The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1905-12-10
CHURCH SCORES
IN TITHING CASE
Judge Morse Sustains a Demurrer in
Smurthwaite Suit.
HAVE NO CAUSE OF ACTION
COURT HOLDS THAT COMPLAINT
Is NOT DEFINITE ENOUGH.

brought against him by Don Carlos ".
Musser and Charles A. SmurthWaite 10
restrain him from investing tithing
money IN any but religious enterprises.
The complaint alleged that President
smith. as trustee in trust or the Mormon
church, collected 10 per cent Of the earn
ings OF The Mormon people, and that he
did not use the money for church pup
poses exclusively, such as sustaining
missionaries building and repairing
houses OF worship, etc, but invested large
amounts IN other business enterprises and
used the church funds. which were estt-
mated at not less than 100000 a year,
for speculation in stocks. bonds, etc.
In his demurrer President Smith al
legged that the complaint did not state
facts sufficient 10 constitute a cause OF
action. that 1t was not alleged that the
acts complained OF were unauthorized or
unwarranted. and that il was not alleged
that the trust reposed in President Smith
IS being violated or is about 10 be Vio-
lated.
Plaintiffs Have Twenty Days.
Messrs. Musser and Smurthwaite are
allowed twenty days IN which 10 amend
their complaint.
Judge Morses decision is as follows:
1t IS well settled by an almost u1-
broken line OF decisions that the civil
courts will take jurisdiction of suits to
prevent misrepresentation OF church
funds, or property, or OF any attempted
application OF the same, not warranted
by the terms upon which the fund was
created, or the property acquired, or or
the rules and regulations or the society
But before the court will interfere 10 eX-
ercise a VisltOrial control over the man
agement disposal, or investment of such
property or funds, IL must clearly appear
from the aVermnets of the bill that the
acts complained of are unwarranJed or
unauthorized, and that the trust repOSed
In those 10 whom the management and
"a %
committed Is being or Is about 70 be vio-
lated. The cases In which such relief
has been sought may be divided into TWO
general classes. ID Where the society
Is corporation, having been incorporat-
cd under the laws for the incorporation
of religious societies. ana 60 where the
society Is unincOrporated, being merely
voluntary association.
In the first class the objects OF the
society and the limits or its powers are
defined Oy its charter or articles of in
corporation, and these IL may not depart
from, nor exceed. With the second class
such objects, powers and Limitations must
be determined by reference 70 the organic
law Of the society, and such rules and
regulations as it may have regularly
adopted.
Mo Unlawful Acts.
AS appears from the averments of the
bill in this case, the Church OF Jesus
Christ OF Latter-day Saints belongs 10 the
second class. Ii is not alleged and was
not cOntended i'm the argument upon the
demurrer that the acts of the defendants
complained Of were unlawful In the sense
that they are In any violation of any
laws Of this state Neither was 1t al
legged. nor was IL Contended. that any of
the trust property Was being, or had
been, appropriated by the defendants, or
either OF them, 10 their own use. or that
either OF the defendants had been guilty
of any fraud with relation 10 such prop
ciiy, but the contention was that the
investment and use OF the funds in the
manner complained 0t We're unauthorized
and unwarranted. and constitute a vio-
lation on the part of the defendants Of
their duties as trustees. What those du-
ties are and what the powers and limita-
lions OF authority on the part OF such
trustees are, ca1 only be determined by
a reference 10 the laws, rules and regt-
lattons OF the society and the terms of
the trust.
A Case in Point.
As was aptly said by the learned chan
cellor in tho case OF Penfield vs.. Skinner,
II Ct &9s: IF jurisdiction is entertained
over them voluntary associations Tor
charitable purposes) by q court OF chan
Gerry. II appears TO me that IL will be-
come necessary TO examine their consti-
tutlons or bylaws, OF articles of associa-
ton, IN order TO discover the object for
which they were formed. and every mem
her contributing and every one receiving
donations, whether they are styled as
having regard TO the articles OF associa-
ton, whether they are called constitu-
ton, or bylaws, and must proceed ac-
Cordingly-' And as was said by Judge
Strong IN delivering the opinion Of the
court in the African NJ. +. church case
as Pa, ST. 2le): OF course, whether the
acts either of omission or commission
complained OF were transgressions of the
trust depends upon the nature of the
trust as defined by the deed creating it,
The rule Is stated in Enc =. and p Vol.
p, p. 10. "a follows: An the fcats or
circumstances relied upon to show the
creation, or existence, OF a trust In favor
OF the plaintiff, must be distinctly al
legged And this must OF necessity be So.
Tor II cannot be determined whether q
breach or duty, or the failure to perform
an obligation, has occurred unless the
duty or obligation be clearly set forth
and defined.
No Cause Of Action.
EFT is not sufficient 10 allege that GER
tain acts are unlawful, or that they can
not lawfully or legally be done but the
facts from which such deductions and
conclusions may be reached must be set
forth.
Applying these rules TO the complaint
IN this case, 1 am of the opinion that it
does not state a cause OF action
1T is alleged that the defendant Jo-
Seph +. smith. as president and trustee
in-trust, uansacts the business of said
church IN Salt Lake city What the ma
ture or character OF the business ia which
said church. under the policy or plan of
ITS organization. may engage in through
its trustee, is not set forth.
1T Is alleged that said church exacts
annually from it's members one tenth OF
their sains, or income, as tithing. such
eEaSuons must necessarily be made
through some law, rule or regulation
promulgated by some persons or body
having authority to act in such matters
The complaint. however, Is silent as 10
the character or terms of any such rule
or regulation, with reference 70 the OBJ
jet OF such eXactiou, or how the funds
created thereby shall be MANAGED and
applied, and With whom, II anyone rests
tho discretion OF determining or direct
ing such management or expenditure.
Complaint is Vague.
1T is alleged that such contributions
are paid 70 said church and said trustees
for appropriation and expenditure bv IL
exclusively for church purposes etc. BuL
whether such deduction is 10 be drawn
from the fact that the persons contrib
uting arc presumed TO have done So with
regard TO the terms Of the regulations
e;aetinS such contributions, or by roa-
son or express directions and limitations
made by the donors at the time OF MAX
ing the contributions. does not appear.
II the former. then. he substance 81 the
terms and the conditions Of such reetl-
latiOus should be pleaded. and IL the lat
ter the directions and limitations as ex-
pressed by the contributors should be set
forth.
with reference TO the eighth para
graDh. which refers 10 the devisers and
bequests, the special demurrer 10 this
para graph, upon the ground that il is
ambiguous and uncertain, is sustained
and the general demurrer 20 the cause
Of action attempted 10 be stated IN the
remainder OF the complaint is sustained,
and the plaintiffs ars given twenty DAYS
10 amend. II they so desire"
MRS. HILTON LOSES POINT.