Ruhbush v. Buss ( 1924 )

The following opinion was filed May 6, 1924:

Rosenberry, J.

The principal question raised upon this appeal is this: Was the corporation incorporated as a congregation of the Missouri synod and its property dedicated to the use of the Missouri synod ? It is to be noted that the trial court held that the constitution of 1896 was legally adopted and that by the express language of that constitution the members of the congregation are entitled to call a minister or teacher belonging to an orthodox synod or such as have been examined by the officers of such synod and have been found capable of teaching. If it be conceded that the congregation had the right as against a minority thereof to adopt this constitution, it seems 'too plain for argument that the congregation had the right to call a minister from the Ohio synod because it is admittedly an orthodox synod. The congregation accepted the new constitution, and acted under it for twenty-seven years without any question being raised in respect to the legality of its adoption. We think the trial court correctly held that under such circumstances the regularity and legality of the meeting must be presumed. 14 Corp. Jur. 377, note 65, and cases cited; 3 Fletcher, Corp. pp. 2720, 2774, and cases cited.

It appears to be undisputed that the Missouri synod was incorporated in 1848 under the laws of the states of Ohio, Missouri, and other states, and from the day of its incorporation to the present time it has always promulgated a certain interpretation of the Christian faith, and there has been no change whatever in its construction and interpretation of the sacred writings. The Ohio synod waS' incorporated under the laws of the state of Ohio in 1810 and it has maintained a separate and distinct synodical existence. Both synods, however, accept the Unaltered Augsburg Confession and to a considerable extent the same sacred writings, although they put different interpretations upon these writings.

The St. Elias Congregation was incorporated under sec. 1991, R. S. 1878. By the provisions of sec. 1991 the in-corporators were authorized “to organize themselves into a religious society of the-church (sect or denomination, or other description), located in (name of town, village or. city), in the county of-.” The incorporators in this case inserted in that place the following: “have and organize themselves as a religious society of the Lutheran Church, Unaltered Augsburg Confession, located in the town of Herman, in the county of Shawano.” Upon their incorporation they proceeded under this statutory power to adopt by-laws which were designated “Constitution of the Evangelical Lutheran Elias Congregation, Unaltered Augsburg Confession, of Town of Herman.” The provisions of the first article of this constitution are as follows:

“The members of this congregation pledge themselves to call only ministers and teachers of the Missouri synod as long as said synod adheres to the pure doctrine of the Gospel and the correct administration of the Holy Sacraments.”

By article 3 it was provided:

“. . . These first named paragraphs [1, 2, and 3] cannot be changed as long as three members cling to the teaching stated in paragraphs 1 and 2; they keep the entire property belonging to the Elias Congregation whether movable or immovable.”

Article 2 was as follows:

“The members of this congregation adhere to as their confession: the entire canonical books of the Old and New Testaments, the Articles of Smalkald, Dr. M. Luther’s Large and Small Catechism, and the Formula of Concord, Unaltered Augsburg Confession.”

Was the congregation and its property by this procedure unalterably dedicated to the Missouri synod? If the incor-porators had included in the articles of incorporation the words “of the Missouri synod,” the case would fall within the rule of Franke v. Mann, 106 Wis. 118, 81 N. W. 1014, where the title named in the articles of incorporation was “German Evangelical Church of the Synod of North America, for the purpose of forming a religious society of such sect and synodnor are we concerned here with the question of property upon which a trust has been impressed by the deed of conveyance, as in Fadness v. Braunborg, 73 Wis. 257, 41 N. W. 84. Nothing was said in the deeds of conveyance which indicated that it was to be dedicated to the Missouri synod. In this connection the language of paragraph one of the original constitution is significant. The members pledge themselves to call ministers of the Missouri synod so long as said synod adheres to the pure doctrine of the Gospel and the correct administration of the Holy Sacrament. Under the articles of incorporation and the constitution, who is to determine whether or not the Missouri synod continued to adhere to the pure doctrine of the Gospel? Manifestly, the Missouri synod could not be called upon to determine that question and so act as a judge in its own case. It would seem quite clear that the congregation by the language of this article reserved to itself the right to make that determination. If that is true, the congregation was independent. In fact, if the congregation desired to organize an independent congregation which might affiliate itself from time to- time with any synod adhering to the Unaltered Augsburg Confession, it is difficult to see how they could have gone about it in a more definite and satisfactory manner than that which they adopted. That being the case, the constitution of the congregation, which in effect corresponds to' its by-laws, could be altered so long as the property of the congregation was not diverted to a synod which did not accept the Unaltered Augsburg Confession. That such was the understanding of the congregation is made evident from the fact that the new constitution departed from the old constitution in that it provided that the congregation might call ministers and teachers who belonged to an “orthodox synod or have been examined by the officers of such synod and have been found capable of teaching.” This was a clear departure from the first constitution, which required the ministers to be called from the Missouri synod. The fact that this constitution was submitted to without challenge for twenty-seven years indicates that the members of the congregation did not understand that the organic law of the society was being violated by the adoption of the new constitution. This of course is not conclusive, but it is very persuasive as to what the congregation understood the legal effect of their articles of incorporation to be.

The original by-laws or constitution also contained a clause to the effect that “in case of a doctrinal controversy the congregation calls upon the synod of Missouri, Ohio, and other states [Missouri synod] as judge.” This is thought to be of some significance. It appears, however, that the distinction between those congregations which in fact joined the synod or were dedicated to it and those which did not join it was very slight. In case a Missouri church did not belong to the synod it had all the rights of any other congregation except that its representative could not vote. The pastor of an independent congregation might attend the meetings of the synod, engage in discussion as to church, business, and doctrinal matters, but the congregation had no vote. In any case the synod had no jurisdiction over the congregation except that it acted in an advisory capacity. The evidence shows that congregations which had not affiliated with the Missouri synod frequently called upon that synod to settle disputes. The attitude of the congregation is further indicated by the fact that on two occasions they refused to join the Missouri synod, and as a witness said, “The congregation was always against it.”

The determination of this case rests very largely upon questions of fact. It is quite apparent that the congregation did not intend to dedicate itself to the Missouri synod. The original by-laws or constitution, as they are designated, were duly amended, and in accordance with the new by-laws a call might be later extended to a preacher and teacher of an orthodox synod. There is no question that the Ohio synod is an orthodox synod. The trial court correctly found that there was not a dedication of the congregation’s property to the Missouri synod and that the majority of the members were within their rights in calling a preacher from the Ohio synod.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on October 14, 1924.