Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1905-12-09
llldue Morse Hands Down De-
cision in Case Brought
Against Church.
PLAINTIFFS GIVEN 20 DAYS.
Have This Length of Time in
Which to File an Amend.
ed Complaint.
Ruling Discusses Question In Detail
and Covers Every Point of OBJ
jections Raised.


complaint In the case of Don Carlos
w. Musser and Charles A. Smurthwaite
against President Joseph f. Smith OF
the Church OF Jesus Christ of Latter
Judge Charles w, Morse this morning
I'm very exhaustive decision which
covers the points raised on demurrer IN
every detail. The complaint was filed
by the plaintiffs to compel President
Smith to render an accounting of the
tithing fund received by him and for an
Injunction to enjon defendants from
further investing said fund in the
stocks of corporations. After SUSTAIN
ing the demurrer Judge Morse made an
order giving the plaintiffs 20 days in
which to amend their complaint. The
decision Of the court follows in full,
DECISION IN FULL.
1T is well settled by an almost UNI
broken line of decisions that the civil
courts will take Jurisdiction OF suits to
prevent misappropriation Of churcE
funds, or property or of any attempted
By the terms upon which the fund was
created, or the property acquired, or Of
the rules and regulations of the society.
But before the court will interfere to
exercise visitorial control over the
management disposal, or investment Of
such property, or funds, It must clear
~ appear from the aVerments OF the
bill that the acts complained of are
unNarranted or unauthorized, and that
the trust reposes In those to whom
the management and control of such
property, or fund, has been committed,
Is being or Is about to be violated The
cases IN which such relief has been
sought may be divided into two general
classes. 0) Where the society Is COR
poration, having been Incorporated UNI
der the laws for the incorporation for
religious societies, and (2) where the
society Is unlncorporated, being merely
voluntary association.
In the first class the objects of the
society and the limits Of its powers are
defined by its charter, or articles of in
corporation, and these Il may not depart
from, nor exceed. with the second
class. such objects, powers and limita-
tons must be determined by reference
20 the organic law of the society and
such rules and regulations az it may
have regularly adopted.
NO UNLAWFUL ACTS.
AS appears from the ayermentS OF
the bill In this case, the Church of
Jesus Christ of Latter day Saints be-
longs to the second class II Is not al
legged and was not contended In the
argument upon the demurrer. that the
acts of the defendants complained of,
we're unlawful In the sense that they
are In amy violation Of any laws OF this
state. Neither was il alleged, nor was
II commended. that any Of the trust
property was being, or had been. APP
proprlated by the defendants, or either
of them to their own use, or that either
OF the defendants had been guilty of
any fraud with relation to such prop
erty but the contention was that the
Investment and use of the funds In the
manner complained of were unauthor-
lied and unwarranted and con-
stitute violation on the part of the
defendants of their duties as TRUSTEES,
What those duties are and what the
powers and limitations of authority
on the part of such trustees are. can
only be determined by a reference to
the laws. rules and regulations of the
society and the terms of the trust
A CASE IN POINT,
As was apty said by the learned
Chancellor in the case of Penfield w
Skinner IL CT. 2S7. IL jurisdiction Is
entertained over them (voluntary asso-
Citations for charitable purposes) by
court Of chancery, II appears TO me
mat IT will become necessary to eXam-
Inc their constitutions or bylaws, or
articles of association, in order to dis
cover the object for which they were
formed. and every member contribute
.hg and every one receiving donations,
whether they are styled as officers. or
not must be considered as having re-
gard to the articles of association,
whether they are called constitution, or
oy-lH"s, and must proceed according
~ and as was said by Judge Strong,
m delivering the opinion of the court.
n the African NJ. Il. church case as
Pa st, 209) OF course. whether the
acts either OF omission, or commission.
complained of. were transgressions of
me trust depends upon the nature Of
ne trust. az defined by the deed cree
aung it. The rule is stated in Enc.
T. and +. Vol. 90 p, 1876 as follows
All the facts or circumstances relied
upon to show the creation or existence.
81 a trust in favor Of the plaintiff, must
% distinctly alleged And this must
u necessity be so. for It cannot he de-
.ermined whether breach Of duty, or
nc failure to perform an obligation has
occurred unless the duty, or obligation
De clearly set forth and defined.
NO CAUSE or ACTION,
1T Is not sufficient 10 allege that GER
AIN acts are unlawful. or that they
;annot lawfully. or legally be done. but
ne facts from which such deductions
md conclusions may be reached must
% set forth
Applying these rules to the COM
paint In this case / am of the opinion
nat 1t does not state a cause ~ action.
IT is alleged that the defendant,
Joseph f. Smith. as president and trus-
ee-in-trust transacts the business OF
snd Churcn In Salt Lake city What
ne nature or character of the business
which said Church, under the
'olicy or plan Of its organization may
'hgage In, through its trustee, is not
iet forth.
IL Is alleged that said Church ex-
cts annually from it's members one
ehth OF their gains, or income, as tith-
ns Such exactions must necessarily
le mazda thro,iRh Soma lau tuie or