Stubbs v. Vestry of St. John's Church , 96 Md. 267 ( 1902 )

This is an application by bill in equity for an injunction to restrain the defendants, who are the appellees in this Court, from hindering the plaintiff, who is the appellant, in the exercise of his office as rector of Saint John's Protestant Episcopal Church and from debarring him from access to said church. The injunction prayed for was refused and the bill of complaint was dismissed. From that order the appeal now before us was taken. The question is: "Does the case made by the allegations of the bill entitle the appellant to the relief which he seeks?"

The bill avers that "the Vestry of Saint John's Church, Huntingdon, Baltimore County," was incorporated under the Act ofAssembly of 1802, ch. 111: That on October the first, eighteen hundred and seventy-nine, the appellant was "appointed," in pursuance of the ninth clause of the Articles of Incorporation, rector of Saint John's Church at an annual salary of fifteen hundred dollars with the right of occupancy of the rectory rent free, and the use of the library and furniture therein, and that he has held that office ever since and is a a lawful member of the "corporation or vestry," and is the president thereof, and has control of the church edifice with the right of ingress and egress for the purpose of celebrating the rites and ceremonies prescribed by the canons of the Protestant Episcopal Church of the Diocese of Maryland. That on May the twenty-second, nineteen hundred and two, the vestrymen attempted by a resolution to remove the appellant from the office of rector without any action of the congregation and without any notice to the congregation convening a meeting for such purpose; that the appellant believing himself entitled to hold the said office of rector of the said church and president of the said corporation until removed by the congregation itself, according to the laws of this State, declined to recognize the legal authority of the vestrymen to oust him from his office; and that even if the vestry had the power to remove him the attempt to do so would be against equity for as much as his salary was largely in arrear and he did not receive any reasonable and timely notice of their intention to sever his relation as rector of said church and the congregation worshipping therein. The bill further alleges that the appellant has been informed and believes that the vestrymen have threatened and are about to take proceedings to bar him from exercising his rights and duties as rector of said church. The prayer is for an injunction as already stated. Accompanying the bill as an exhibit, and therefore forming part of it, was a copy of the Articles of Incorporation of the vestry of Saint John's Church.

It may not be amiss to observe at the outset that this controversy does not involve any ecclesiastical question or any question of ecclesiastical law; but it concerns the construction of an Act of Assembly and the charter or constitution of St. John's Church; and has relation to nothing more than a discussion of the ordinary powers of a private corporation. Keeping this fact in view there are two fundamental inquiries presented, and the solution of them will dispose of the case. First. Who constitute the corporation — the members of the congregation or the vestrymen? Secondly. What are the powers of the body corporate with respect to the appointment and removal of a rector, and incidentally as included therein, what are the rights of the rector under such an appointment as is stated in the bill?

Since the decision by the Chancellor in Bethel Church v.Carmack, 2 Md. Ch. Dec. 143, and by this Court in Tartar etal. v. Gibbs et al., 24 Md. 323, it must be regarded as finally settled that the vestry and not the congregation is the body corporate. Indeed, this is made obvious by the terms of the Act of 1802, ch. 111. In the case last cited this Court said: "The Act of 1802, ch. 111, entitled ``an Act to incorporate certain persons in every Christian Church or congregation in this State' does not as in some other States incorporate the congregation or society, but provides ``that in every Christain Church or congregation, etc., there shall be and remain sufficient power and authority, in all male persons above twenty-one years of age, belonging to any such church, etc., to elect at their discretion, certain sober and discreet persons, not less than five nor more than thirteen, which persons so elected shall be and are hereby constituted a body politic or corporate upon being registered as hereinafter directed, to act as trustees in the name and behalf of the particular church for which they are chosen and to manage the estate, interest and property of the same in the most upright manner, and shall have perpetual succession and shall by their name of incorporation have power to sue and be sued.' * * * * * The persons elected under the Act of incorporation, constitute a body politic and as such act as trustees holding the estate in perpetual succession,c." By the sixth Article of the certificate or deed of incorporation, as it is called, it is declared: "The corporation or vestry of the church shall consist of the minister for the time being, who shall be called the rector, and eight laymen, who shall be called vestrymen, and the name of the corporation shall be ``The Vestry of St. John's Church, Huntingdon, Baltimore County.'" Pursuant to the statute eight members of the congregation were elected in eighteen hundred and forty-four as vestrymen and they executed the deed of incorporation, and the succession has been kept up by an annual election of four members as provided for in the seventh clause of the charter. These vestrymen and not the members of the congregation constitute the corporation. The title of the Act of 1802, ch. 111, declares that the Act was passed, not to incorporate congregations, but to incorporate certain persons in every congregation; and the first section provides in clear terms that the power residing in the congregation shall be the power to elect certain sober and discreet persons, "which persons so elected shall be and are hereby constituted a body politic orcorporate upon being registered" as therein directed. It would do violence to the plain language of the statute and would overrule the explicit decisions in 2 Md. Ch. Dec., and 24 Md.R., were it now held that the congregation and not the vestry is the body corporate.

Secondly. As to the powers of the body corporate with respect to the appointment and removal of the rector. By the ninth clause of the deed of incorporation it is provided: "The vestry shall have power to appoint the rector; to fill up vacancies in their own body; to appoint church wardens and other officers of the church; and to perform all offices and duties which belong to a vestry or the vestrymen by virtue of the constitution, canons or usages of the Protestant Episcopal Church in the United States of America, c." Here, then, is a distinct power conferred in express terms upon the vestry to appoint the rector. Where does the power to remove him reside? Inasmuch as his appointment is a corporate act, his removal must also be, unless expressly otherwise provided. But the congregation is not the corporation and obviously, therefore, the congregation cannot exercise the corporate act of removal unless expressly empowered to do so. Speaking generally it is an accepted principle of law applicable to private corporations, that the power to appoint to an office included the power to remove the incumbent so appointed, unless the power of removal is expressly lodged in some other body. "Where the officer holds during the pleasure of the appointing power, or where the power to remove is discretionary the power to appoint carries with it the right of amotion by the appointing officer or board, which may be exercised without notice or hearing." 2 Am. Eng. Ency. L. (2d ed.), 314 and cases in note 1; Ex parte Hennen, 13 Pet. 230. If we had, then, nothing before us but the ninth clause of the charter, it would be indisputable that the vestry which is entrusted with the sole power of appointing the rector, is likewise clothed with the exclusive right to remove him. But there are other clauses of the charter, which by a process of exclusion make this position morally certain. The power to remove must vest somewhere, for it cannot be assumed or conceded that it does not exist at all. If it does not abide in the appointing body, either by express grant or as an incident of the power to appoint, it must be found outside of that body. It is not pretended by the appellant that the power to remove has been committed to any other body than the congregation. Now, if that power resides in the congregation it must so reside by reason of there being an express delegation of it to the congregation, because the congregation is a mere aggregation of individuals incapable of exercising any corporate act and possessing no authority to do an act for the corporation unless expressly empowered to perform it. The rights which the Act of 1802, ch.111, and the charter reserve to the congregation are extremely limited. The congregation is given the right to elect the incorporators and their successors; the right to adopt a constitution, to alter and amend the same and to inspect the books of the body corporate. The seventh article of the charter after naming the first vestrymen proceeds to provide for the election of their successors and declares that "they," the members of the congregation "or such of them as may assemble shall by a majority of votes, put out four of the eight vestrymen, whom they please, and shall immediately thereafter elect by ballot four vestrymen from among the persons qualified to vote, including those whom they have voted out, all or any of whom they may re-elect; and such persons, so chosen, with the remaining vestrymen and the rector shall be the vestry for the ensuing year." Now, as the eight vestrymen must be laymen, and as the only members of the vestry whom the congregation can vote out are, each year, four of the eight laymen, it of course necessarily follows that the ninth member, who is the rector, and therefore a clergyman, cannot be voted in or voted out by the congregation. By expressing declaring that the lay members of the vestry can be voted out by the congregation, the power to vote any one else out is denied to the congregation; and consequently the right to remove the rector has not only not been conferred upon the congregation, but has been withheld from it. It follows, then, that the power to remove the rector is confided to the body corporate — that is, to the vestry; and the only remaining inquiry is as to the rights of the appellant under his original appointment.

The appellant was not chosen for a definite or fixed term. He was simply appointed rector. Neither the statute law nor the charter prescribes the duration of his term. Such an appointment is at will and may be ended upon reasonable notice. "There can be no doubt that, in this country, the rule is, an indefinite hiring is prima facie a hiring at will. * * * * It is competent for the parties to show what the mutual understanding was, but unless there was a mutual understanding, it is only an indefinite hiring." McCullough Iron Co. v. Carpenter, 67 Md. 557. The notice of removal was reasonable. The bill does not allege that the appellant had no notice of the meeting of the vestry which was held on May the twenty-second, nineteen hundred and two. On that day a resolution was adopted terminating the relation of the appellant as rector to take effect on July the thirty-first following, and on the day of its adoption a copy of the resolution was transmitted to the appellant. A shorter notice was held sufficient in Bartlett v. Hipkins, 76 Md. 5. The relation of the appellant to the vestry was a contractual one. His employment was at the will of the vestry. He had no vested right to the office or its incidents and was consequently not entitled to notice that the question as to the severing of that relation would be considered by the vestry. The case at bar is wholly unlike Weber et al. v. Zimmerman, 22 Md. 156. There the power of removal was vested in the congregation and the constitution of the church provided that a call for a meeting of the congregation should give information of the object of the meeting. This requirement was not observed and consequently the action of the congregational meeting in removing Mr. Zimmerman, the pastor, was irregular and void. That is the distinct ground on which the decision is put though there are some general observations in the opinion with respect to the right of amotion that would require examination and perhaps qualification if they affected the correctness of the judgment pronounced.

After a careful consideration of the record we are satisfied that the lower Court was right in refusing to grant the injunction asked for and its action will be affirmed.

Order affirmed with costs.

(Decided January 16th, 1902.)