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congregation divided-about 30 members tion, relative to many practices in the church, thereof designating their organization as the such as to the propriety of having instru"Christian Church of Sand Creek," and the mental music in the church during church servremainder of the congregation, about 100 in ices, the employment by the congregation of number, designating their church organiza- ministers of the gospel for a fixed time and for tion as the "Church of Christ of Sand Creek" a fixed salary, the organization of missionary —and that since the division of the congrega societies and Sunday schools as separate ortion the defendants in error have worshiped ganizations outside the regular church conin said brick church and the plaintiff in er gregations, the raising of funds for the supror have worshiped in a schoolhouse near by. port of the gospel by holding church fairs and From the time of the organization of said festivals, and perhaps in other matters of a congregation, in 1834, up to its division, in similar character; and in that year, at the 1904, it was called the "Christian Church of annual August meeting held at the Sand Sand Creek” or the "Church of Christ of Creek Church, and where there was present Sand Creek”; the names “Christian Church" a large concourse of people drawn together or "Church of Christ" being used by the mem from different congregations, Rev. Daniel bers of the Sand Creek congregation to Sommers, a follower of Alexander Campbell, designate the congregation that worshiped preached a sermon upon what was characterin said log, frame, or brick church from 1834 ized as innovations upon the practices of the to 1904. The members of said congregation church, and afterwards a declaration, known were also at times designated as the "Disci as the “Sand Creek Declaration," was preples of Christ.” The

"Christian sented to the brethren present for their in. Church” and “Church of Christ" seem to have dorsement. That declaration condemned been used synonymously by the members of many, if not all, of the practices above referthe Sand Creek congregation; some prefer red to. It was signed by a few only of those ring one name and some the other. After who were present, and it was not considered the brick church was erected, in 1874, for a binding upon any member of the church or time the words “Christian Church, Erected upon any congregation, unless signed by the in 1874,” were conspicuously placed above the member or adopted by the church congregafront door of the church. Those words were tion, but was considered merely advisory to removed from above the door, however, sev the members of the church. The division eral years prior to 1904, and at a time when heretofore referred to from that time forward the church building was undergoing repairs. seems to have spread, and at the time this suit

The several church organizations formed was commenced the evidence shows the folby the followers of Alexander Campbell-and lowers of Alexander Campbell had divided they are numerous—at the time of their or upon those lines to such an extent that one ganization were, and now are, purely congre. faction in the church was characterized as gational in their government. That is, there progressives and the other conservatives; is no general conference, synod, presbytery, the members favoring the more liberal view or other similar body which exercises super- being called “Progressives," while those envision over said church congregations, but tertaining the more conservative view were each organization, in matters of practice, in called “Antis.” The persons entertaining the church government and otherwise, is sover progressive view appear latterly to have eign, and the congregations so organized have usually favored and taken in their church no creed except the Bible; the view of the organizations the name "Christian Church," followers of said Alexander Campbell being while those favoring the conservative view that, where the Bible speaks, the congrega have taken the name "Church of Christ” as tion and its several members are authorized the name of their church organizations. to speak, but where it is silent the congrega While there was some discussion between tion and the members thereof should also the members of the Sand Creek congregation remain silent. In 1849 there sprang up prior to the year 1904 in regard to the “Sand among the members of said religious sect Creek Declaration," and as to the propriety different views upon subjects of practice to of having instrumental music in church durbe adopted by the congregations with refer ing church services, the employment of a ence to matters upon which the Bible is silent minister of the gospel for a fixed time for a -one view being that, in the matters upon fixed salary, the organization of missionary which the Bible is silent, such silence should societies and Sunday schools outside the be construed as a positive prohibition; the church congregation, and the holding of other view being that, if the Bible is silent up church fairs and festivals for the purpose on a given subject pertaining to church govern of raising money for the support of the ment, then the congregation may formulate a church congregation, none of those matters rule in that particular for the government were ever brought before the Sand Creek of the congregation. The division along the congregation for discussion and determinalines above suggested seems to have grown tion, and that congregation, as such, never as the church membership increased, and took action with reference thereto, and none in 1889 there a wide difference of of the matters in church practice which are view between the several congregations, and characterized as innovations were ever inbetween the members of the same congrega dorsed or practiced by the Sand Creek con


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gregation, but that congregation, as a congre congregation except in so far as property gation, up to the time of its division in 1904, rights are involved (Ferraria v. Vasconcelles, remained conservative. Prior to 1904 the 23 Ill. 456; Ferraria v. Vasconcellos, 31 Ill. plaintiffs in error and the defendants in error 25; Kuns v. Robertson, 154 Ill. 394, 40 N. E. met as one congregation in the Sand Oreek

343), as it will readily be conceded by all brick church and communed together as one that every person in this country has the full congregation in apparent harmony. There and free right to entertain any religious bewas, however, shortly prior to that time, lief, to practice any religious principle, and some friction between the members of the

to teach any religious doctrine which he may Sand Creek congregation with reference to desire, so long as it does not violate the laws the powers exercised by the trustees, elders, of morality and propriety and does not and deacons of that congregation, in their infringe upon personal rights. Watson v. official capacity, in the conduct of the busi Jones, 13 Wall. 679, 20 L. Ed. 666. It is not, ness of the congregation; but no complaints therefore, within the province of this court were brought before the congregation, and to pronounce judgment upon the doctrines upon those matters there was at least ap taught by Alexander Campbell and believed parent harmony until in the year 1904. In and practiced by his followers, or to deterthe fall of 1903 a question arose in the con mine which faction of the Sand Creek congregation as to the propriety of using the gregation, in their practices in their church brick church as a place in which to hold a congregation, from an ecclesiastical standsinging school. The officers of the church point, is correct, as the courts have no conthat is, the trustees, elders and deacons, who cern with the questions whether a religious had acted as such and had controlled the congregation is progressive or conservative, affairs of the church organization for many whether a musical instrument shall be presfears--opposed the holding of the singing ent or absent during church services, whethschool in the church building at that time er the preacher shall be selected from the and refused to permit its use for that pur congregation or shall be a person employed pose. After some considerable discussion up by the congregation for a stated time at a on that question, in the spring of 1904 the stated salary, whether missionary societies dissensions which it appears had existed in and Sunday schools shall have separate orthe congregation broke out and the congre ganizations from the church congregations or gation divided. It was then discovered that not, or whether the funds necessary for the the organization, under the statute, which support of the church shall be contributed

had been attempted by the Sand Creek con wholly by its members or raised in part by a gregation in 1897 as the "Church of Christ fairs and festivals. All those questions, and

of Sand Creek” was invalid by reason of the kindred questions, must be left to the deterfact that the formalities required by the stat. mination of the church congregation. Inciute to effect a legal incorporation had not dentally, however, those questions in this been observed, and there were then made case bear upon the ownership of the church burried attempts by each faction to effect an property here involved, and for the purpose incorporation under the statute, the minority of determining to wbich faction of the Sand as the "Christian Church of Sand Creek” and Creek congregation the property here in questhe majority as the "Church of Christ of tion belongs the practices of the Sand Creek Sand Creek," and separate meetings were congregation in the past have a bearing. held by these factions, and the papers re When the members of a religious congrequired by the statute to be executed and filed gation divide, and one faction breaks away to effect an incorporation of a religious body from the congregation and forms a new orwere executed by each faction and were ganization, the title to the property of the filed in the office of the recorder of deeds of congregation will remain in that part of the Shelby county and recorded. The majority, congregation which adheres to the tenets and who were incorporated as the “Church of doctrines originally taught by the congregaChrist of Sand Creek,” were in possession of tion to wbose use the property was originally the church property, and the minority, who

dedicated. Ferraria v. Vasconcelles, supra; were incorporated as the “Christian Church," Ferraria v. Vasconcellos, supra; Church of were refused the use of said church building Christ v. Ohristian Church of Hammond, 193 by the majority and thereafter held their III. 144, 61 N. E. 1119. Here the property meetings in a schoolhouse near by. This liti was originally donated to the Sand Creek gation resulted, and the sole question here congregation, and has been in use by that conto be decided is, does the brick church erect gregation from 1834 to 1904, a period of ed by the Sand Creek congregation in 1874, seventy years. When the church site was and the land upon wbich it stands and which slightly changed, in 1874, and the brick is appurtenant thereto, belong to the plain- | church erected, the deed to the new site, tift in error the “Christian Church of Sand which was made in exchange for a deed to Creek,” or to the defendant in error the the old site, was made to the trustees of the "Church of Christ of Sand Creek ?"

Christian Church of Sand Creek. We think The courts of this state are powerless to that fact, however, entitled to but little pass upon the questions of difference between weight in determining the question to which the contending factions of the Sand Creek faction of the congregation the church prop

76 N.E.-45

It is,

erty should now be held to belong. At the and practiced, were properly held by the court time the deed was made the Sand Creek to have abandoned all interest in the property congregation had not been incorporated, and which belonged to the Sand Creek congrega. the congregation which worshiped at that tion at the time they left the organization place at that time was called at times the and effected a new organization Ferraria “Christian Church” or the “Church of Christ," v. Vasconcelles, supra; Ferrarla v. Vasconand no question seems to have been raised cellos, supra. as to the legal name of he congregation

wever, urged the great major worshiping at that place until about the time ity of the church congregations which are this suit was commenced. While the deed professed followers of Alexander Campbell was made to the trustees of the “Christian have adopted, in practice, the innovations Church,” and the words “Christian Church" from the practice of which defendants in erwere placed for a time above the church door, ror hold aloof, and that the plaintiffs in er. the business of the Sand Oreek congregation, ror are in accord with the spirit of a more such as issuing of church letters to depart enlightened age than the defendants in error, ing members, appears to have been carried on and that their practices are in harmony with in the name of the “Ohurch of Christ.” At the later teachings of Alexander Campbell the time of the execution of the deed the himself upon the subjects upon which they Sand Creek congregation had trustees, elders, differ in their practices and belief from the and deacons of the church, and the title to defendants in error. It appears from the the property conveyed by James A. Turren undisputed testimony that the churches or. tine and wife to the trustees of the Christian ganized in accordance with the teachings of Church clearly was intended by the grantors

Alexander Campbell were all congregational, to be vested by said deed in said trustees for and that these congregations, including the the benefit of the members who formed the Sand Creek .congregation, were, and always church congregation known as the "Sand have been, sovereign in all matters pertaining Creek congregation”; and although said Sand to church government; that is, each congre. Creek congregation was not incorporated, the gation has the right to determine for itselt deed was not void for the want of a grantee, what its practices in the manner of conductthe conveyance being in the nature of a ing the worship of God in the congregation charitable trust, and all the members of the

and its church business shall be, so long as Sand Creek congregation became, by virtue such parctices are not in conflict with the posof the execution of said conveyance, bene

itive commands of the Bible. Such being the ficiaries in the property then conveyed. Fer fact, although it might appear that every conraria v. Vasconcellos, 31 Ill. 25; Alden v. St. gregation, bearing the name "Christian Peter's Parish in the City of Sycamore, 158

Church" or "Church of Christ,” organized Ill. 631, 42 N. E. 392, 30 L. R. A. 232.

throughout the land, other than the Sand It is also clear from the evidence that the Creek congregation, had adopted the practices Sand Creek congregation, from the incep

heretofore referred to, the action of those tion of its organization to the time of the

congregations would not be binding upon the division in 1904, as a congregation, was op

Sand Creek congregation unless that congre. posed to any innovations in the practices of gation had indorsed and adopted them for the the church-that is, the congregation only

government of the Sand Creek congregation. acted in matters of practice in accordance In July, 1904, after the plaintiffs in error with what they believed to be the positive had broken away from the Sand Creek concommands of God as found in the Old and

gregation, the members of the Sand Creek New Testaments; and the defendants in er congregation who had not seceded met and ror, at the time of the division of the congre pursuant to the statute incorporated as the gation, and since that time, have maintained "Church of Christ of Sand Creek.” By that that position, and appear to have maintained act of incorporation all the property of the from the beginning, and now maintain, the ten Sand Creek congregation became immediateets and doctrines which were taught in the Sand ly vested in that corporation (Dubs v. Egli, Creek congregation at its organization, and 167 Ill. 514, 47 N. E. 766), and its title there which have been maintained and taught in to was not divested by the act of the plainthat congregation all through its history, tiffs in error in subsequently incorporating and the plaintiffs in error, since their sepa

as the "Christian Church of Sand Creek." ration from the Sand Creek congregation, Happy v. Morton, 33 Ill. 398. have taught and practiced what are known In the determination of the question here and characterized as the "innovations." This involved it must be borne in mind that this being true, defendants in error were right is a contest between two incorporated church fully held by the trial court to be the suc organizations, and that the only question cessors and representatives of the original that this court can deal with is, in which donees of the church property originally corporation is the title to the church propdonated to the Sand Creek congregation and erty which formerly belonged to the Sand the lawful owners of said property; and the Creek congregation now vested? From a plaintiffs in error, having seceded from the careful examination of the record in this case, Sand Creek congregation and effected a new which contains over 1600 pages, we have organization where the innovations are taught reached the conclusion that the learned chan

cellor who heard the case below rightfully CARTWRIGHT, C. J. The circuit court reached the conclusion that the title to that of Peoria county sustained the demurrer property, at the time of the commencement of the Peoria Law Library Association, a corof this suit, was in the defendant in error poration, and other appellees, who are officers the "Church of Christ of Sand Creek," and of the corporation, to the bill of complaint of not in the plaintiff in error the “Christian Thomas Cratty, the appellant, and dismissed Church of Sand Creek," and rightfully so de. the bill. The Appellate Court for the Second creed.

District affirmed the decree. The decree of the circuit court will there The bill is for an accounting between comfore be affirmed.

plainant, as the owner of 21 shares of the capDecree affirmed.

ital 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 (219 Ill. 516.)

due for dividends upon said shares, and for CRATTY v. PEORIA LAW LIBRARY the appointment of a receiver, and to dissolve ASS'N et al.

the corporation and wind up its affairs. The (Supreme Court of Illinois. Feb. 21, 1906.)

facts stated in the bill, which for the pur1. APPEAL-REVIEW-DECISIONS OF INTERME

poses of the demurrer are to be taken as DIATE COURTS.

true, are as follows: Complainant, who was On appeal to the Supreme Court from the an attorney practicing law in the city of Appellate Court, questions as to the forfeiture Peoria, had accumulated a large and valuable and cancellation of the franchise of a corpora

law library, and with a considerable number tion cannot be considered, since they could not be considered or decided by the Appellate Court.

of other lawyers agreed to organize a corpo2 EQUITY_JURISDICTION-REMEDY AT LAW

ration and establish a more public library. COMPELLING DECLARATION OF DIVIDENDS. Law books transferred to the corporation

A stockholder may maintain a suit in equity were to be appraised at their fair cash value, to compel a declaration and payment of dividends; an action at law to recover dividends be

and such as were not paid for in money were ing available only after dividends have been de

to be paid for in capital stock, which was to clared.

draw a definite sum per annum as dividends. 3. SAME-DISCRIMINATION BETWEEN STOCK An agreement to that effect was made in HOLDERS.

writing, and in pursuance of the agreement A bill in equity may be maintained by a stockholder to prevent discrimination in the dis

the corporation was organized on January 6, tribution of dividends among stockholders of the 1879. Soon after the board of directors adopt. same class.

ed a set of by-laws, among which were the 4. SAME-PROVISION IN BY-LAWS.

following: By-laws of a corporation guarantying an

"Sec. 12. The association guaranties to 8 per cent. annual dividend to every stockholder constitute a valid contract between the cor

every stockholder a dividend of eight per poration and the stockholders purchasing stock cent. per annum on the amount of paid-in in reliance thereon.

stock held by him or them from the date of 5. SAME--EXPENSES OF CORPORATION.

such payment, which dividend shall be a While a contract of an incorporated law library association guarantying an 8 per cent.

charge against the association, and the prodividend to stockholders is invalid, in so far as duction of the certificate of stock or receipt it authorizes the payment of the dividends in of payment shall entitle the holder to the preference to the payment of necessary amount of such dividend. Such dividend penses and keeping the books in repair, so that the capital stock shall not be impaired, the con

shall be due and payable on the first day of tract may be enforced by applying to the pay January in each year." ment of dividends the net income after de “Sec. 15. The board of directors shall fix ducting those expenses, before the addition of new books to the library.

the annual dues of members at such an 6. SAME-LACHES.

amount as may be necessary to raise a suffiWhere a corporation's by-laws guarantied cient sum, annually, to pay: First, a divithe payment of 8 per cent. dividends to the dend of eight per cent. per annum on the stockholders, a stockholder who was not paid paid-in capital stock of the association; secany dividends for several years, but never acquiesced in the failure to make the payments, and

ond, the necessary expenses of the associarepeatedly sought an accounting, and never

tion; third, to keep up the continuation of all abandoned his right to the dividends, was not the reports and legal periodicals owned by the barred by laches from enforcing their payment. association; and, fourth, to purchase new Appeal from Appellate Court, Second Dis

books and legal publications. And shall trict.

grade, membership into four classes—the Action by Thomas Cratty against the

first to be composed of all practicing atPeoria Law Library Association and others.

torneys who have been admitted to pracFrom a judgment of the Appellate Court,

tice for ten years; the second, those who affirming a decree dismissing the bill of

have been admitted for five years; the third, complaint, the complainant appeals. Re

those who have been admitted less than five versed.

years and all attorneys not engaged in prac

tice; and the fourth, of all students and David McCullough and Judson Starr, for other persons desiring membership. appellant. J. H. Sedgwick, F. H. Tichenor, "Sec. 16. That until otherwise provided by and George T. Page, for appellees.

resolution, to be entered upon the records of



the association, the annual dues for the re the Appellate Court, which could not conspective grades of membership shall be as sider or decide them. follows: Members of the first class, $80; Counsel for appellees say that appellant members of the second class, $60; members has no standing in a court of equity because of the third class, $40; members of the fourth he has a complete remedy at law by an acclass, $20."

tion for any dividends that may be due him, In pursuance of said agreement and by but as no dividends have been declared an laws complainant transferred his library, action at law would not lie to collect them. amounting to nearly 2,000 volumes, to the When dividends have been regularly declared corporation, and received payment, partly in they become the absolute property of the money and the balance in 21 shares of the stockholders, and the debt may be collected capital stock of the par value of $100 each. by an action at law. A proceeding to comSo long as he remained in practice in Peoria | pel directors to declare and pay a dividend he paid all dues at the rate of $80 per year is of an equitable nature, and a court of and received 8 per cent, per annum on his equity is the proper tribunal in which to shares of stock. He left there on May 1, institute the action. Cook on Stock and Stock1880, and since that time has not received holders (20 Ed.) 18 -544; 9 Am. & Eng. Ency. of any payment, but the corporation for many Law (2d Ed.) 687. Generally, the question of ‘years paid dividends to other stockholders declaring a dividend is intrusted to the sound who continued to practice in Peoria, the discretion of the directors; and, as to common amount of which payments complainant is stock, such discretion will not be interfered unable to state. Complainant repeatedly with by a court of equity in the absence of applied to the association and its officers and bad faith or arbitrary or unjustifiable consought to obtain payment of dividends, but duct. But different rules apply with respect the corporation refused to account with him to the right of holders of preferred stock to or make any payment, claiming that there invoke the aid of a court to order the decla. were no surplus funds on hand out of which ration and payment of dividends on their payments of dividends could be made. The stock. 9 Am. & Eng. Ency. of Law, supra. affairs of the corporation have been managed

There is another ground for equitable inby a few persons who have been engaged in terference in the bill. Dividends among buying up the shares of stock at much less

stockholders of the same class must always than par value. There has been no meeting be equal and without discrimination, and a of stockholders since January, 1895, although bill in equity may be maintained by a stock. the by-laws provide for annual meetings, and holder to prevent discrimination or unequal no meeting of directors has been called for

or unfair distribution. Cook on Stock and several years. The bill charges that large Stockholders, 542. The bill alleges that amounts of money have been received by the

there has been discrimination in the pay. corporation, out of which the greater portion, ment of dividends as between different stock. if not the entire amount, of dividends could holders of the same class, and such action is have been paid, but that they were misapplied not within the discretion of the officers. The to the payment of expenses and the purchase by-laws in question operate as a contract beof books for the library; that the corpora tween the corporation and the shareholders, tion has been substantially abandoned and

who took their shares in reliance upon them. is only kept up for the benefit of a few indi 10 Cyc. 651. The meaning of the contract viduals; and that the earnings of surplus created by the by-laws is not obscure, and it funds above the payment of expenses and ad is both usual and proper to assume that ditions to the library is not a condition prec- parties intend by their engagements what the edent to complainant's right to dividends. language used by them naturally imports. He therefore asks for an accounting of the The contract is that dividends of 8 per cent. amounts of money received by the corpora per annum shall be paid on the shares of tion and its officers and misapplied or mis stock; that the board of directors shall fix appropriated.

the annual dues at such amounts as may There are allegations in the bill that the be necessary to raise a sum sufficient to pay: charter of the corporation has been forfeited First, the dividends; second, the necessary esand canceled for a failure to make reports penses; third, to keep up the continuation of required by the statute, and that under the all reports and periodicals; fourth, to purfacts alleged the corporation has no right to chase new books and legal publications. There continue in operation, and should be wound is no objection to an agreement for preferup and its effects divided among the stock red or guarantied stock in the original organi. holders. But all such allegations affecting zation of a corporation, where, as in this the franchise were abandoned by taking the case, all the parties agree to it. Whether appeal to the Appellate Court. The franchise the stock is to be called interest-bearing could not be involved in the appeal to that stock, preferred stock, or guarantied stock court, and, although counsel on both sides makes no difference, as the terms, when aphave argued the questions relating to the dis plied to shares of stock, mean practically the solution of the corporation and the forfeiture same thing. Cook on Stock and Stockholders. of its franchise, such questions are not in $ 538. The contract, like any other one is volved in an appeal from the judgment of not to be abrogated or set aside by con

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