congregation divided-about 30 members thereof designating their organization as the "Christian Church of Sand Creek," and the remainder of the congregation, about 100 in number, designating their church organization as the "Church of Christ of Sand Creek" -and that since the division of the congregation the defendants in error have worshiped in said brick church and the plaintiff in error have worshiped in a schoolhouse near by. From the time of the organization of said congregation, in 1834, up to its division, in 1904, it was called the "Christian Church of Sand Creek" or the "Church of Christ of Sand Creek"; the names "Christian Church" or "Church of Christ" being used by the members of the Sand Creek congregation to designate the congregation that worshiped in said log, frame, or brick church from 1834 to 1904. The members of said congregation were also at times designated as the "Disciples of Christ." The names "Christian Church" and "Church of Christ" seem to have been used synonymously by the members of the Sand Creek congregation; some preferring one name and some the other. After the brick church was erected, in 1874, for a time the words "Christian Church, Erected in 1874," were conspicuously placed above the front door of the church. Those words were removed from above the door, however, several years prior to 1904, and at a time when the church building was undergoing repairs.

The several church organizations formed by the followers of Alexander Campbell-and they are numerous-at the time of their organization were, and now are, purely congre gational in their government. That is, there is no general conference, synod, presbytery, or other similar body which exercises supervision over said church congregations, but each organization, in matters of practice, in church government and otherwise, is sovereign, and the congregations so organized have no creed except the Bible; the view of the followers of said Alexander Campbell being that, where the Bible speaks, the congregation and its several members are authorized to speak, but where it is silent the congregation and the members thereof should also remain silent. In 1849 there sprang up among the members of said religious sect different views upon subjects of practice to be adopted by the congregations with reference to matters upon which the Bible is silent -one view being that, in the matters upon which the Bible is silent, such silence should be construed as a positive prohibition; the other view being that, if the Bible is silent upon a given subject pertaining to church government, then the congregation may formulate a rule in that particular for the government of the congregation. The division along the lines above suggested seems to have grown as the church membership increased, and in 1889 there was a wide difference of view between the several congregations, and between the members of the same congrega

tion, relative to many practices in the church, such as to the propriety of having instrumental music in the church during church services, the employment by the congregation of ministers of the gospel for a fixed time and for a fixed salary, the organization of missionary societies and Sunday schools as separate organizations outside the regular church congregations, the raising of funds for the support of the gospel by holding church fairs and festivals, and perhaps in other matters of a similar character; and in that year, at the annual August meeting held at the Sand Creek Church, and where there was present a large concourse of people drawn together from different congregations, Rev. Daniel Sommers, a follower of Alexander Campbell, preached a sermon upon what was characterized as innovations upon the practices of the church, and afterwards a declaration, known as the "Sand Creek Declaration," was presented to the brethren present for their indorsement. That declaration condemned many, if not all, of the practices above referred to. It was signed by a few only of those who were present, and it was not considered binding upon any member of the church or upon any congregation, unless signed by the member or adopted by the church congregation, but was considered merely advisory to the members of the church. The division heretofore referred to from that time forward seems to have spread, and at the time this suit was commenced the evidence shows the followers of Alexander Campbell had divided upon those lines to such an extent that one faction in the church was characterized as progressives and the other conservatives; the members favoring the more liberal view being called "Progressives," while those entertaining the more conservative view were called "Antis." The persons entertaining the progressive view appear latterly to have usually favored and taken in their church organizations the name "Christian Church,” while those favoring the conservative view have taken the name "Church of Christ" as the name of their church organizations.

While there was some discussion between the members of the Sand Creek congregation prior to the year 1904 in regard to the "Sand Creek Declaration," and as to the propriety of having instrumental music in church during church services, the employment of a minister of the gospel for a fixed time for a fixed salary, the organization of missionary societies and Sunday schools outside the church congregation, and the holding of church fairs and festivals for the purpose of raising money for the support of the church congregation, none of those matters were ever brought before the Sand Creek congregation for discussion and determination, and that congregation, as such, never took action with reference thereto, and none of the matters in church practice which are characterized as innovations were ever indorsed or practiced by the Sand Creek con

gregation, but that congregation, as a congregation, up to the time of its division in 1904, remained conservative. Prior to 1904 the plaintiffs in error and the defendants in error met as one congregation in the Sand Creek brick church and communed together as one congregation in apparent harmony. There was, however, shortly prior to that time, some friction between the members of the Sand Creek congregation with reference to the powers exercised by the trustees, elders, and deacons of that congregation, in their official capacity, in the conduct of the business of the congregation; but no complaints were brought before the congregation, and upon those matters there was at least apparent harmony until in the year 1904. In the fall of 1903 a question arose in the congregation as to the propriety of using the brick church as a place in which to hold a singing school. The officers of the churchthat is, the trustees, elders and deacons, who had acted as such and had controlled the affairs of the church organization for many Fears-opposed the holding of the singing school in the church building at that time and refused to permit its use for that purpose. After some considerable discussion upon that question, in the spring of 1904 the dissensions which it appears had existed in the congregation broke out and the congregation divided. It was then discovered that the organization, under the statute, which had been attempted by the Sand Creek congregation in 1897 as the "Church of Christ of Sand Creek" was invalid by reason of the fact that the formalities required by the statute to effect a legal incorporation had not been observed, and there were then made hurried attempts by each faction to effect an incorporation under the statute, the minority as the "Christian Church of Sand Creek" and the majority as the "Church of Christ of Sand Creek," and separate meetings were held by these factions, and the papers required by the statute to be executed and filed to effect an incorporation of a religious body were executed by each faction and were filed in the office of the recorder of deeds of Shelby county and recorded. The majority, who were incorporated as the "Church of Christ of Sand Creek," were in possession of the church property, and the minority, who were incorporated as the "Christian Church," were refused the use of said church building by the majority and thereafter held their meetings in a schoolhouse near by. This litigation resulted, and the sole question here to be decided is, does the brick church erected by the Sand Creek congregation in 1874, and the land upon which it stands and which is appurtenant thereto, belong to the plaintiff in error the "Christian Church of Sand Creek," or to the defendant in error the "Church of Christ of Sand Creek?"

The courts of this state are powerless to pass upon the questions of difference between the contending factions of the Sand Creek 76 N.E.-45

congregation except in so far as property rights are involved (Ferraria v. Vasconcelles, 23 Ill. 456; Ferraria v. Vasconcellos, 31 Ill. 25; Kuns v. Robertson, 154 III. 394, 40 N. E. 343), as it will readily be conceded by all that every person in this country has the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which he may desire, so long as it does not violate the laws of morality and propriety and does not infringe upon personal rights. Watson v. Jones, 13 Wall. 679, 20 L. Ed. 666. It is not, therefore, within the province of this court to pronounce judgment upon the doctrines taught by Alexander Campbell and believed and practiced by his followers, or to determine which faction of the Sand Creek congregation, in their practices in their church congregation, from an ecclesiastical standpoint, is correct, as the courts have no concern with the questions whether a religious congregation is progressive or conservative, whether a musical instrument shall be present or absent during church services, whether the preacher shall be selected from the congregation or shall be a person employed by the congregation for a stated time at a stated salary, whether missionary societies and Sunday schools shall have separate organizations from the church congregations or not, or whether the funds necessary for the support of the church shall be contributed wholly by its members or raised in part by fairs and festivals. All those questions, and kindred questions, must be left to the determination of the church congregation. Incidentally, however, those questions in this case bear upon the ownership of the church property here involved, and for the purpose of determining to which faction of the Sand Creek congregation the property here in question belongs the practices of the Sand Creek congregation in the past have a bearing.

When the members of a religious congregation divide, and one faction breaks away from the congregation and forms a new organization, the title to the property of the congregation will remain in that part of the congregation which adheres to the tenets and doctrines originally taught by the congregation to whose use the property was originally dedicated. Ferraria v. Vasconcelles, supra; Ferraria v. Vasconcellos, supra; Church of Christ v. Christian Church of Hammond, 193 Ill. 144, 61 N. E. 1119. Here the property was originally donated to the Sand Creek congregation, and has been in use by that congregation from 1834 to 1904, a period of seventy years. When the church site was slightly changed, in 1874, and the brick church erected, the deed to the new site, which was made in exchange for a deed to the old site, was made to the trustees of the Christian Church of Sand Creek. We think that fact, however, entitled to but little weight in determining the question to which faction of the congregation the church prop

erty should now be held to belong. At the time the deed was made the Sand Creek congregation had not been incorporated, and the congregation which worshiped at that place at that time was called at times the "Christian Church" or the "Church of Christ," and no question seems to have been raised as to the legal name of the congregation worshiping at that place until about the time this suit was commenced. While the deed was made to the trustees of the "Christian Church," and the words "Christian Church" were placed for a time above the church door, the business of the Sand Creek congregation, such as issuing of church letters to departing members, appears to have been carried on in the name of the "Church of Christ." At the time of the execution of the deed the Sand Creek congregation had trustees, elders, and deacons of the church, and the title to the property conveyed by James A. Turrentine and wife to the trustees of the Christian Church clearly was intended by the grantors to be vested by said deed in said trustees for the benefit of the members who formed the church congregation known as the "Sand Creek congregation"; and although said Sand Creek congregation was not incorporated, the deed was not void for the want of a grantee, the conveyance being in the nature of a charitable trust, and all the members of the Sand Creek congregation became, by virtue of the execution of said conveyance, beneficiaries in the property then conveyed. Ferraria v. Vasconcellos, 31 Ill. 25; Alden v. St. Peter's Parish in the City of Sycamore, 158 Ill. 631, 42 N. E. 392, 30 L. R. A. 232.

It is also clear from the evidence that the Sand Creek congregation, from the inception of its organization to the time of the division in 1904, as a congregation, was opposed to any innovations in the practices of the church-that is, the congregation only acted in matters of practice in accordance with what they believed to be the positive commands of God as found in the Old and New Testaments; and the defendants in error, at the time of the division of the congregation, and since that time, have maintained that position, and appear to have maintained from the beginning, and now maintain, the tenets and doctrines which were taught in the Sand Creek congregation at its organization, and which have been maintained and taught in that congregation all through its history, and the plaintiffs in error, since their separation from the Sand Creek congregation, have taught and practiced what are known and characterized as the "innovations." This being true, defendants in error were rightfully held by the trial court to be the successors and representatives of the original donees of the church property originally donated to the Sand Creek congregation and the lawful owners of said property; and the plaintiffs in error, having seceded from the Sand Creek congregation and effected a new organization where the innovations are taught

and practiced, were properly held by the court to have abandoned all interest in the property which belonged to the Sand Creek congrega. tion at the time they left the organization and effected a new organization. Ferraria

v. Vasconcelles, supra; Ferraria v. Vasconcellos, supra.

It is, however, urged that the great majority of the church congregations which are professed followers of Alexander Campbell have adopted, in practice, the innovations from the practice of which defendants in error hold aloof, and that the plaintiffs in error are in accord with the spirit of a more enlightened age than the defendants in error, and that their practices are in harmony with the later teachings of Alexander Campbell himself upon the subjects upon which they differ in their practices and belief from the defendants in error. It appears from the undisputed testimony that the churches organized in accordance with the teachings of Alexander Campbell were all congregational, and that these congregations, including the Sand Creek congregation, were, and always have been, sovereign in all matters pertaining to church government; that is, each congregation has the right to determine for itself what its practices in the manner of conducting the worship of God in the congregation and its church business shall be, so long as such parctices are not in conflict with the positive commands of the Bible. Such being the fact, although it might appear that every congregation, bearing the name "Christian Church" or "Church of Christ," organized throughout the land, other than the Sand Creek congregation, had adopted the practices heretofore referred to, the action of those congregations would not be binding upon the Sand Creek congregation unless that congre gation had indorsed and adopted them for the government of the Sand Creek congregation. In July, 1904, after the plaintiffs in error had broken away from the Sand Creek congregation, the members of the Sand Creek congregation who had not seceded met and pursuant to the statute incorporated as the "Church of Christ of Sand Creek." By that act of incorporation all the property of the Sand Creek congregation became immediately vested in that corporation (Dubs v. Egli, 167 Ill. 514, 47 N. E. 766), and its title thereto was not divested by the act of the plaintiffs in error in subsequently incorporating as the "Christian Church of Sand Creek." Happy v. Morton, 33 Ill. 398.

In the determination of the question here involved it must be borne in mind that this is a contest between two incorporated church organizations, and that the only question that this court can deal with is, in which corporation is the title to the church property which formerly belonged to the Sand Creek congregation now vested? From a careful examination of the record in this case, which contains over 1600 pages, we have reached the conclusion that the learned chan

cellor who heard the case below rightfully reached the conclusion that the title to that property, at the time of the commencement of this suit, was in the defendant in error the "Church of Christ of Sand Creek," and not in the plaintiff in error the "Christian Church of Sand Creek," and rightfully so decreed.

The decree of the circuit court will therefore be affirmed.

Decree affirmed.

(219 Ill. 516.)

CRATTY v. PEORIA LAW LIBRARY
ASS'N et al.

(Supreme Court of Illinois. Feb. 21, 1906.) 1. APPEAL-REVIEW-DECISIONS OF INTERMEDIATE COURTS.

On appeal to the Supreme Court from the Appellate Court, questions as to the forfeiture and cancellation of the franchise of a corporation cannot be considered, since they could not be considered or decided by the Appellate Court. 2 EQUITY-JURISDICTION-REMEDY AT LAWCOMPELLING DECLARATION OF DIVIDENDS.

A stockholder may maintain a suit in equity to compel a declaration and payment of dividends; an action at law to recover dividends being available only after dividends have been declared.

3. SAME DISCRIMINATION BETWEEN STOCKHOLDERS.

A bill in equity may be maintained by a stockholder to prevent discrimination in the distribution of dividends among stockholders of the same class.

4. SAME-PROVISION IN BY-LAWS.

By-laws of a corporation guarantying an 8 per cent. annual dividend to every stockholder constitute a valid contract between the corporation and the stockholders purchasing stock in reliance thereon.

5. SAME-Expenses of CORPORATION.

6. SAME-LACHES.

Where a corporation's by-laws guarantied the payment of 8 per cent. dividends to the stockholders, a stockholder who was not paid any dividends for several years, but never acquiesced in the failure to make the payments, and repeatedly sought an accounting, and never abandoned his right to the dividends, was not barred by laches from enforcing their payment.

Appeal from Appellate Court, Second District.

Action by Thomas Cratty against the Peoria Law Library Association and others. From a judgment of the Appellate Court, affirming a decree dismissing the bill of complaint, the complainant appeals. Reversed.

David McCullough and Judson Starr, for appellant. J. H. Sedgwick, F. H. Tichenor, and George T. Page, for appellees.

CARTWRIGHT, C. J. The circuit court of Peoria county sustained the demurrer of the Peoria Law Library Association, a corporation, and other appellees, who are officers of the corporation, to the bill of complaint of Thomas Cratty, the appellant, and dismissed the bill. The Appellate Court for the Second District affirmed the decree.

The bill is for an accounting between complainant, as the owner of 21 shares of the capital stock of the corporation, of the par value of $2,100, and the corporation and its officers, and for a decree for whatever may be found due for dividends upon said shares, and for the appointment of a receiver, and to dissolve the corporation and wind up its affairs. The facts stated in the bill, which for the purposes of the demurrer are to be taken as true, are as follows: Complainant, who was an attorney practicing law in the city of Peoria, had accumulated a large and valuable law library, and with a considerable number of other lawyers agreed to organize a corporation and establish a more public library. Law books transferred to the corporation were to be appraised at their fair cash value, and such as were not paid for in money were to be paid for in capital stock, which was to draw a definite sum per annum as dividends. An agreement to that effect was made in writing, and in pursuance of the agreement the corporation was organized on January 6, 1879. Soon after the board of directors adopted a set of by-laws, among which were the following:

"Sec. 12. The association guaranties to every stockholder a dividend of eight per cent. per annum on the amount of paid-in stock held by him or them from the date of such payment, which dividend shall be a charge against the association, and the production of the certificate of stock or receipt of payment shall entitle the holder to the amount of such dividend. Such dividend shall be due and payable on the first day of January in each year."

"Sec. 15. The board of directors shall fix the annual dues of members at such an amount as may be necessary to raise a sufficient sum, annually, to pay: First, a dividend of eight per cent. per annum on the paid-in capital stock of the association; second, the necessary expenses of the association; third, to keep up the continuation of all the reports and legal periodicals owned by the association; and, fourth, to purchase new books and legal publications. And shall grade, membership into four classes-the first to be composed of all practicing attorneys who have been admitted to practice for ten years; the second, those who have been admitted for five years; the third, those who have been admitted less than five years and all attorneys not engaged in practice; and the fourth, of all students and other persons desiring membership.

"Sec. 16. That until otherwise provided by resolution, to be entered upon the records of

the association, the annual dues for the respective grades of membership shall be as follows: Members of the first class, $80; members of the second class, $60; members of the third class, $40; members of the fourth class, $20."

In pursuance of said agreement and bylaws complainant transferred his library, amounting to nearly 2,000 volumes, to the corporation, and received payment, partly in money and the balance in 21 shares of the capital stock of the par value of $100 each. So long as he remained in practice in Peoria he paid all dues at the rate of $80 per year and received 8 per cent. per annum on his shares of stock. He left there on May 1, 1880, and since that time has not received any payment, but the corporation for many years paid dividends to other stockholders who continued to practice in Peoria, the amount of which payments complainant is unable to state. Complainant repeatedly applied to the association and its officers and sought to obtain payment of dividends, but the corporation refused to account with him or make any payment, claiming that there were no surplus funds on hand out of which payments of dividends could be made. The affairs of the corporation have been managed by a few persons who have been engaged in buying up the shares of stock at much less than par value. There has been no meeting of stockholders since January, 1895, although the by-laws provide for annual meetings, and no meeting of directors has been called for several years. The bill charges that large amounts of money have been received by the corporation, out of which the greater portion, if not the entire amount, of dividends could have been paid, but that they were misapplied to the payment of expenses and the purchase of books for the library; that the corporation has been substantially abandoned and is only kept up for the benefit of a few individuals; and that the earnings of surplus funds above the payment of expenses and additions to the library is not a condition precedent to complainant's right to dividends. He therefore asks for an accounting of the amounts of money received by the corporation and its officers and misapplied or misappropriated.

There are allegations in the bill that the charter of the corporation has been forfeited and canceled for a failure to make reports required by the statute, and that under the facts alleged the corporation has no right to continue in operation, and should be wound up and its effects divided among the stockholders. But all such allegations affecting the franchise were abandoned by taking the appeal to the Appellate Court. The franchise could not be involved in the appeal to that court, and, although counsel on both sides have argued the questions relating to the dissolution of the corporation and the forfeiture of its franchise, such questions are not involved in an appeal from the judgment of

the Appellate Court, which could not consider or decide them.

Counsel for appellees say that appellant has no standing in a court of equity because he has a complete remedy at law by an action for any dividends that may be due him, but as no dividends have been declared an action at law would not lie to collect them. When dividends have been regularly declared they become the absolute property of the stockholders, and the debt may be collected by an action at law. A proceeding to compel directors to declare and pay a dividend is of an equitable nature, and a court of equity is the proper tribunal in which to institute the action. Cook on Stock and Stockholders (2d Ed.) § ,544; 9 Am. & Eng. Ency, of Law (2d Ed.) 687. Generally, the question of declaring a dividend is intrusted to the sound discretion of the directors; and, as to common stock, such discretion will not be interfered with by a court of equity in the absence of bad faith or arbitrary or unjustifiable conduct. But different rules apply with respect to the right of holders of preferred stock to invoke the aid of a court to order the declaration and payment of dividends on their stock. 9 Am. & Eng. Ency. of Law, supra.

There is another ground for equitable interference in the bill. Dividends among stockholders of the same class must always be equal and without discrimination, and a bill in equity may be maintained by a stockholder to prevent discrimination or unequal or unfair distribution. Cook on Stock and Stockholders, § 542. The bill alleges that there has been discrimination in the payment of dividends as between different stock. holders of the same class, and such action is not within the discretion of the officers. The by-laws in question operate as a contract between the corporation and the shareholders, who took their shares in reliance upon them. 10 Cyc. 651. The meaning of the contract created by the by-laws is not obscure, and it is both usual and proper to assume that parties intend by their engagements what the language used by them naturally imports. The contract is that dividends of 8 per cent. per annum shall be paid on the shares of stock; that the board of directors shall fix the annual dues at such amounts as may be necessary to raise a sum sufficient to pay: First, the dividends; second, the necessary expenses; third, to keep up the continuation of all reports and periodicals; fourth, to purchase new books and legal publications. There is no objection to an agreement for preferred or guarantied stock in the original organization of a corporation, where, as in this case, all the parties agree to it. Whether the stock is to be called interest-bearing stock, preferred stock, or guarantied stock makes no difference, as the terms, when applied to shares of stock, mean practically the same thing. Cook on Stock and Stockholders. § 538. The contract, like any other one. is not to be abrogated or set aside by con