#### Sarver and Others’ Appeal.

1. Under the 13th section of act*of June 16th, 1836, the Courts of Common Pleas have the jurisdiction and power of a court of chancery as to the supervision and control of all corporations, except municipal corporations.

2. The equity powers of the court, though circumscribed as to individuals, are general and unlimited as to corporations, and are to be exercised in the ordinary mode of a court of chancery.

3. This jurisdiction is applicable to religious corporations, and involves power of issuing all sorts of equity process necessary to effectuate this'control.

4. Congregational meetings cannot control the chartered rights of a society, nor can the customs of a church take them away.

5. The customs of one portion of the society cann.ot deprive the otherportion of its rights.

6. By the charter of a church it was required that the pastor should be in connection with some Evangelical Lutheran Synod in the United States; it became connected with a district synod which was Evangelical Lutheran, and was in connection with the General Synod of the Lutheran Church in the United States. The charter ivas amended by a decree of the Court of Common Pleas in 1864, requiring that the pastor should be a member of a synod in connection with the General Synod; the amendments to the charter had been adopted by the church without dissent, but not in strict conformity with its constitution, and the church continued to act under them for three years, when the District Synod dissolved its connection with the General Synod. Held, that the amendment was as justly a part of the charter as any part of it.

7. The District Synod dissolved its connection with the General Synod; the pastor continued with the District Synod; the majority of the congregation persisted in retaining him; the minority withdrew and worshipped elsewhere, claiming to be the original congregation. *Held,*that the Court of Common Pleas under its equity powers could restrain the pastor from occupying and *184preaching, etc., in the church, and the trustees, etc., of the church from permitting him so to do, etc., and from preventing the minority from the use, etc., of the church.

October 27th, 1874,

Before AgHew, C. J., Sharswood, Williams, and Mercur, JJ.

Appeal from the Court of Common. Pleas of *Armstrong County.*In Equity: Of October and November Term, 1872, No. 24.

On the 24th of April, 1869, a bill was filed by William Grosser, J. T. Finley, John Riggle, Lewis Bowers, George Sober, and William K. Kuhns, against Jonathan Sarver, JohnW. Hill, M. L. Thornhurst, J. A. Moorhead, Israel Artman, Michael Spang, and Henry Shaner, Sr. The bill states: ...

I. The complainants were members, trustees, and council of the Hebron Evangelical Lutheran Church of Leechburg, and council and trustees of the congregation.

II. The congregation was incorporated on the 28th of June, 1848, by the Court of Comm'on Pleas, and on the 15th of March the charter was amended by a supplement to it, which was approved by the Court, March 15th, 1864, and the charter directed to be changed accordingly.

III. The congregation bought a lot of ground in Leechburg and erected a house of worship upon it.

IV. The congregation, by its connection with the Pittsburgh Synod, was and continued to be in connection with the “ General Synod of the Evangelical Lutheran Church of the United States.”

V. By the 7th article of the supplement, “ the pastor or pastors of this congregation should be members of some Evangelical Lutheran Synod in connection with the General Synod of the United States.”

VI. Rev. Jonathan Sarver was in 1866 elected pastor of the congregation for one year; he was then properly qualified as being, by his connection with the Pittsburgh Synod, in connection with the General Synod of the Evangelical Lutheran Church.

VII. In 1867, Sarver, with other members of the Pittsburgh Synod, “ factiously and schismatically combining and confederating to bring dissensions into ” the Hebron Church, as well as into other Evangelical Lutheran churches, refused to remain in fellowship with the General Synod, but connected themselves with a body known as the General Council ; and as such they were not entitled to use the house of worship, because:

*1851. They had departed from the faith, laws, etc., of the Evangelical Lutheran Church.

2. They had dissolved their ecclesiastical connection with the “ General Synod of the Evangelical Lutheran Church in the United States,” and were connected with the “General Council,” who had departed from the faith and doctrinal basis of the General Synod, and had adopted a basis widely different.

8. The acts of the defendants were in violation of the charter of the congregation and its supplement.

4, 5. Sarver was not the legal pastor, nor the other defendants trustees, not having been elected according to the provisions of the charter and its supplement.

6. The defendants, J. W. Hill and others, were not the legal trustees, not having been elected according to the charter and its supplement.

7. The plaintiff's were the legal trustees, and represent a majority of the voting members of the congregation, and that Lev. II. II. Hall was legal pastor, elected according to the charter and supplement.

VIII. Sarver continued to remain in possession of the church, and excluded from it the plaintiff's and other members of the congregation, and pastor, and refused to allow a properly qualified pastor to preach and minister therein.

The prayer was that the defendants, and all persons connected with the General Council, be restrained from using and occupying the house of worship, etc., and that the plaintiff's and all others of the congregation u who adhere to the faith and practice and are in ecclesiastical connection with the General Synod of the Evangelical Lutheran Church of the United States be restored to the possession,”, etc., and for further relief.

The defendants answered:

I. ¿They denied that the plaintiffs were trustees of the Hebron Church, and averred that they were part of a minority of the congregation who had departed from it and established another congregation and worshipped in another building.

II. They admitted the second paragraph, with the qualification that the supplement was not legally accepted by the congregation. They averred that on the 5th of Mai’ch, 1868, at a meeting of the congregation after due notice, by a vote of the congregation it was resolved to change the" supplement by striking Article 7th from it, and providing that no one should be a member except he should be in connection with the Pittsburgh Synod, which application for the change of the charter is still undisposed of by the Court.

*186III. This paragraph was admitted.

IV. The Hebron congregation, by its pastor, Rev.-David Earhart, participated in the organization of the Pittsburgh Synod in J anuary, 1845, and the congregation had remained iu connection with that synod ever since. That synod united with the General Synod in 1853. In 1866 the Pittsburgh Synod, at a regular meeting, did, in accordance with the provisions of its charter, dissolve its connection with the General Synod, and as no congregation can be i'n union with the General Synod except through the District Synod to which such congregation belongs, and the union of the Hebron Church existed only by reason of the union of the Pittsburgh Synod with the General Synod, the congregation had no ecclesiastical relations with the General Synod before 1853 nor after 1866. Under the laws and usages of the Evangelical. Lutheran Church, it is competent for any synod or congregation to change its synodical relations, and no forfeiture of property, nor deprivation of any right can be claimed by-reason of such change, so long as there is no departure from the faith of the Evangelical Lutheran Chnrch. The defendants averred that iu the change, no departure from the faith was contemplated or allowed.

V. Article 7th of the supplement, as stated in the fifth paragraph, is correct; but by reason of the facts heretofore stated in the answer the defendants denied that they had forfeited any property or were deprived Of any rights as pastor or members of the congregation.

VI. Rev. Jonathan Sarver was elected pastor in 1866, being legally qualified, and had since, with the consent of the congregation, continued to discharge the duties as pastor, according to the usages and customs of the congregation, and of the Evangelical Lutheran Church.

VII. They denied the averments in the seventh paragraph. They averred that the General Synod had no control over the property of the Hebron congregation, but the congregation rightfully held possession of its own property. The congregation participated in the organization of the Pittsburgh Synod in 1845, and had so continued since. In 1852, ■when the Pittsburgh Synod resolved to unite with the General Synod, it was stipulated that the action was not to be considered an approval of any departure from the faith of the Evangelical Lutheran Church ; the union of a District Synod with the General Synod is not compulsory, but a matter of expediency, to be determined by the District Synods. They admitted that the Pittsburgh Synod, after withdrawing from the General Synod in 1866, did, in 1867, unite with the General Council, which body, by its constitution, declared *187that it adopted the ancient faith of the Evangelical Lutheran Church. Neither the Pittsburgh Synod, nor the Hebron congregation, in uniting with the General Council, departed from the faith of the Evangelical Lutheran Church, nor violated their charter or constitution.

The defendants averred that the Pittsburgh Synod, in revoking the action which resulted in its connection with the General Synod, was constrained thereto because that synod had shown itself unfaithful to the faith of the Evangelical Lutheran Church; that Sarver was legally elected pastor, and held the office by the will of the congregation and according to its usages and customs; that the other defendants were the legal trustees, elected according to the charter and its supplement; that the plaintiffs are not the legal trustees, nor is IIall the legal pastor, nor were any of them elected according to the charter and supplement.

.VIII. The defendants have not excluded the plaintiffs from, the possession of the church as worshippers; the plaintiffs have withdrawn themselves from the congregation, cal led a pastor, established a new congregation, and are worshipping therein. Itev. H. II. Hall had no right to preach or minister in the Hebron Church as pastor.

On the 10th of August, 1871, the Court refused to allow the amendments mentioned in the second paragraph of the defendants’ answer.

By the original charter of the Hebron Church it is provided, amongst other things:

“ Chapter 7, Section 2. All general meetings of the church, with their object, shall be publicly announced at least ten days prior to such meetings.”

“Chapter 11, Section 1. The constitution may be altered or amended as follows: the proposed alterations or amendments shall be read by the council before the church, and a time be appointed for their consideration, not less than ten days after they have been read; if two-thirds of the voters present adopt the proposed amendment or alteration, they shall become a part of the constitution of this church.”

The case was referred to Edward M. Borden, Esq., as Master. He found:

1. The congregation was actually separated into two divisions, and had so continued since some day in 1868, after the first of April.

2. The majority of the congregation had remained in possession of the church building, and continued to worship there, where the congregation worshipped, etc., when t’hey were united ; this was their common property.

3. The cause of the separation was that the majority *188maintained the Rev. Jonathan Sarver as pastor; they had continued to so maintain him.

4. The minority, since the separation, had worshipped in an academy, also the common property of the congregation, with Rev. H. H. Hall as their pastor. •

5, 6,7. Mr. tíarver was pastor of the whole congregation by election, for one year, ending April 1st, 1867, and by compromise, until April 1st, 1868, and had continued to officiate in the church building, by the members who worship there, and his continuance thus was not contrary to the laws and usages of the Lutheran Church generally, or of this congregation ; but he had not been eligible since April 1st, 1868.

8. The congregation was incorporated as “ The Hebron Evangelical Lutheran Church,” by the Common Pleas of Armstrong County, June 22d, 1848 ; the incorporation was desired and accepted by the whole congregation.

* * *5fr * *

10. The 9th article of the charter required that the pastor should be in connection with some Evangelical Lutheran Synod in the United States.

11-14. On the 1st of February, 1864, the trustees specified and exhibited in writing to the Court'of Common Pleas, amendments, signed by the trustees, as in behalf of the congregation, by its corporate name. One of these amendments proposed a qualification for pastor not in the original charter. All the amendments were decreed by the Court on the 15th of March, 1864. The amendments and decree were recorded March 16th. The decree is conclusive of the fact that the congregation desired to have the charter so amended. There ■was no evidence that the amendments were attended with fraud, nor that any of them were concealed from any member of the congregation until it was too late to object to them.

15. On the 30th of January, 1864, there was a meeting of the congregation called agreeably to the charter, to consider the amendments, but the objects of it were not announced agreeably to the second section of the seventh chapter *{supra).*The meeting was attended by a majority of the voters of the congregation. All the amendments were severally proposed and severally adopted or approved without any dissent, and after- having been so adopted and approved were signed by the trustees at this meeting.

16. All the amendments were proposed and read to the congregation, as required by the eleventh chapter, section 1, of the constitution, but none “ were considered, or adopted, or approved,” as required by that section.

17. No change has been made in the charter since the de*189cree of March 15th, 1864, one of the amendments then decreed being that mentioned in the fifth paragraph of the bill *(supra).*

18. Lev. Jonathan Sarver had not been a member of any “Evangelical.Lutheran Synod which is in connection with the General Synod of the Lutheran Church ” since October 17th, 1867. lie was, when first elected pastor of' this church, a member of the Pittsburgh Synod, an Evangelical Lutheran Church Synod, and then in formal connection with the General Synod. He remained a member of the Pittsburgh Synod. The Pittsburgh Synod has not been in connection with the General Synod since October 17th, 1867.

The Master made other findings, which were corrected by him on a second hearing.

Exceptions to the report were filed with the Master by both parties. He corrected his report, and finally found as follows:

I. Henry Shaner, Sr., John *W.*Hill, James A. Moorhead, and Israel Artman, defendants, and James Cugley and David Sober, were elected trustees, February 25th, 1867. The congregation was then united.

The defendants (other than Sarver) were elected trustees March 13th, 1869* at the church building, by the division which worshipped there.

3. The last-mentioned election was regular and valid, except that those who participated in it insisted on maintaining Mr. Sarver as pastor, in disregard of the seventh article of the charter.

4. No election — including that last mentioned — held by the division of the congregation which worshipped in the church building entitled tlae defendants to the office of trustees of the congregation.

5. 6. The plaintiffs were elected and re-elected trustees at the academy by the division worshipping there, and had acted in ‘ harmony wdth the charter. They are entitled to the office of trustees of the congregation.

7. Pev. H. H. Hall had been elected pastor by the division which worshipped at the academy, and his election by them entitles him to the pastorship of the congregation.

8-10. The difference between the General Council and General Synod is not very great. Both the General Council and Pittsburgh Synod are Evangelical Lutheran bodies, and hold no doctrine repugnant to that church.

II. The members of the Hebron congregation worshipping at the church building were Evangelical Lutherans, and- had not, by their adherence to the Pittsburgh Synod or otherwise, *190adopted any doctrine repugnant to the faith of the Evangelical Lutheran Church.

He overruled the other exceptions.

The defendants filed exceptions to the Master’s last report. He overruled them.

After hearing, the Court of Common Pleas made the following decree, December 14th, 1871.

“That the respondents, and each of them, deliver to the complainants all and singular the church building and lot of ground thereunto belonging, with the appurtenances, and the books, records, and effects of the said church; within twenty-five days from this time. That the said Jonathan Sarver be restrained and perpetually enjoined from- the use and occupancy of the church edifice and the lot of ground thereto belonging, with the. appurtenances, from preaching or in any wise officiating as the pastor in the church of the congregation, and from intermeddling in any manner with the spiritual or temporal affairs of the same (otherwise than a voter, if entitled as such), unless he.shall be duly elected pastor thereof by the congregation, agreeably to the constitution and charter of said church. That the other defendants be strictly enjoined from permitting the said Jonathan Sarver in any wise to officiate as minister or pastor in said church edifice, unless so regularly elected, and from employing any other pastor thereof without election as aforesaid, and from interfering with or obstructing the proper functions of any regular minister of the said congregation, duly elected, as aforesaid, as pastor thereof, and also from appointing any pastor or minister to officiate, in said church edifice as a stationed pastor of the congregation, who is not in connection with the Lutheran Synod, which is in connection with the General Synod of the Evangelical Lutheran Church of the United States, according to the provisions of the constitution and charter and supplement thereto of said congregation, and also from appropriating or in any manner disposing of the funds, property, or effects of the said Hebron Evangelical Lutheran Church of Leechburg, for the support or maintenance of any unqualified pastor or minister ; and further, that the said defendants be restrained from preventing or in any manner interfering with the occupation of the church by complainants and others who are qualified members of said church, adhering to the faith and practice of the church, and to their church connection with the Lutheran Church, and in connection with the General Synod of the Evangelical Lutheran Church of the United States. In all things in this decree saving to the respondents the subsequent right, after compliance with the decree, to avail *191themselves of chartered rights aud* privileges in church and property under and subject to a synodical connection, as expressed in existing charter and amendment of 1864. And it is ordered that the respondents pay the costs of this proceeding, such order not to affect their right to enforce apportionments as provided in agreement filed as to costs.”

The defendants appealed to the Supreme Court. They assigned the decree for error with the following specifications.

$ ‡ ‡ ft ‡ ‡

3. In making a final decreq without a finding of facts by the Master.

4. In decreeing a surrender of the property by the majority to the minority.

5. In holding the supplement of 1864 valid.

*E. S. Golden:*The minority voluntarily abandoned the congregation, and cannot therefore maintain this bill: Pine Hill Ch. *v.*St. Michael’s Ch., 12 Wright, 20 ; Baker *v.*Fales, 16 Mass., 488 ; Angelí and Ames on Corporations, page 160, sect. 194. The deed to the I-Jebron Church required no connection with any synod ; no charter'could divert the prdperty from the congregation so long as they adhered to the Lutheran faith: Presbyterian Congregation *v.*Johnston, 1 W. & S., 9 ; Trustees *v.*Sturgeon, 9 Barr, 321; Keyser *v.*Stanisheo, 6 Ohio, 363; The Commonwealth *v.*George Jarrett, 7 S. & R., 460. The congregation had no prior notice and would therefore not be bound by the supplement without subsequent acceptance: Shortz *v.*Unangst,3 W. & S., 52; Commonwealths. Cullen, 1 Harris, 133; Hoffman’s Ecclesiastical Law, 284. The majority had the right to control the ecclesiastical relation: St. Mary’s Ch., 7 S. & R., 517; Angelí and Ames on Corporations, sect. 84, 499 ; Kidd *v.*Corp., •422, 2 Kent’s Com., 236; Commonwealth *v.*Jarrett, 7 S. & R., 461; Commonwealth *v.*Lancaster, 5 Watts, 155; Pennsylvania Nat. Lit. Ass’n, 6 Casey, 150 ; Prussian Evangelical Luth. Soc., 36 N. Y. Rep , 161; Hoffman’s Ecclesiastical Law, 286. The supplement if valid affects the pastoral relation only ; the congregation may suspend it at pleasure if the suspension affects no question of faith ; the will of the majority is to be respected although irregularly expressed : Juker *v.*Commonwealth, 8 Harris, 484j

J. *Boggs*and *E. Cowan,*for defendants in' error,

cited McGinnis *v.*Watson, 5 Wright, 9; Schnorr’s Appeal, 17 P. F. Smith, 138.

Judgment was entered in the Supreme Court, November 2d, 1874.

*192Per Curiam:

The Master reports that all of the amendments to the charter of the “ Hebron Evangelical Lutheran Church” decreed by the Court of Common Pleas of Arm strong County, on the 15th day of March, 1864, were read, to the congregation at a previous meeting, attended by a-majority of the congregation, and were severally proposed and adopted without any dissent, and that after this approval they were signed by the trustees and exhibited to the Court. He further reports that there is no evidence that the proceedings upon the amendment were attended with fraud, or that any of the amendments were concealed from any member of the congregation until it was too late to object to them. Under those amendments they lived and conducted themselves for three years until the difficulties arose which led to the proceedings now before us. It is clear, therefore, that the seventh article of the amendment is as justly a part of the present charter of the congregation as any other article or provision in it. The seventh article provides that “the pastor or pastors of this congregation shall be members of some Evangelical Lutheran Synod which is in connection with the General Synod of the Lutheran Church in the United States.” " .

It is unnecessary to enter into or to trace the unfortunate controversies, in relation to this church connection, which grew up in this congregation, and destroyed its harmony and its unity of spirit. It is sufficient to say that it is fo.mdasa fact, and one -without dispute, that the Rev. Jonathan Sar-' ver was continued as the pastor of this church after he had dissolved his church relation which made him eligible as its pastor under the seventh article referred to. This was done by a majority of the congregation, it is true, but in violation of this amendment to their charter adopted in 1864, decreed by the proper judicial tribunal, recorded according to law, and remaining unchanged. A large minority of the congregation protested against this violation of their fundamental articles, and finding the majority unwilling to yield and return to their charter obligation, and persisting in the retention of Mr. ISarver as their pastor, though disqualified, they withdrew to other property of the congregation, and chose another pastor in accordance with the charter. This measure failing to influence the majority to yield, and to devote the church building to its proper use, by maintaining a pastor properly qualified, the minority resorted to its legal remedy to compel the majority to observe the charter provision, and devote the church building to a legal use, to which all of the members could assent.

Under the 13th section of the act of 16th June, 1836, the *193Courts of Common Pleas have the jurisdiction and powers of a court of chancery, so far as relates to the supervision and control of all corporations, other than those of a municipal character. Under this section it has been held that the equity powers of the court, though contracted as to individuals, are general and unlimited over corporations, and are to be exercised in the ordinary mode of a court of chancery : Commonwealth *v.*Bank of Pennsylvania, 3 W. & S., 184. This jurisdiction is equally applicable to religious corporations, and involves the power of issuing all sorts of equity process necessary to effectuate this control: Baptist Congregation *v.*Scannel *et al.,*3 Grant, 48. In the last case it is also held that congregational meetings cannot control, or the customs of church meetings take away, the chartered right of the incorporated society : “The customs of one portion of the society cannot, as such, deprive the other portion of its rights.” It is plain, therefore, that the acts of the majority, in violation of a fundamental article of the charter of this corporation, persisted in wilfully, are the subjects of control by a bill in equity in the Court of .Common Pleas, which will use all the powers of a chancellor to compel them to desist, and return to an observance of their charter duty. We discover no error, therefore, in the conclusions of the Court below on the main questions. But, as the decree in the form adopted might seem to carry the legal consequences beyond the line which marks the common rights of all, and to invest the minority with greater rights than they are entitled to claim, we modify the decree, so as toadajat it to its proper end.

And now, October 27th, 1874, this appeal came on to be heard upon the record thereof as returned, and, being argued by counsel, is held under advisement by this Court., And now, November 2d, 1874, after due consideration, it is ordered, adjudged, and decreed by the Court, that Jonathan Sarver, one of the defendants, be restrained and enjoined, while and so long as he continues ineligible to be elected as pastor of the Hebron Evangelical Lutheran Church of Leech-burg, according to the amended charter of the, said church or congregation, from using and occupying the church building and lot of ground thereto belonging, with the appurtenances, as the pastor of the said church or congregation,and from preaching or in any wise officiating as the pastor thereof, wUile so ineligible. That the other defendants be also restrained and strictly enjoined from encouraging or permitting the §aid Jonathan Sarver to officiate in anywise as minister or pastor of the said church or congregation, and from using and occupying the said church building, lot, and appurtenances, as the pastor of the said church or congrega*194tion, while, and so long as he is or continues to be, ineligible, as pastor thereof, under the amended, charter of the said Hebron Evangelical Lutheran Church of Leechburg; and also from appropriating or in any manner using the funds, property, and effects, or any part thereof, of the Hebron Evangelical Church of Leechburg, for the support or maintenance of the said Jonathan Sarver, as pastor of the said church or congregation, while he is, or continues so, ineligible. And also, that the said defendants, all and every one of them, be restrained and enjoined from preventing, dr in any manner interfering with the lawful use and occupation of the said church building,lot, and appurtenances, by the complainants and others, who are, and may be, qualified members of the said church or congregation, according to the terms and provisions of their charter and the amendments thereto, so that they, as well as the defendants, and all others, members so duly qualified, shall together, jointly, and in common,- and every one of them, have, use, and enjoy the said church, lot, and appurtenances, as one congregation, under, and according to the terms and provisions of.the charter and amendments thereto of the said Hebron Evangelical Lutheran Church of Leechburg. All which matters, so enjoined and ordered, the said parties, so restrained and enjoined, and every one of them, shall observe and obey, under the penalties which may follow in the case of a breach of this decree. And it is further ordered that the appellants pay the costs, and that their appeal be hence dismissed.

Per curiam.