of this Book Concern; and that the withholding of it from
them is a violation of the fundamental law prescribed by
the founders, and consequently of the trust upon which it
was placed in the hands of the defendants.
The
principal answer set up to this claim is, that, according
to the original constitution and appropriation of the fund,
the beneficiaries must be travelling preachers, or the widows
and orphans of travelling preachers, in connection with
the Methodist Episcopal Church, as organized and established
in the United States at the time of the foundation of the
fund; and that, as the complainants, and those they represent,
are not shown to be travelling preachers in that connection,
but travelling preachers in connection with a different
ecclesiastical organization, they have forfeited their right,
and are no longer within the description of its beneficiaries.
This
argument, we apprehend, if it proves any thing, proves too
much; for if sound, the necessary consequence is that the
beneficiaries connected with the church north, as well as
south, have forfeited their right to the fund. It can no
more be affirmed, either in point of fact or of law, that
they are travelling preachers in connection with the Methodist
Church as originally constituted, since the division, than
of those in connection with the church south. Their organization
covers but about half of the *306 territory embraced
within that of the former church; and includes within it
but a little over two thirds of the travelling preachers.
Their general conference is not the general conference of
the old church, nor does it represent the interest or possess,
territorially, the authority of the same; nor are they the
body under whose care this fund was placed by its founders.
It may be admitted that, within the restricted limits, the
organization and authority are the same as the former church.
But the same is equally true in respect to the organization
of the church south.
Assuming
therefore that this argument is well founded, the consequence
is that all the beneficiaries of the fund, whether in the
southern or northern division, are deprived of any right
to a distribution, not being in a condition to bring themselves
within the description of persons for whose benefit it was
established: in which event the foundation of the fund would
become broken up, and the capital revert to the original
proprietors, a result that would differ very little in its
effect from that sought to be produced by the complainants
in their bill.
It
is insisted, however, that the General Conference of 1844
possessed no power to divide the Methodist Episcopal Church
as then organized, or to consent to such division; and hence,
that the organization of the church south was without authority,
and the travelling preachers within it separated from an
ecclesiastical connection which is essential to enable them
to participate as beneficiaries. Even if this were admitted,
we do not perceive that it would change the relative position
and rights of the travelling preachers within the divisions
north and south, from that which we have just endeavored
to explain. If the division under the direction of the General
Conference has been made without the proper authority, and
for that reason the travelling preachers within the southern
division are wrongfully separated from their connection
with the church, and thereby have lost the character of
beneficiaries, those within the northern division are equally
wrongfully separated from that connection, as both divisions
have been brought into existence by the same authority.
The same consequence would follow in respect to them, that
is imputable to the travelling preachers in the other division,
and hence each would be obliged to fall back upon their
rights as original proprietors of the fund.
But
we do not agree that this division was made without the
proper authority. On the contrary, we entertain no doubt
but that the General Conference of 1844 was competent to
make it; and that each division of the church, under the
separate organization, is just as legitimate, and can claim
as high a sanction, ecclesiastical and temporal, as the
Methodist Episcopal *307 Church first founded in
the United States. The same authority which founded that
church in 1784 has divided it, and established two separate
and independent organizations occupying the place of the
old one.
In
1784, when this church was first established, and down till
1808, the General Conference was composed of all the travelling
preachers in that connection. This body of preachers founded
it by organizing its government, ecclesiastical and temporal,
established its doctrines and discipline, appointed its
superintendents or bishops, its ministers and preachers,
and other subordinate authorities to administer its polity,
and promulgate its doctrines and teachings throughout the
land.
It
cannot therefore be denied, indeed, it has scarcely been
denied that this body, while composed of all the travelling
preachers, possessed the power to divide it and authorize
the organization and establishment of the two separate independent
churches. The power must necessarily be regarded as inherent
in the General Conference. As they might have constructed
two ecclesiastical organizations over the territory of the
United States originally, if deemed expedient, in the place
of one, so they might, at any subsequent period, the power
remaining unchanged.
But,
it is insisted, that this power has been taken away or given
up, by the action of the General Conference of 1808. In
that year the constitution of this body was changed so as
to be composed, thereafter, by travelling preachers, to
be elected by the annual conferences, in the ratio of one
for every five members. This has been altered from time
to time, so that, in 1844, the representation was one for
every twenty-one members. At the time of this change, and
as part of it, certain limitations were imposed upon the
powers of this General Conference, called the six restrictive
articles:--1. That they should not alter or change the articles
of religion, or establish any new standard of doctrine.
2. Nor allow of more than one representative for every fourteen
members of the annual conferences, nor less than one for
every thirty. 3. Nor alter the government so as to do away
with episcopacy, or destroy the plan of itinerant superintendencies.
4. Nor change the rules of the united societies. 5. Nor
deprive the ministers or preachers of trial by a committee,
and of appeal: nor members before the society, or lay committee,
and appeal. And 6. Nor appropriate the proceeds of the Book
Concern, nor the charter-fund, to any purpose other than
for the benefit of the travelling, supernumerary, superannuated,
and worn out preachers, their wives, widows, and children.
Subject to these restrictions, the delegated conference
possessed the same powers as when composed of the entire
body of preachers. *308 And it will be seen that
these relate only to the doctrine of the church, its representation
in the General Conference, the episcopacy, discipline of
its preachers, and members, the Book Concern, and charter-fund.
In all other respects, and in every thing else that concerns
the welfare of the church, the General Conference represents
the sovereign power the same as before. This is the view
taken by the General Conference itself, as exemplified by
the usage and practice of that body. In 1820 they set off
to the British Conference of Wesleyan Methodists the several
circuits and societies in Lower Canada. And in 1828 they
separated the Annual Conference of Upper Canada from their
jurisdiction, and erected the same into a distinct and independent
church. These instances, together with the present division,
in 1844, furnish evidence of the opinions of the eminent
and experienced men of this church in these several conferences,
of the power claimed, which, if the question was otherwise
doubtful, should be regarded as decisive in favor of it.
We will add, that all the northern bishops, five in number,
in council in July, 1845, acting under the plan of separation,
regarded it as of binding obligation, and conformed their
action accordingly.
It
has also been urged on the part of the defendants that the
division of the church, according to the plan of the separation,
was made to depend not only upon the determination of the
southern annual conferences, but also upon the consent of
the annual conferences north, as well as south, to a change
of the sixth restrictive article, and as this was refused,
the division which took place was unauthorized. But this
is a misapprehension. The change of this article was not
made a condition of the division. That depended alone upon
the decision of the southern conferences.
The
division of the Methodist Episcopal Church having thus taken
place, in pursuance of the proper authority, it carried
with it, as matter of law, a division of the common property
belonging to the ecclesiastical organization, and especially
of the property in this Book Concern, which belonged to
the travelling preachers. It would be strange if it could
be otherwise, as it respects the Book Concern, inasmuch
as the division of the association was effected under the
authority of a body of preachers who were themselves the
proprietors and founders of the fund.
It
has been argued, however, that, according to the plan of
separation, the division of the property in this Book Concern
was made to depend upon the vote of the annual conferences
to change the sixth restrictive article, and that whatever
might be the legal effect of the division of the church
upon the *309 common property otherwise, this stipulation
controls it and prevents a division till the consent is
obtained.
We
do not so understand the plan of separation. It admits the
right of the church south to its share of the common property,
in case of a separation, and provides for a partition of
it among the two divisions, upon just and equitable principles;
but, regarding the sixth restrictive article as a limitation
upon the power of the General Conference, as it respected
a division of the property in the Book Concern, provision
is made to obtain a removal of it. The removal of this limitation
is not a condition to the right of the church south to its
share of the property, but is a step taken in order to enable
the General Conference to complete the partition of the
property.
We
will simply add, that as a division of the common property
followed, as matter of law, a division of the church organization,
nothing short of an agreement or stipulation of the church
south to give up their share of it, could preclude the assertion
of their right; and, it is quite clear, no such agreement
or stipulation is to be found in the plan of separation.
The contrary intent is manifest from a perusal of it.
Without
pursuing the case further, our conclusion is, that the complainants
and those they represent, are entitled to their share of
the property in this Book Concern. And the proper decree
will be entered to carry this decision into effect.
The
complainants represent, not only all the beneficiaries in
the division of the church south, but also the General Conference
and the annual conferences of the same. The share therefore
of this Book Concern belonging to the beneficiaries in that
church, and which its authorities are entitled to the safekeeping
and charge of, for their benefit, may be properly paid over
to the complainants as the authorized agents for this purpose.
We
shall accordingly direct a decree to be entered reversing
the decree of the court below, and remanding the proceedings
to that court, directing a decree to be entered for the
complainants against the defendants; and a reference of
the case to a master to take an account of the property
belonging to the Book Concern, and report to the court its
cash value, and to ascertain the portion belonging to the
complainants, which portion shall bear to the whole amount
of the fund the proportion that the travelling preachers
in the division of the church south bore to the travelling
preachers in the church north, at the time of the division
of said church. And on the coming in of the report, and
confirmation of the same, a decree shall be entered in favor
of the complainants for that amount.
*310
Order.
This
cause came on to be heard on the transcript of the record,
from the Circuit Court of the United States for the District
of Ohio, and was argued by counsel. On consideration whereof
it is ordered, adjudged, and decreed by this court, that
the decree of said Circuit Court in this cause be, and the
same is hereby, reversed and annulled. And this court doth
further find, adjudge, and decree:
1.
That, under the resolutions of the General Conference of
the Methodist Episcopal Church, holden at the city of New
York, according to the usage and discipline of said church,
passed on the eighth day of June, in the year of our Lord
one thousand eight hundred and forty-four, (in the pleadings
mentioned,) it was, among other things, and in virtue of
the power of the said General Conference, well agreed and
determined by the Methodist Episcopal Church in the United
States of America, as then existing, that, in case the annual
conferences in the slaveholding States should find it necessary
to unite in a distinct ecclesiastical connection, the ministers,
local and travelling, of every grade and office, in the
Methodist Episcopal Church, might attach themselves to such
new ecclesiastical connection, without blame.
2.
That the said annual conferences in the slaveholding States
did find and determine that it was right, expedient, and
necessary to erect the annual conferences last aforesaid
into a distinct ecclesiastical connection, based upon the
discipline of the Methodist Episcopal Church aforesaid,
comprehending the doctrines and entire moral and ecclesiastical
rules and regulations of the said discipline, (except only
in so far as verbal alterations might be necessary to, or
for a distinct organization,) which new ecclesiastical connection
was to be known by the name and style of the Methodist Episcopal
Church South; and that the Methodist Episcopal Church South
was duly organized under said resolutions of the said General
Conference, and the said decision of said annual conferences
last aforesaid, in a convention thereof held at Louisville,
in the State of Kentucky, in the month of May, in the year
of our Lord one thousand eight hundred and forty-five.
3.
That, by force of the said resolutions of June the eighth,
eighteen hundred and forty-four, and of the authority and
power of the said General Conference of the Methodist Episcopal
Church as then existing, by which the same were adopted,
and by virtue of the said finding and determination of the
said annual conferences in the slaveholding States therein
mentioned, and by virtue of the organization of such conferences
into a *311 distinct ecclesiastical connection as
last aforesaid: the religious association known as the Methodist
Episcopal Church in the United States of America as then
existing, was divided into two associations, or distinct
Methodist Episcopal Churches, as in the bill of complaint
is alleged.
4.
That the property denominated the Methodist Book Concern
at Cincinnati, in the pleadings mentioned, was, at the time
of said division, and immediately before, a fund subject
to the following use--that is to say, that the profits arising
therefrom, after retaining a sufficient capital to carry
on the business thereof, were to be regularly applied towards
the support of the deficient travelling, supernumerary,
superannuated, and worn out preachers of the Methodist Episcopal
Church, their wives, widows, and children, according to
the rules and discipline of said church; and that the said
fund and property are held under the act of incorporation
in the said answer mentioned, by the said defendants, Leroy
Swormstedt and John H. Power, as agents of said Book Concern,
and in trust for the purposes thereof.
5.
That, in virtue of the said division of said Methodist Episcopal
Church in the United States, the deficient, travelling,
supernumerary, superannuated, and worn out preachers, their
wives, widows, and children comprehended in, or in connection
with, the Methodist Episcopal Church South, were, are, and
continue to be beneficiaries of the said Book Concern to
the same extent, and as fully as if the said division had
not taken place, and in the same manner and degree as persons
of the same description who are comprehended in, or in connection
with, the other association, denominated since the division
of the Methodist Episcopal Church; and that as well the
principal as the profits of said Book Concern, since said
division, should of right be administered and managed by
the respective general and annual conferences of the said
two associations and churches, under the separate organizations
thereof, and according to the shares or proportions of the
same as hereinafter mentioned, and in conformity with the
rules and discipline of said respective associations, so
as to carry out the purposes and trusts aforesaid.
6.
That so much of the capital and property of said Book Concern
at Cincinnati, wherever situate, and so much of the produce
and profits thereof as may not have been heretofore accounted
for to said church south, in the New York case hereinafter
mentioned, or otherwise, shall be paid to said church south,
according to the rate and proportions following, that is
to say, in respect to the capital, such share or part, as
corresponds with the proportion which the number of the
*312 travelling preachers in the annual conferences
which formed themselves into the Methodist Episcopal Church
South, bore to the number of all the travelling preachers
of the Methodist Episcopal Church before the division thereof,
which numbers shall be fixed and ascertained as they are
shown by the minutes of the several annual conferences next
preceding the said division and new organization in the
month of May, A. D. eighteen hundred and forty-five.
And
in respect to the produce or profits, such share or part
as the number of annual conferences which formed themselves
into the Methodist Episcopal Church South bore, at the time
of said division, in May, A. D. 1845, to the whole number
of annual conferences then being in the Methodist Episcopal
Church, excluding the Liberia Conference: so that the division
or apportionment of said produce and profits shall be had
by conferences, and not by numbers of the travelling preachers.
7.
That said payment of capital and profits, according to the
ratios of apportionment so declared, shall be made and paid
to the said Smith, Parsons, and Green, as commissioners
aforesaid, or their successors, on behalf of said church
south and the beneficiaries therein, or to such other person
or persons as may be thereto authorized by the General Conference
of said church south, the same to be subsequently managed
and administered so as to carry out the trusts and uses
aforesaid, according to the discipline of said church south,
and the regulations of the General Conference thereof.
8.
And in order more fully to carry out the matters hereinbefore
settled and adjudged, it is further ordered and decreed,
that this cause be remanded to the said Circuit Court for
further proceedings--that is to say,
That
the same be referred to a master to take and state an account
as follows:
(1.)
Of the amount and value of the said Book Concern at Cincinnati,
on the first day of May, 1845, and of what specific property
and effects (according to a general description or classification
thereof) the same then consisted, whether composed of real
or personal estate, and of whatever nature or description
the same may have been; and a similar account as of the
date or time when the said master shall take this account.
(2.)
Of the produce and profits of said Book Concern, from the
time of the General Conference of May, 1844, as reported
thereto, (if so reported,) up to the time of the said division
in May, 1845, and from the last-mentioned date down to the
time of making up his report: specifying how much of said
profits and produce have been transferred to said Book Concern,
at New York, and accounted for to said church south in the
*313 settlement of the case there; and how much remains
to be accounted for to said church south on the basis settled
by this decree.
And
in taking said accounts, and in the execution of said reference,
the said defendants shall produce, on oath, all deeds, accounts,
books of account, instruments, reports, letters, and copies
of letters, memoranda, documents, and writings, whatever
pertinent to said reference, in their possession or control,
and the said defendants may be examined, on oath, on the
said reference; and each party may produce evidence before
the master, and have process to compel the attendance of
witnesses.
And
the said master is further directed, in respect to any annual
profits of said concern, not heretofore accounted for to
said church south, to allow to said church south interest
at the rate of 6 per cent. upon such unpaid balances from
the date at which the same ought to have been paid.
And
in respect to all the costs in this case, including the
costs of the reference, and all other costs from the commencement
of the case until its conclusion, and in respect to the
fees of counsel and solicitors therein, of both parties,
so far as the same may be reasonable, and in respect of
just and necessary expenses, as well of plaintiffs as of
defendants in conducting the suit, the same ought to be
paid out of said Book Concern, and a common charge thereon,
before apportionment and division, and the master is accordingly
directed to allow and pay the same to the respective parties
entitled thereto, and then to apportion the residue according
to the principles fixed in this decree.
And
the master is further directed to return his report to the
said Circuit Court with all convenient despatch, which court
shall then proceed to enforce the payment of whatever sum
or sums may be found due to said church south, on the confirmation
of the master's report, in such instalments as may be by
said court adjudged reasonable, each party having due opportunity
of excepting to the master's report; and all questions arising
upon said report, and not settled by this decree, may be
moved before said Circuit Court, to which court either party
shall be at liberty to apply on the footing of this decree.
Reprinted from Westlaw with permission of Thomson/West. If you wish to check the currency of this case, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.
|
