The herald., 1895-10-16

must either be one of perverslon by an
act inconsistent with the nature of the
grant and destructive of its ends, and
which amounts to an in jury to the public
who are interested IN the franchise, or II
must be done of usurpation by the ever
else of an unauthorized power regard ess
of any interest or injury to the public.
1t cannot be said in this case that the
defendants or the corporation, the First
Presbyterian church of Los Angeles,
have laid themselves liable under the
rules of law to have the franchise of the
corporation forfeited. For nearly twenty
years the management OF the corporation
seems to have been according to tho
wishes of the body and members consti-
tuting the corporation as we'll as the
church; directors were elected annually
as the law requires, and the affairs OF
the corporation properly administered.
In the present year.. owing to the
growth of the business portion OF
this city about the location of
the church, it was deemed advisable
by the members thereof to sell the lot
and premises upon the corner of Broad
way and Second streets referred to, and
such proceedings We're had by the con-
sent of the members, that it was sold. No
objection seems to have arisen until
the directors acting with the consent of
n ma GRITTY of the church and corporation,
selected a location and started in to the
erection of new church edifice. There
is no pretense that they have abandon ed
the creed or doctrine of the Presbyterian
church. or that the directors of the cor
poration are about to divert the property
to some other denomination than that
for the beneht of which the corporation
was organized. The corporation, there
fore, has not even made itself liable 10
have the courts intervene either in the
way of forfeiture or for the purpose of
restraining its action as in the case OF
fraudulent use or perversion of the prop
erty and matters entrusted to it.
1t is not claimed, as | understand,
that by the ecclesiastical law the mem
bers can be compelled or forced to join
any particular church or body, or that
they can be prevented from remaining
mem bers of any particular local church
or body, except in cases where for viola
ton of ecclesiastical law or discipline
they may be proceeded. gainst and ex-
PEELED or removed. In this case it ap-
pears that there are over 400 members
that decline to become mem bers of the
Westminster Presbyterian church, estab-
lished by the ecclesiastical iud icatory,
but maintain that they are still memb Der s
of the First Presbyterian church; and
among this numb Der are some contribute
ing members of the First Presbyterian
churcL, corporation. who are not mem,
bers of the spiritual body or church, and
therefore not amenable to the ecclesiasti
cal law. Whatever force or effect the
order dividing the church may therefore
have as to the other mem bers, 1t cannot
operate so as to deprive these OF the right
to remain mem ers of the corporation
of the First Presbyterian church. 1t ap-
pears clearly therefore. that such oorpo-
ration still exists and that its affairs
are managed by its board Of directors in
accordance with the law of the state.
This action is based upon the theory,
as the complaint shows, that the order
of the ecclesiastical court or judicatory
in dividing the church and apportioning
the funds or assets belonging to the cor
poration, creates such a condition relat-
ing to the property as to require the civil
courts to carry 1t out. 1t is correctly
said that in this country the civil courts
have no ecclesiastical Jurisdiction; they
cannot review or question any acts of
church discipline, and can only interfere
in church controversies whom civil rights
or the rights of property arc involved;
but when a civil night depends upon an
ecclesiastical matter, ii Is the civil court
and not the ecclesiastical which has to
decide. The civil tribunal tries the civil
rights and no more, taking the ecclesias-
teal decisions out of which the civil
right arises as 1t finds them; but the
civil court cannot carry into effect the
judgments or orders of an ecclesiastical
court when by SO doing it will accom-
plish what cannot be done directly by
the civil court in the first instance.
1t is maxim of the law that that which
cannot be done directly cannot be done
indirectly. Suppose the ecclesiastical
tribunal had taken action before the sale
OF the property of the First Presby terrain
church and had ordered division of that
church and distribution of the proceeds.
1t would hardly be claimed that the civil
court could be called upon to carry out
q
property and distribution OF the funds;
yet, if the present order and decree be
legal and enfoIc chile, the one supposed,
prior to the sale, would be equally so.
The decisions of the higher courts OF the
various states in reference to matters
similar to the one at bar are far from be.
ing uniform; in fact, they. are very con-
letting. perhaps arising from the dissim--
ilarity.of statutes in reference to corpora.
tons OF this character. However that
may be, the decision of nur own supreme
court upon our own statute must control
the action of this court, and it is quite
clear from these, as already shown, that
this proceeding for an injunction cannot
be maintained.
But there is another objection to this
pl oceeding and that is this: If it can be
assumed for the purpose of an action in
the civil court that the judgment of the
juuicatory of the pres bytery is operative
and to be recognized as legal. it amounts
simply to division of the funds arising
from the sale of the church property. In
other words, is a simple money demand
founded upon the judgment or decree of
the ecclesiastical court awarding the
amount stated in the complaint to-wit:
1923, 79l, to the Central Presbyterian
church. There is no showing in the com
plant that the corporation defendant or
the other defendants, in fact, are insol-
vent or unable to respond In any money
judgment that might be obtained IN the
premises. If, therefore, the plaintiffs
have any right OF action, it is one at law
to recover money, and the court will not
issue an injunction where there is a