The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1906-07-07
JOSEPH F. SMITH
AND THE T|THES
Action of SmurthWaIte Against
Church on Hearing in Court
Yesterday.
ARGUMENTS HEARD
ON THE DEMURRER
Judue Zane Makes Able and elo-
uuent Plea for the
Plaintiffs.

Arguments on demurrer TO the sec
ond amended complaint in the suit IN
stituted by Don Carlos w. Musser and
Charles A. Smurthwaite against Joseph
+. Smith, John r. Winder and Anthon
II Lund Of the first presidency M the
Mormon church, and particularly 10
have President Smith. trustee in trust
OF the church. restrained from misap-
plying the tithes Of the church, were
made before Judge c w. Morse In the
District court Friday by Judge Z. ,.
Zane for the plaintiffs and f. 5. Rich
ards for the defendants, but as they
were not completed the further hearing
was continued until $50 this morning.
Attorney Richards Opens,
Attorney Richards opened his side of
| the case by reading the decision OF
Judge Morse in the demurrer to the
| amended complaint and said that his
! contention was that the second amend
! ed complaint was open TO the same OBJ
jections as the amended complaint Tho
only essential features of difference In
| those complaints was in the change
that has been made in paragraph and
| the introduction of new paragraph,
| No. 8. Therefore he would conflne him
self to the consideration OF these.
A Change In Language.
| In the former complaint II was
charged that 10 per cent of the income
of the members of the church was ex-
acted annually and paid to the trustee
In trust for church purposes, and that
the same cannot lawfully be used IN
secular business, in mercantile, COM
mercial or business enterprises of spec
ulation. In the new complaint 1t was
averred that according to doctrine and
rule OF said church It's members are
required respectively 10 pay one-tenth
of their gains or incomes as tithing."
IT did not relate to the disposition of
the tithes; 1t simply did away with the
expression "exacted" and substituted
required" and said 1t was according
TO doctrine" The paragraph Still re-
cited that the money could not be used
In speculation or for secular purposes,
but only for church purposes.
What About the Doctrine?
Mr.. Richards contended that the facts
were the same in both complaints. only
they were stated differently. Tho COM
plant gave no knowledge as 10 the
terms of the trust or the regulations
under which these contributions are
made. Why is the doctrine OF the
church not set forth IL there Is any?"
asked MT. tElc03TCSr me only way 10
determine il there is trust deed and
what the terms of 1t are Is from the
law, and rule and regulations under
which these terms were made and from
which some inference may be drawn
as to the distribution, The other
statements In the complaint were SIM
ply conclusions. The change did not
meet the objections raised before and
did not make the complaint competent.
Have They Violated Trust?
The new paragraph, No. 5, set forth
that the church is voluntary religious
society; that IT has no constitution or
bylaws, and has no articles of associa-
ton; that the general rule only desig-
mates the uses and purposes of the
tithes: but they could not lawfully ap-
propriate money for other than church
purposes: and that it was a violation
Of public policy for the church and
trustee to engage In various secular
businesses by the use of church funds
and is therefore unlawful Mr.. Rich
ards desired to know who had the dis
cretion to say how the funds shall be
disbursed. IF we had this doctrine or
law of the church under which this
tithing is paid 1T might disclose how
the tithing was governed and dis
bursed, but we have not got It," said
illusions and not statements OF fact,
continued the attorney. There was
nothing that the court could imply was
a misapplication of the fund. Tho court
was asked to assume that trust was
created and that these people are vio-
lating that trust.
Legitimate Business Not Unlawful.
Referring TO a decision quoted at the
former hearing by Judge Zane, Mr..
Richards contended that the law did
not apply to incorporated associations
and they were not Incorporated He
claimed Il was not unlawful for a
church to enter into any legitimate
secular enterprise. while churches
did not engage extensively In such
business" he continued, the Methodist
church was in the book business and
other business and there was no law
against 1t. Counsel might say it was
very bad taste, and / don't know how
far I should take Issue with him In en-
gaRing in certain kinds of business;
but we are not here to discuss this
question. 1t is question of law. 1t
cannot engage in a buslensS that would
be subversive of good government or
public morals, but IT is lawful to en-
gage In legitimate business and 1t is
not against public policy"
Question Of Right to Sue.
Mr.. Richards, In conclusion, said he
also relied on the point that the plain
tiffs had no such interest in the contro-
versy as TO entitle them to sue and
quoted from a decision Of the Supreme
court OF Utah-the United States VS..
the late Incorporation Of the Church Of
Jesus Christ OF Latter-day Saints, with
Messrs, Romney. DInniny and Clark,
intervenors. In which IT was held that
contributions having been made to the
church, that the individual members
had no further interest in them.
Judge Zane Makes Reply.
Judge Zane in reply said the grounds
OF the demurrer and the argument of
counsel uecessitated the calling of at
tention TO the facts alleged In the com
| Dlaint more In detail than he had In
| tended to state them. After stating the
title OF the action he continued that all
the facts In the complaint arc admitted
| by the demurrer. Judge Zane then read
| the various sections OF the complaint,
L