Opinion of the Court.

The entire theory of the case made by the bill as originally filed, is, that the plaintiffs are the lawful trustees of the corporation because elected by those who adhered to the Augustana Synod, and because the majority who withdrew ceased to be of the church corporation by reason of their secession. It is upon the theory that plaintiffs, in their corporate capacity, were vested with the legal title to the church property; were lawfully entitled to its control, and to the control of all the temporalities and spiritualities of the church; that the trustees of the majority, who were in possession and control of the church and its property, were virtually usurpers. Hence the court was asked to compel the latter to pass over the key of the church to plaintiffs, transfer over to them the church property, records, etc., and to restrain them from pretending that they were the trustees of the church.

By the amendments of the bill the plaintiffs did not profess to change it in respect to the character in which they sued, but only alleged certain changes of tenets and doctrines on the part of the majority, specifying what they were, as a further ground for the relief asked in the original bill.

It is the settled law of this country that an information in the nature of a quo warranto will lie against one who intrudes himself into the office of trustee of a church corporation. Ang.. & Ames on Corp. 9th Ed. 751. The defendants had been de facto elected to a corporate office, had accepted and acted in the same. In such case, the validity of their election could only be tried by a proceeding on information in the nature of quo warranto. Nor can the title to an office, in such case, be decided in a collateral suit; it must be by a direct proceeding. Baker et al. v. Backus, 32 Ill. 79, and cases cited; Regina v. Chester, 34 Eng. L. & Eq. 59; Conover v. Devlin, 24 Barb. 587; Mayor, etc. of New York v. Conover, 5 Abbott Pr. Rep. 171; North Baptist Church v. Parker, 36 Barb. R. 171. In this last case it was held that, persons claiming to have been elected to the office of trustees of a religious corporation,

Opinion of the Court.

the title to the office being disputed, and who have not obtained actual possession of the records and property of the corporation, and whose right to the office has not been determined by competent authority, have no right to use the name of the corporation in the suit against the trustees de facto to recover possession of the property of such corporation; and it was further held that, in a suit in the name and behalf of the corporation, the title to the office of trustees of such corporation can not be put in issue or litigated and determined.

It may be said that this was not a suit on behalf of the corporation, because the alleged trustees were named by their proper names. This fact does not change the character of the parties.

When the warden and fellows of Manchester college filed a bill in equity for titles in their corporate capacity, but in their proper names, in which a decree was pronounced from which both the plaintiffs and defendants appealed, and pending the appeal two of the fellows died, two new fellows were elected in their place, and an objection was taken on the ground that the new fellows were not parties, Lord ELDON held that there was no defect of parties because the parties named had sued in their corporate capacity, although it would have abated if the suit had been by them in their individual characters. Blackburn v. Jepson, 3 Swanst. 138. So here, if some of the plaintiffs had died pending the suit, and before decree, the suit would not have become defective by their death, although it would have abated if the suit had been by them in their individual characters, except so far as saved by the 40th section of the chancery act; (R. S. p. 98;) and in such case, would it be contended that there was either necessity or propriety in reviving under the statute in the name of legal representatives? Sec. 1 Daniell Ch. Pr. 27.

But, waiving this question and assuming that the plaintiffs sued in their individual capacity, and we are of the opinion that they have failed to make out a case for relief.

Opinion of the Court.

The deed was to certain persons as trustees of this church by the then name of the Scandinavian Evangelical Lutheran Church of Chicago, and the trust was expressed thus: "For the erection of a house for public religious worship, and none other, without the consent of the parties of the first part."

The deed, taken altogether, shows that the intention of the parties was, that the premises were to be held in trust for the erection and use of a house for public religious worship under the ministrations of an Evangelical Lutheran Church. The church was organized at the time, and its essential doctrines and tenets promulgated and known. To those we must look to ascertain the nature of the trust.

In Happy et al. v. Morton et al. 33 Ill. 407, Mr. Justice Beckwith, delivering the opinion of the court, said: "Courts of equity will exert their powers to prevent a misuse or an abuse of charitable trusts, and especially trusts of a religious nature, by trustees or by a majority of a society having possession of the trust property; but in all cases the trust and the abuse of it must be clearly established in accordance with the rules by which courts are governed in administering justice.

* *

Courts of equity do not interfere on account of inaccuracies of expression or inappropriate figures of speech, nor for departures from mathematical exactness in the language employed in inculcating the tenets of the donors. There must be a real, substantial departure from the purposes of the trust, such an one as amounts to a perversion of it, to authorize the exercise of equitable jurisdiction in granting relief.”

Tested by these rules, we are of the opinion that the plaintiffs have failed to make out a case on the ground of departure from the purposes of the trust.

The church has ever been, since its withdrawal from the Augustana Synod, as really and substantially an Evangelical Lutheran Church as it was at the time of the conveyance of the property to it.

There is, therefore, no right to any relief on that ground.

Opinion of the Court.

The only other grounds are:

First-The withdrawal from the Augustana Synod. Second-The retention of pastor Petersen after that synod had pronounced sentence against him.

First, then, as to the withdrawal from the synod: We are unable to perceive how that act should operate as a perversion and afford ground of forfeiture on the part of the majority. The church did not belong to that synod at the time the property was conveyed, but to the Northern Illinois Synod. If the relation is indissoluble then the church still belongs to the latter synod; but it seems that it was terminated in the same way as it was with the Augustana Synod, and in this the mirority acquiesced.

This church organization is unlike those of other denominations, where they can not exist at all except in subordination to a higher and controlling organization. This church had a complete legal existence, self-governing in character, before it united with any synod. It might have continued on as it began without being connected with any synod, and acquired a conveyance of lands in the same way as it did. Yet, so long as the church maintained and observed the doctrines, tenets and symbols of the Lutheran church, it would have been entitled to be regarded by other churches of the same denomination as orthodox, and to continue to use the trust property free from the interference of the civil courts. This conclusion is arrived at from a consideration of the testimony in the cause delivered by learned and reverend gentlemen of the Lutheran persuasion in respect to the laws, usages and customs of the church, and there is a clear preponderance of evidence in favor of the views of the defendants, and by which views their action seems to have been governed as well as that of a majority of the church, to the effect that, under such a connection as that with the Augustana Synod, it was competent for a majority of the church to sever the union at apy time, and that they lost none of their rights in the property of the church by so doing, and we may add that the prior

Syllabus.

practices of the church are strongly corroborative of the theory.

If, therefore, the majority had the right to sever their connection with the Augustana Synod, and exercised it on the 18th of April, the sentence of that body on the 27th prohibiting the Rev. Petersen from officiating as pastor of any church belonging to that synod, would not affect this church, which did not belong to it.

Upon the whole case, we are of the opinion that the decree of the court below dismissing the bill should be affirmed. Decree affirmed.

GEORGE W. HAYS

v.

THE OTTAWA, OSWEGO & FOX RIVER VALLEY

RAILROAD COMPANY.

1. PLEA―railroad subscription—sale of franchise-failure of consideration. A plea that avers that a subscription to the stock of a railroad company, to be paid when the road should be completed between certain points, and, on payment, the subscriber was to receive a certificate for a like amount of stock; and avers that the company had sold the road to another corporation, which was operating it: Held, the plea was bad on demurrer, as, if the charter authorized the sale, the party subscribing must have known that the power could be exercised; if there was no such power conferred, then the sale was void, and on payment and receipt of his certificate, he would hold his stock unimpaired, and there was not a failure of consideration.

2.

SAME-lease of the road. Where a plea averred the same facts, except that the company had leased the road: Held, if there was power to lease, then the subscriber must have known, when he subscribed, that the power might be exercised, and if there was no such power, then the attempt to lease would not affect the stock, as the lease would be void, and those running the road would be the mere agents of the original company. Such a plea presents no defense.