#### E. Wagner, et al., *vs.*The Vestry and Wardens of the Episcopal Church in the Parish of Christ Church.

Where a corporation acting as a single body is sought to he restrained from an abusive exercise of its powers, the proceeding should it seems be by information ex relatione, through the Attorney General.

The corporation of the Episcopal Church of Christ Church Parish have the power under their charter to build a church or chapel of ease at Mount Pleasant.

BEFORE DARGAN, CH., AT CHARLESTON, JUNE, 1856.

Dargan, Ch. Tbe Vestry and Cburcb Wardens of tbe Episcopal Cbnrcb in tbe Parish of Christ Cbnrcb, were incorporated by an Act of tbe Legislature, passed in 1787. The preamble to tbe Act recites, that tbe Parish Cbnrcb, which is situate about six miles from tbe town of Mount *156Pleasant, had been burnt down; that money had been given by several, persons for re-building and fitting up the Church, and for providing for the maintenance of a minister, and the payment of' other proper officers of the same; and that these objects could be more successfully accomplished if the Church were incorporated. The Act then erects the Yestry and Church Wardens, and their successors, into a body corporate, “with all the powers and authorities that are vested in any corporated and established Church in the State,” and empowers them to hold the real and personal property, then belonging to them, and to acquire any other property by purchase or gift, and at their discretion, to sell and dispose of the same, “for the purposes aforesaid.” The Act then proceeds to make it their duty to re-build or repair the Church, and authorizes them to assess the pews for payment of the cost, and also to appoint and remove-at pleasure, ministers, and other necessary officers, and to provide salaries for them.

The Church was re-built, and ministers have been appointed and paid by the Yestry and their successors, from time to time. And there is now a minister, of their appointment, who officiates regularly in the Parish Church, except during the sickly months of the year.

' The Yestry have a fund in their hands, invested in securities amounting to about eleven thousand dollars. The origin of this fund cannot be ascertained. It is not even known certainly, whether any part of it existed at the date of the Act of incorporation, or whether it has been acquired in whole or in part, since that time.

In the year eighteen hundred and thirty-three, some of the inhabitants of the town of Mount Pleasant, which is situated within the Parish of Christ Church, built a small Episcopal Church there, and at their request the Yestry took charge of the building and have allowed the minister of the Parish Church to perform services .in it.

*157Tbe population of Mount Pleasant bas increased very mueb of late, and tbe Episcopal inhabitants finding tbe present Cburcb too small for their accommodation, have applied to tbe Yestry to build a larger one out of tbe fund referred to, or to aid tbem by making up so mueb of tbe cost as they may fail to raise by subscription.

A majority of tbe Yestry resolved to grant tbe application, and appointed a committee from tbeir body, wbo bave advertised for estimates for tbe building. Tbe present bill is filed by tbe minority of tbe Yestry, and prays for an injunction.

Tbe question to be decided, therefore, is, whether tbe Yestry may lawfully use tbe fund in tbe manner proposed?

In tbe absence of any special trust in this matter (and none such bas been shown,) tbe powers of tbe Yestry in relation to this fund must be ascertained from tbe Act of incorporation. In this respect, they stand on tbe same footing with other corporations. They cannot use tbeir property for any purpose that is not allowed by tbe Act, or that might not by fair interpretation be brought within its scope, if its terms were general. But this Act is explicit as to tbe objects for which tbe Yestry were incorporated. Those objects are set forth in terms, to be tbe re-building or repairing, and fitting up tbe old Parish Cburcb, providing ministers and other necessary officers for tbe same, and paying tbeir salaries, as already mentioned; and it is clear, that by tbe “purposes aforesaid,” for which, in tbe second section, tbe Yestry are allowed to sell or dispose of any of tbeir property ás they might think expedient, those objects are intended. There is no room for saying that tbe Yestry were clothed with power to use tbe fund for tbe general purposes of Christianity within tbe Parish, as was urged in argument. Nor is there any occasion to resort to tbe law ecclesiastical to determine tbe powers of this Yestry over tbe fund. Those powers are sufficiently defined in tbe Act.

It is also immaterial to this case,, whether tbe present fund *158existed at tbe date of tbe Act, or was acquired afterwards, for tbe Act itself gives tbe same directions as to tbe fund then in tbe Yestry’s bands, and any fund tbat might afterwards come to tbem.

It is evident, tbat tbe building of a Cburcb or Cbapel in tbe town of Mount Pleasant, is not one of tbe objects for wbicb this Yestry may use tbeir fund, as those objects have been explained above. It is therefore ordered, tbat tbe defendants, tbe Yestry and Cburcb Wardens of tbe Episcopal Cburcb, in tbe Parish of Christ Church, be perpetually enjoined from using the fund in tbeir hands, or any part thereof, for or towards tbe building of a Cburcb ,or Cbapel in tbe town of Mount Pleasant. Costs to paid by tbe defendants.

Tbe defendants appealed on tbe ground

Tbat tbe defendants, being clothed by tbeir Charter of incorporation, with all tbe power and authority which are vested in any corporate Cburcb in tbe State, have a right to appropriate a reasonable portion of the fund in their bands to the construction of a Chapel for tbe ease of tbe Parishioners of tbe Mother Cburcb.

*Petigru*and *King,*for appellants.

Lesesne, contra.

Tbe opinion of tbe Court was delivered by

JOHNSTON, Ch.

As no such point has been raised by tbe defendant, we are not disposed to volunteer tbe inquiry wbicb has suggested itself to our minds — whether tbe plaintiffs should not have brought tbeir complaint in tbe form of an information ex relatione, through tbe attorney-general; which would seem to be tbe more fitting proceeding when a corpor ation, acting as a single body, without reference to majority *159or minority, is sought to be restrained from an abusive exercise of its powers.

"We are satisfied, upon other grounds, that the plaintiffs are not entitled to hold their decree.

The corporation, whose acts are now under examination, did not originate in the statute of 1787,(a) referred to in the decree as its charter. It was created as far back as 1706. By a statute of that year,(b) the county of Berkley — (which, by an order of the Lords Proprietors, given in 1682, embraced Charlestown, and extended on the coast, from Sewee on the north to Stono-creek on the south, and bad for its inland boundaries, Craven county, northward, and Colleton county, southward,) — was divided into six parishes, of which Christ Church was one: and by several sections of tbe same statute, the rights, and privileges of the rectors, select vestries and wardens of the different parishes, with the modes of their appointment, were fixed and regulated. The statute is in its terms perpetual.

It is well known that the Episcopal Church was the established Church in the south part of the province of Carolina, now called South Carolina, from the time of Sir Nathaniel Johnson, during the residue of the proprietary government, and from the beginning of the royal government, after the surrender of their charter by the lords proprietors, up to tbe time of the revolution.

Then we have the constitution of the 26th March, 1776,(c) by the 29th clause of which, it is declared that “all laws now of force here, and not hereby altered, shall so continue, until altered or repealed by the legislature of this colony, unless where they are temporary, in which case they shall expire at the times respectively limited for their duration.”

The constitution of 19th March, *1778,**(d)***clause 88, while *160extending toleration to “all persons and religious societies who acknowledge that there is one G-od, and a future state of rewards and punishments, and that God is publicly to be worshipped,” and announcing that “the Christian protestant religion shall be deemed, and is hereby constituted and declared to be the established religion of this State,” and that “all denominations of Christian protestants in this State, shall enjoy equal religious and civil privileges:” proceeds "to accomplish this desirable purpose, *without*injury to the property of those societies of Christians which are by law *already*incorporated,” by establishing certain process by which those societies desiring incorporation may obtain it: and expressly declares “that the respective societies of the Church of England that are *already formed*in this State, for the purpose of religious worship, shall *still continue incorporate,*and hold the religions property now in their possession.”

Thus stood the Episcopal Church of the parish of Christ Church, when in 1787, the Act (a) was passed which has been regarded as its present charter. *(b)*

If this statute gave to it certain powers suited to particular circumstances, or powers of a circumscribed nature, it did not take away the general or larger powers it already possessed. In such cases, the new charter is regarded as amendatory of the old, the new is purely cumulative, and the case is as if the old and the new were issued together, forming one charter.

*161I suppose tbat tbe vestry and wardens of this parish church, independently of the statute of 1787, and acting merely as a corporation under the statute of 1706, according to the polity of a colonial Episcopal Church, had a right to apply any church funds, not devoted to specific objects, to the advancement of general religious purposes in the parish, *(a)***If their church building were destroyed, or its site become insalubrious or the bulk of the parishioners collected in some other neighborhood, — if any circumstances rendered it advisable, having respect to the whole parish — I suppose it was competent to change the location, and erect a new church edifice elsewhere. And so, I suppose, if for a portion of the year, a majority of the parishioners were collected for their health at Mount Pleasant, it was competent to make provision for a chapel for public worship there, provided the consent of the Eector, and of the Bishop were obtained.

These privileges were not taken away by the statute of 1787. But if we confine ourselves to that statute alone, I am still of opinion, that the proceeding against which the injunction has been granted was within the powers of the corporation.

The statute incorporates them as an Episcopal Church; which, in- my opinion, gives them all the powers belonging to churches of that order; as to which I have already spoken. But, it moreover appears in the statute, that it was passed in answer to their petition to be incorporated “and vested with all the powers privileges and immunities which any of their sister churches enjoy.” They are accordingly in express terms, “ vested with all the powers and authorities which are vested in any corporated and established Church in this State.” By this I understand, not all the powers belonging to churches of a different denomination, but to those of their own ritual. Here, again, we have a general grant of powers, such as belong to the vestry and wardens of Episcopal churches. *162And it so happens, that in an Act, *(a)***passed but five days before this, the vestry and wardens of the parish of St. Bartholomew, were incorporated, with express power to restore dilapidated chapels.

I think it is but fair to give statutes incorporating churches a liberal construction, for advancing the cause of religion: and while I would never favor such a construction as would permit any church, or any majority in it, to pervert its tenets,'its organization or its ritual from their true denominational character, I would do every thing in my power, to advance all its acts, (not revolutionary,) tending to wholesome purposes.

It appears that in 1787, this corporation possessed funds which had been contributed for the special purpose of reconstructing their church building, which had been burned down ,by the enemy, during the revolutionary war. If these funds remain, and any portion of them enter into the appropriations complained of in the bill, the appropriation might be restrained. But the burden of showing thip was on the plaintiffs, and it has not been shown. Are we, without proof, to presume that when funds have been raised to build a church, and the church has been built, it has not been accomplished by expending the funds ? Are we to presume any thing of such a character, after a lapse of seventy years?

It is ordered that the circuit decree be set aside, and the bill dismissed.

Dunkin, Dargan AND Wardlaw, CC., concurred.

*Decree reversed.*

(a)

**5 Cooper, 140,

(b)

*2*Cooper, *282»*

(c)

o) 1 Cooper, 12S.

(d)

**1 Cooper, 13T.

(a)

 8 Cooper, 140.

(b)

 And see Constitution of June 3,1790, Article 8, *§*2, (1 Cooper’s Statutes, 191), which declares that “the rights, privileges, immunities, and estates of both civil and *religious*societies, and of bodies corporate, shall remain as if the constitution of this State had not been altered or amended.” In this, and in the previous revolutionary constitutions, the saving of pre-existing laws, would seem to have been unnecessary; for such seems to be the result under every conquest or revolution, except so far as the laws are repugnant to the constitution or structure *of government,*of the conqueror or revolutionary party. So far as the prior laws are political, they give way; so far as they are purely civil, or municipal, they remain.

(a)

*See Vestry & Wardens*vs. *Barksdale,*Strob. Eq. 200, et seq.

(a)

**8 Cooper, 137.