author: Clark, J.

text:
    PEOPLE v. CLUM.
    1. Statutes — Constitutional Law — Collateral Attack — Courts —Recorder’s Court — Criminal Law.
    The validity of the statute under which the recorder’s court of the city of Detroit was organized (Act No. 369, Pub. Acts 1919) could, not be attacked collaterally in a prosecution in said court for violation of the “blue sky law” (3 Comp. Laws 1915, § 11945 et. seq.), (Gildemeister v. Lindsay, 212 Mich. 299.
    2. Indictment and Information — Amendment—Time of Committing Offense — Criminal Law — “Blue Sky Law.”
    An information charging a violation of the “blue sky law” on May 31st, was properly allowed to be amended to read “on the 31st day of May and divers other days and dates,” under 3 Comp. Laws 1915, §§ 15746-15749, since time was not of the essence of the offense charged, and no claim was made that the amendment necessitated a continuance to enable the defendant to go to, trial safely.
    3. Criminal Law — “Blue Sky Law” — Stock—Investment Company.
    In a prosecution for violation of the “blue sky law,” the shares of an unincorporated association, organized under the common law for the purpose of collecting, for a consideration, “slow pay” accounts of business men, members of the association, having a declaration of trust in favor of the association recorded in the office of the register of deeds of the county, is “stock” and the association an investment company within the meaning of section 2 of said statute (3 Comp. Laws 1915, § 11946).
    4. Same — “Dealer”—Evidence—Question eor Jury.
    Where there was evidence connecting defendant, the secretary of the association, with sales “made in the course of continued and successive transactions of a similar nature,” he could not complain because the question of whether he was a “dealer” within the meaning of the act was treated by the court as a question of fact and submitted to the jury.
    5. Same — Exceptions—Trust Capacity.
    That defendant made the sales of stock complained of as secretary of the association, would not bring him within the exception of section 10 of the statute (3 Comp. Laws 0.915, § 11954), since he was not acting in a trust capacity “created by law.”
    Error to recorder’s court of Detroit; Keidan (Harry B.), J.
    Submitted January 13, 1921.
    (Docket No. 119.)
    Decided March 30, 1921.
    Frederick H. Clum was convicted of violating the “blue sky law,” and sentenced to' imprisonment for not less than 6 months nor more than 1 year in the Detroit house of correction.
    Affirmed.

      Grece & McDonald, for appellant.

      Merlin Wiley, Attorney General, Matthew H. Bishop, Prosecuting Attorney, and Collins B. Scott, Assistant Prosecuting Attorney, for the people.
   Clark, J.

Defendant has appealed from a conviction in recorder’s court of Detroit, Wayne county, for a violation of Act No. 46, Pub. Acts 1915 (3 Comp. Laws 1915, | 11945 et seq.), known as the “blue sky law.”

The information charged that defendant with another

“heretofore, to wit, on the 31st day of May, in A. D. 1920, at the city of Detroit, in the county aforesaid, was then and there a dealer within the meaning of Act No. 46 of the Public Acts of the State of Michigan for the year 1915, and did then and there offer for sale to Richard C. O’Donnell and Annie M. Clark and to divers other persons, the stock of a certain company known and designated as the National Business Men’s Protective Association of Detroit, said company being then and there an investment company within the meaning of Act No. 46 of the: Public Acts of the State of Michigan for the year' 1915, and then and there selling, negotiating for the sale of its stock by itself and through others.” * * *

The information then negatived the exceptions contained in section 3 of the act. It recited that there: had not been a filing with Michigan securities commission of the statements, plan, prospectus, proposed advertising, copy of articles of incorporation, constitution and by-laws or other papers pertaining to the organization as required by the act, and it continued:

“And it, the said investment company, not having paid any filing fee whatsoever, and the said Frederick H. Clum, and John O. Carter, offering said stocks, as aforesaid, of the said National Business Men’s Protective Association of Detroit, in the course of continued successive transactions of a similar nature, and not being then and there the issuer of said stocks; and they the said Frederick H. Clum and the said John O. Carter, then and there offering said stock for sale in quantities less than the entire issue thereof, and not having made application to the said Michigan securities commission for a certificate of approval of the said stocks and such application not having been made by any other dealer or dealers whatsoever, or by any other persons, and said Michigan securities commission not having approved the sale of such securities, the stock of said National Business Men’s Protective Association of Detroit, and not having issued a certificate of such approval, in accordance with the provisions of Act No. 46 of the Public Acts of the State of Michigan, fon the year 1915, contrary to the form of the statute in such case made and provided.” * * *

At the opening of the trial the prosecution was permitted, counsel for defendant objecting, to amend the information to read: “on the 31st day of May and divers other days and dates.”

The certificates for preferred stock issued to said persons, names and dates omitted, were in this form:

“Organized Under the Common Law.
“Number........... '...........Shares
“National Business Men’s Protective • Association.
“Preferred shares, $25,000.00 Common shares,
7,500 without par value.
“Capital Shares.
“This certifies, that.......................is the holder of........................shares of the par value of ten dollars each in the preferred capital stock of the National Business Men’s Protective Association, fully paid and non-assessable, subject to declaration of trust in favor of said association, dated May 7th, 1919, and recorded with register of deeds, in Wayne county, Michigan, No. 471840, and transferable only on the books of the association by holder hereof in person or by attorney upon surrender of this certificate properly indorsed.
“The holder of this preferred share certificate shall be entitled to receive cumulative, semi-annually paid dividends at the rate of seven per cent, per annum and no more and in event of liquidation of the association shall be entitled to be paid in full both the par amount of their shares and the unpaid dividends accrued thereon before any amount shall be paid to the holder of the common shares.
“Witness the seal of the association and the signatures of its duly authorized officers this............ day of......................A. D. 1919.
[Signed] “J. O. Carter, President.
[Signed] “F. H. Clum, Secretary.
“Shares $10 each.”

The certificates for common stock issued to said persons, names and dates omitted, were in this form:

“Organized Under the Common Law.
“Number........... ...........Shares
“National Business Men’s Protective Association.
“Preferred shares, $25,000.00 Common shares,
7,500 without par value.
“Capital shares 10,000
“This certifies that................ is the holder of....................shares of the capital stock of National Business Men’s Protective Association, subject to declaration of trust in favor of said association, dated May 7th, A. D. 1919, and recorded with register of deeds, Wayne county, Michigan, No. 471840, and transferable only on the books of the association by holder hereof in person or by attorney upon surrender of this certificate properly indorsed.
“In witness whereof, the said association has caused this certificate to be signed by its duly authorized officers and to be sealed with the seal of the association this..............day of.................. A. D. 1919.
[Signed] “J. O. Carter, President.
[Signed] “F. H. Clum, Secretary.”

The purpose of the association was said to be the collection for a'consideration of “slow pay” accounts of business men, members of the association, who were to pay to the association a membership fee.

Several reasons for setting aside the conviction are urged.

1. That Act No. 369, Pub. Acts 1919, relating to municipal courts, is invalid. This question as here raised was disposed of in the case of Gildemeister v. Lindsay, 212 Mich. 299.

2. That the court erred in permitting the amendment of the information. Time is not of the essence of the offense. The information charged an offense under the statute. The several transactions might all have occurred on May 31st. The amendment under which the prosecution showed the transactions of May 31st, June 2d, and June 10th, with Richard C. O’Donnell and Annie M. Clark was properly allowed. See sections 15746-15749, 3 Comp. Laws, 1915; People v. Hoffmann, 142 Mich. 542; People v. Nichols, 159 Mich. 355; People v. Hamilton, 76 Mich. 212; Cole v. People, 37 Mich. 544. And there is no claim that the amendment necessitated a continuance to enable the defendant to go to trial safely. See People v. Perriman, 72 Mich. 184.

3. That the association was not incorporated under the laws of this or any other State but was organized under the common law having a declaration of trust in. favor of the association recorded in the office of the register of deeds of the county, and the so-called stock was not therefore stock within the meaning of the act.

The sections of the act here important are:

“Section 2. Every person, corporation, co-partnership, company, or association (except those exempt, under the provisions of this act) organized, or which shall hereafter be organized in this State, whether incorporated or unincorporated, which shall either himself, themselves or itself, or by or through others, sell or negotiate- for the sale of any stocks, bonds or other-securities. issued by him, them or it within the State of Michigan, shall be known for the purposes of this, act as a domestic investment company. Every such person, corporation, co-partnership, or association resident of or organized in any other State, Territory or_ Government, shall be known for the purposes of this act as a foreign investment company.”
“Section 10. Any person, firm, co-partnership, corporation or association whether domestic or foreign, not the issuer, who shall in this State sell or offer for sale any of the stocks, bonds, or other securities issued by any foreign or domestic investment company, except the securities specifically exempted in this act, or, who shall by advertisement or otherwise profess to engage in the business of selling or offering for sale such securities, shall be deemed to be a ‘dealer’ in such securities within the meaning of this act, and no dealer within the meaning of this act shall sell or offer for sale any such securities or profess the business of selling or offering for sale such securities unless and until he shall have filed, a list of the same in the office of the Michigan securities commission as in this act provided. The term ‘dealers’ shall not include an owner not issuer, of such securities so owned by him when such sale is not made in the course of continued and successive transactions of a similar nature, nor one who in a trust capacity created by law lawfully sells any securities embraced within such trust.”

The association was an investment company within the meaning of section 2. The defendant was not an issuer of stock, the association was the issuer. The shares into which the capital of this association was divided and for which certificates were issued as stated were stock within the meaning of the act, the selling and offering for sale of which were forbidden-except as provided by the act. There was evidence connecting defendant as stated with sales “made in the course of continued and successive transactions of a similar nature.” Whether he was a dealer within the meaning of the section quoted was treated by the court as a question of fact and submitted to the jury. Of this defendant may not complain. See Edward v. Joor, 205 Mich, at page 622.

There is no exception in favor of defendant in the concluding clause of section 10. He was not acting in a trust capacity “created by law.”

Other questions discussed briefly by counsel have been considered. We find no reversible error.

The conviction and judgment are affirmed.

Steere, C. J., and Moore, Fellows, Stone, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


source: Caselaw Access Project

license: Public Domain

text:
    DENNISON v. CARPENTER.
    Appeal and Error — Exceptions—Assignments of Error.
    In an action of ejectment, tried before the court without a jury, upon stipulated facts, where no exceptions were taken and no assignments of error made, there is nothing before the Supreme Court to review. Circuit Court Rules Nos. 45 and 67.
    Case-made from Kent; Brown (William B.), J.
    Submitted January 6, 1921.
    (Docket No. 61.)
    Decided March 30, 1921.
    Ejectment by William H. Dennison against Norman Carpenter and another. Judgment for defendants. Plaintiff appeals.
    Affirmed.

      P. H. Walsh, for appellant,

      Smedley & Linsey, for appellees.
   Clark, J.

In this cause, tried without a jury, -.upon stipulated facts, there are no exceptions and no assignments or statements of error. There is nothing before us to review. See Circuit Court Rule No. 67; Circuit Court Rule No. 45, and cases cited in the notes.

In a cause tried without a jury upon stipulated facts, Kooman v. DeJonge, 186 Mich. at page 294, it is said:

“It is contended by the appellee that in the absence of any exceptions there is nothing for this court to review. We held in Weist v. Morlock, 116 Mich. 606 (see Stafford v. Crawford, 118 Mich. 285), that when no exceptions are taken to findings of fact and law by the court, the only question which can be raised on appeal is whether the findings support the judgment, and that question is open only when made the basis of an assignment of error. This rule, and construction of Circuit Court Rule No. 26, has been many times approved. It would seem, when parties submit a cause upon a stipulation of facts, instead of asking the court to' find the facts, that whether the facts support the judgment is a question open to the appellant if made the basis of an assignment of error.”

See, also, Peabody v. McAvoy, 23 Mich. 526; Tuxbury v. French, 39 Mich. 190.

The judgment is affirmed.

Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred.


text:
    KAISER v. KAISER.
    1. Equity — Laches—Lapse of Time.
    Mere lapse of time alone is insufficient to defeat a claim in equity.
    2. Divoboe — Contempt—Laches—Alimony.
    Delay of the wife for more than 10 years to institute contempt proceedings against her divorced husband for his refusal to pay her alimony would not constitute a defense, in such proceedings.
    3. Limitation of Actions — Alimony—Divorce—Contempt.
    The right to recover alimony is not barred by the statute of-limitations (3 Comp. Laws 1915, § 12323) limiting the. right to recover upon a decree or judgment to 10 years,, since the right to recover the installments for the 10 years immediately preceding would support contempt proceedings, to enforce payment 'of same, although instituted more than,. 10 years after entry of decree.
    Appeal from Wayne; Codd (George P.), J.
    Submitted January 5, 1921.
    (Docket No. 41.)
    Decided March 30, 1921.
    Bill by Helen S. Kaiser against Titus J. Kaiser for a divorce. Prom an order adjudging defendant guilty of contempt for failure to comply with the. decree respecting alimony, he appeals.
    Affirmed.

      Harry C. Milligan and Carey J. Cole, for defendant.

      Edward Pokorny, amicus curiæ.

   Clark, J.

Prom an order adjudging defendant guilty of contempt of court, entered July 9, 1919, he has appealed. The order in part:

“And it further appearing to the court that the decree of divorce in the above-entitled cause was signed and filed on the 15th day of March, A. D. 1909, providing for the payment of two dollars ($2.00) per week as permanent alimony until the further order of this court. And it further appearing to the court that the said defendant has wholly failed and neglected to comply with the decree of this court and has failed to pay any alimony since the 15th day of March, A. D. 1909.
“It is therefore ordered and adjudged that said defendant, Titus J. Kaiser, be and he is hereby adjudged guilty of contempt of court.”

Defendant here contends that plaintiff’s claim is stale because of laches and the statute of limitations.

Laches. This contention is based entirely upon lapse of time which alone as a rule will not suffice to defeat a claim in equity. See Ripley v. Seligman, 88 Mich. 177; 21 C. J. p. 211; 2 Words and Phrases (2d Series), p. 1327.

In Walker v. Schultz, 175 Mich. at page 293, Chief Justice Steere, speaking for the court, said:

“But mere lapse of time does not necessarily constitute laches. As a rule it involves other considerations. It means that negligence or omission to assert a right which, considering the lapse of time in connection with other facts and circumstances prejudicial to the interests of the adverse party, render it unjust and inequitable to recognize such right when finally asserted. * * * Where the situation of neither party has changed materially, and the delay of one has not put the other in a worse condition, the defense of laches cannot as a rule be recognized. Parker v. Hotel Co., 96 Tenn. 252 (34 S. W. 209, 31 L. R. A. 706).”

That plaintiff in this regard was remiss in asserting her claim is not shown.

The Statute of Limitations. Contending that, within the meaning of section 12323, 3 Comp. Laws 1915, the contempt proceeding was an action upon a decree or judgment which may be brought within 10 years from the date of entry, defendant claims, that the contempt proceeding, having been brought more than 10 years after the entry of the decree, awarding alimony, is barred by said statute, the-general statute -of limitations. To dispose of this, claim we need only to .say that the right to recover-the installments for the period of 10 years, at least,, immediately preceding the contempt proceeding was not barred by the statute and to which installments-as they came due there attached the duty of the-defendant to. obey the order and decree of the court. See Dewey v, Dewey, 151 Mich. 586; Field v. Loveridge, 114 Mich. 220; McCullough v. McCullough, 203 Mich. 288. This is sufficient -support for the order appealed from which is affirmed, with costs to-the plaintiff.

Steers, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred.


text:
    SIMON v. ZAREVICH.
    Appeal and Error — Exceptions-—Findings op Fact and Law— Review.
    Where, in a cause tried before the court without a jury, there were no findings of fact and law, and no exception taken to the opinion of the court, there is nothing for the appellate court to review, under Circuit Court Rule No. 45, and 3 Comp. Laws 1915, §§ 12586, 12587, nor may the Supreme Court examine the testimony to determine whether it supports the judgment.
    Error to Wayne; Webster (Clyde I.), J.
    Submitted January 4, 1921.
    (Docket No. 26.)
    Decided March 30, 1921.
    Assumpsit in justice’s court by James J. Simon .against Ljubica Zarevich for the amount of a judgment. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Ira J. Pettiford, for appellant.

      C. H. & G. M. Lehman, for appellee.
   Clark, J.

In this cause, tried without a jury, there are no findings of fact and law. In a colloquy between court and counsel at the conclusion of the trial the court stated his views upon one question in the case but no exception was taken to the opinion announced. There is nothing before us to review. Circuit Court Rule No. 45; sections 12586, 12587, 3 Comp. Laws 1915; Wilson v. Hugus, 163 Mich. 577; Sparling v. Smeltzer, 140 Mich. 461; Kooman v. DeJonge, 186 Mich. 292; Messer v. Dornbus, 210 Mich. 46. And in such cases we cannot examine the testimony to see whether it supports the judgment. See McDonell v. Union Trust Co., 139 Mich. 386, and cases there cited.

The judgment is affirmed.

Steers, C. J., and Moore, Fellows, Stone, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


text:
    HUBBELL v. OHLER.
    1. Equity — Land Contracts — Vendor and Purchaser — Forfeiture — Relief.
    Equity will sometimes relieve the vendee in a land contract against forfeiture.

      2. Same — Construction of Contract — Mortgages.
    To set aside the provision of a land contract as to forfeiture, equity must say, by an arbitrary rule of construction, that the parties did not intend the full effect of their language in its literal meaning, and must treat the condition as for security merely.
    .3. Specific Performance — Land Contracts — Forfeiture—Relief —Equity.
    On appeal in a suit by the vendee for the specific performance of a land contract and for relief from forfeiture, the decree of the court 'below for defendants is modified to relieve plaintiff from the forfeiture, but requiring him to pay within 30 days the entire balance of the purchase price, interest, taxes, expenses of forfeiture, and compensate defendants for improvements made since forfeiture.
    On equitable relief against forfeiture of estate, see note in 69 L. R. A. 833.
    Appeal from Kent; McDonald (John S.), J.
    Submitted January 18, 1921.
    (Docket No. 66.)
    Decided March 30, 1921.
    Bill by Jeremiah C. JEIubbell against Louis P. Ohler and others for the specific performance of a land contract, and to. relieve from an attempted forfeiture. From a decree for defendants, plaintiff .appeals.
    Modified.

      J ohn M. Dunham, for plaintiff.

      O. H. Gleason and Ellis & Ellis, for defendant's.
   Clark, J.

The land contract, the subject-matter of this suit, the vendee being in default, has been forfeited pursuant to its terms. The court is asked by the vendee, plaintiff, to enforce the contract specifically, and to relieve him of the forfeiture. Eelief was denied by the trial court. Plaintiff has appealed. Equity will sometimes relieve against forfeiture. But the right, to declare a forfeiture is provided by the contract. It is an important and valuable right. To set aside the provision of the contract as to forfeiture, equity must say, by an arbitrary rule of construction, that the parties did not intend the full effect of their language, must make the language read contrary to its literal meaning, must treat the condition as for security merely, and then enforce the contract as thus determined. See Maginnis v. Knickerbocker Ice Co., 112 Wis. 385 (88 N. W. 300, 69 L. R. A. 833); Lozon v. McKay, 203 Mich. 364.

Are the facts in this case such as to call for this interference by a court of equity? The contract' was-first between defendant Ohler and one Boomsma. Boomsma, vendee, on August 1, 1918, assigned his: interest to plaintiff when there remained of the principal unpaid $3,000, payable $100 or more each year on August 1st, commencing August 1, 1919, and when there was due of interest and taxes $220. Including such interest and taxes, plaintiff to have such assignment paid approximately $1,000. The land was then incumbered to the amount of $2,100. The contract required interest to be paid semiannually. It required the vendee to pay the taxes. It contained a covenant against waste. It had the usual provisions as to forfeiture on default and as to re-entry.

The interest due February 1, 1919, was not paid. Plaintiff claims he was mistaken as to the time of payment'. The defendant Ohler having failed .in his efforts to secure payment of such interest and the taxes of 1918, on April 12, 1919, caused a notice of forfeiture to Tbe served on the plaintiff. The premises were vacant, and defendant Ohler took possession and on April 23, 1919, sold and conveyed the same t'o defendant Byers who, knowing the facts, at once took possession and made improvements.

On April 27, 1919, plaintiff tendered defendant Ohler the amount of interest due and $1.10' as costs of the forfeiture. The taxes were not paid. These were paid by defendant Ohler June 30, 1919. The bill was filed May 7, 1919. Decree was entered January 29, 1920. The trial judge found that the plaintiff had “suffered various and sundry people to commit waste and damage to said lands and the appurtenances, particularly the house and barn.” We think considerable damage to the buildings, land and fences was shown. If plaintiff be restored tO' his rights under the contract we find no strong expectation that the covenant as to waste will be hereafter performed. See Maginnis v. Knickerbocker Ice Co., 69 L. R. A. 835. The plaintiff seems to have held the property for trading purposes. As we have seen, if the contract had been in force on August 1, 1919, plaintiff might have paid “$100 or more” upon the principal, so the whole amount might have been paid. Equitable conditions under which plaintiff may be relieved of the forfeiture may be imposed. See Stickney v. Parmenter, 35 Mich. 237. Probably, had the only default been the failure to pay interest and taxes, plaintiff would have had decree, but the default as to waste was serious, resulting in impairment of the property, and it is with some reluctance that we have concluded to modify the decree and then only in a way that will protect the interests of the defendants.

The decree may be modified to relieve plaintiff from the forfeiture upon the condition that within 30 days from the entry of decree in this court he pay to the clerk of Kent county: (1) The entire unpaid purchase price of the land; (2) All arrearages of interest'; (8) Any sum or sums paid by defendant, or defendants for taxes upon the land and upon the contract; (4) 'The sum of $50 as an allowance to defendant Ohler for attorneys’ fees and expenses upon the forfeiture; (5) Costs of both courts; and (6) Compensation to defendant Byers for improvements made upon the premises, the amount of which, if the same cannot be determined by agreement of counsel, may be determined upon hearing by the lower court, to which the cause will be remanded for any further proceedings not inconsistent herewith, and if within the time aforesaid the said several sums (1 to 5 inclusive) shall have been paid and the amount of the compensation to defendant Byers shall not have been determined, then in lieu of payment and pending such determination plaintiff may .give his bond with sufficient sureties to be approved by the said clerk, in the penal sum of $500, to defendant Byers conditioned for the prompt payment of isuch compensation to defendant Byers when so determined.

And upon performance of all the aforesaid the deed to Byers will be set aside and defendant Ohler will execute and deliver a conveyance according to the contract and plaintiff will be restored to possession. Four of said amounts and items, being 1, 2, 3 and 5, if paid to the said clerk, shall be distributed under the order of the court to the defendants as their interests may appear. And in default of the performance of these conditions (1 to 6 inclusive) within the time limited the decree of the lower court will be affirmed, with costs of both court's.

Steere, C. J., and Moore, Fellows, Stone, Bird, and Sharpe, JJ., concurred. The late Justice Brooke did not sit.


text:
    STEPHENSON v. COMMON COUNCIL OF THE CITY OF DETROIT.
    1. Municipal Corporations — Duties op Officers — Official, Discretion.
    The duties of the officers of a city are qwasi-judicial, or in a. sense legislative, requiring the use of judgment and discretion.
    2. Mandamus — Municipal Corporations — Sewers—Official Discretion.
    Mandamus will not interfere to dictate to city officials the order in which sewers in the city of Detroit should be built, where it appears that by reason of the rapid growth, of the city the need of sewers is very great, and the attempt is being made to construct same in the order in. which the need is most urgent.
    Certiorari to Wayne; Browne (Clarence M.), J.,. presiding.
    Submitted January 4, 1921.
    (Calendar No. 29,462. )
    Decided March 30, 1921.
    Mandamus by Burnette F. Stephenson to compel, the common council of the city of Detroit and others, to proceed with the construction of a sewer. From an order granting the writ, defendants bring certiorari.
    Reversed.

      Walter Barlow (Clarence E. Wilcox, of counsel),, for appellants.

      Bernard F. Weadock, for appellee.
   Clark, J.

The plaintiff owns 322 lots in a subdivision annexed to the city of Detroit in 19161 The-lots are adjacent to a street known as the Seven-Mile road. In 1918 the city adopted a plan for the-construction of public sewers. In conformity to a part of such plan the city on June 3, 1919, entered into a contract with the defendant the J. Connelly Construction Company to construct in said street approximately 4,700 feet of sewer, which, if constructed, would furnish plaintiff needed facilities for sew-erage. The plaintiff made preparation in his property for using such sewer when it should be constructed. Following the contract construction was begun, and after 109 feet of sewer had been laid the work ceased entirely. The contract provided in part:

“It is further agreed that the work embraced in this contract shall be prosecuted in such order and ¡at such places and parts of the work as the said department may direct. * * *
“The contractor shall commence work within ten (10) days after receipt of written notice to start work, by the commissioner, or by mutual consent on .a day specifically stated in said written notice. * * *
• “The work shall be prosecuted regularly and unin-' terruptedly, unless the commissioner shall'otherwise .specifically direct, with such force and at such points .as to insure its full completion within the time herein stated. * * *
“Time of completion is the essence of this contract, and the value of such time to the city, including cost of inspection, is fixed at the amount per working day, stated in the proposal.”

The date set for completion of the work was July 15, 1920. The plaintiff requested the several city officials, named as defendants, to require of the. contractor prompt completion of the work according to the contract.

On May 18, 1920, plaintiff filed his petition for writ of mandamus to be directed to the defendants, the common council, the mayor, the commissioner of public works, and the engineer of the said city, commanding them to take affirmative action under the' city charter and the contract to compel the contractor to resume the work of construction and to prosecute such work to completion and commanding the-contractor to resume work and to complete the contract.

On the part of the defendants it was shown that, since 1915 there had been annexed to the city 32.65-square miles of territory, that allowing 6 lots to an acre this would be equivalent to 125,376 building: lots, that plaintiff’s land represented one-fourth of one per cent, of the territory annexed, that the estimated cost of the city at large of constructing sewers in the territory so annexed according to the plan adopted is $18,000,000, that at the time of answer in. this case the total of contracts for the construction of sewers in such territory was $7,283,469, that the-cost of sewers completed in 1919 was $589,832, that, contracts partially completed totaled $756,114, that, work on the different sewers was progressing as rapidly as possible and that to care for pressing needs of inhabitants in those districts where residences had been built 15 miles of ditches had been cleaned out or constructed. In short the defendants contended that in this rapidly growing city, where demands for sewerage were pressing, they were having sewers constructed as rapidly as possible and in the order of the greatest 'need. The contention of defendants is thus stated by counsel:

“The plaintiff has no specific right or interest involved in this plan adopted by the city for the construction of public sewers in this territory different from the other property owners and residents of the annexed district. Whatever rights or interests he has in the public improvements to be made in the district are in common .with all the other property owners and residents of the district and in the proportion only that his property holdings therein hear to the rights and interests of all the other people interested in the property and public improvements to be made in the annexed territory. The public sewers in the district are being constructed at the expense of the people at large of the whole city; and it would naturally seem that the common council, the representatives of the people, who furnished the means for the construction of these sewers should have the right to determine when, where and how the sewers shall be constructed without being interfered with by the courts in the plan adopted by the council for the construction of public improvements, in this district.
“The defendants claim that the courts have no jurisdiction to intermeddle with this plan adopted by the city for the construction of public sewers in and for the drainage of this territory annexed to the city.”

We think counsel are right in this contention and that the judgment of the court allowing the writ, here reviewed on certiorari, must be reversed. The duties of the officers of the city are gwcm-judicial or in a sense legislative. Judgment and discretion are to be used. These duties will not be controlled by mandamus. After the adoption of the general sewer plan and the making of the contract, the city in its discretion might modify the contract, and agree with the contractor to work elsewhere where the needs, were more urgent.

“Giving the record before us the most favorable-construction it will bear upon the facts admitted by the demurrer to the return to the writ of mandamus, it shows simply an attempt by the petitioner to compel the common council to proceed with the performance of its gticm-judicial or legislative duties respecting the construction of a sewer. This is plain from the alternative writ and return thereto. The question, therefore, is whether mandamus will he awarded for such purpose. The duty of providing for and constructing sewers by a municipality is a qtt asi-judicial or legislative power involving judgment and discretion. * * * Such quasi-judicial or legislative duty will not be controlled by mandamus. * * * The expediency of entering upon public improvements is left almost entirely to the judgment of the local authorities. * * * ‘The books abound with cases which assert and enforce the rule that mandamus will not lie to control the exercise of discretion or official judgment.’ * * * We think it clear that no case was made for the issuance of a writ of mandamus, and therefore the demurrer to the return should have been overruled.” State, ex rel. Vanderwall, v. Mayor, etc., of Phillips, 134 Wis. 437, 442, 443 (114 N. W. 802, 804).
“Since municipal authorities are vested with a quasi-judicial discretion as to street improvement, courts have no power to order them to make all alike, or to keep all in the same state of repair. Likewise, a court cannot require a municipal corporation to construct a sewer, irrespective of the exercise of discretion vested by law in the municipal authorities to determine the practicability of the sewer ordered, the availability of taxation for the purpose, and like matters.” 4 McQuillin, Municipal Corporations, § 1836, page 3947.

See, also, 4 McQuillin, Municipal Corporations, § 1435, page 3037; City of Vicksburg v. Waterworks Co., 202 U. S. 453, 471, 472 (26 Sup. Ct. 660); 3 Dillon, Municipal Corporations (5th Ed.), § 1151, pages 1819, 1820.

Plaintiffs counsel cites Brophy v. Schindler, 126 Mich. 341, 347; Berube v. Wheeler, 128 Mich. 32; Attorney General v. Alcona Supervisors, 167 Mich. 666, 672; Oxby v. Board of Sup’rs, 124 Mich. 463. These related to certain statutory duties and are not in point.

Tbe plaintiff in this case also sought to compel construction of a sewer not covered by the contract, but which plaintiff must have for the use and enjoyment of his property. What has been said disposes of this question.

Judgment reversed, with costs to defendants.

Steers, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred.


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    NEWTON v. FREEMAN.
    1, Witnesses — Estates of Decedents — Testimony as to Matters Equally Within Knowledge of Deceased — “Heirs” — “Assigns” — Opposite Party.
    In a suit by a widow as tbe administratrix of tbe estate of her deceased husband for an accounting and to restrain the foreclosure of a mortgage given by deceased and plaintiff as husband and wife, the wife, as personal representative and an heir of her husband, and defendant, mortgagee, as an assign, were both protected by the statute (3 Comp. Laws 1915, § 12553) prohibiting an “opposite” party testifying as to matters equally within the knowledge of the deceased, and both were likewise incompetent to testify to such matters as occurred in the presence of each other and deceased at the time the bargain was made.
    2. Same — Waiver of Privilege — Opening Door — Evidence.
    Where plaintiff testified as to matters equally within the knowledge of her deceased husband and defendant, she waived the privilege of the statute, the door was opened, and defendant had a right to also testify as to such matters.

      3. Mortgages — Foreclosure — Injunction — Evidence — SueeiciEncv.
    In a suit for an accounting and to restrain the foreclosure of a mortgage, the claim of plaintiff that her deceased husband in his lifetime sold hay and timber which it was agreed should be applied in reducing the amount of the notes secured by the mortgage, but that such was not done and no credit was in fact given therefor, held, not sustained by the record, which sustains defendant’s contention that credit was given to another account according to agreement.
    Appeal from Mackinac; Shepherd (Frank), J.
    Submitted January 6, 1921.
    (Docket No. 79.)
    Decided March 30, 1921.
    Bill by Nettie Newton, administratrix of the estate of Wilson Newton, deceased, against Frank H. Freeman, for an accounting, and to enjoin the foreclosure of .a mortgage. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      James C. Wood, for plaintiff.

      Prentiss M. Brown, for defendant.
   Clark, J.

The bill was filed for an accounting and to restrain the foreclosure by the defendant' of a mortgage of real estate given to him by plaintiff’s intestate, Wilson Newton, and his wife, Nettie Newton, now the plaintiff, to secure the payment of notes aggregating $800, made by said mortgagors and one Obediah Newton, brother of Wilson. It is plaintiff’s claim, that in his lifetime Wilson Newton sold defendant hay and timber at an agreed price to be credited upon the said notes, and that such credit had not been given. It is defendant’s claim that the property was purchased by the Freeman Lumber Company and the credit was to’ be given iipon other indebtedness of Wilson Newton and Obediah Newton and that such credit had been given. When the bargain is said to have been made there were present plaintiff, her intestate and defendant. The brothers in fishing, farming and lumbering at the time of such sale were and for years prior thereto had been trading as Newton Brothers. They were also stockholders, as was defendant, in the Lyman Ferguson Company, which conducted a store at Could City in charge principally of Obediah Newton. Wilson Newton and wife lived upon a farm several miles from Gould City. Obediah lived in Gould City but at times worked on the farm. There was' evidence that the farm belonged to the brothers, though it was said that Wilson Newton had claimed to be the sole owner.

The groceries and other supplies for the farm were purchased largely at the store of the Lyman Ferguson Company and charged to the account of Newton Brothers. Products of the farm' sold to-the company were credited to such account. On the: company’s books there was no account in the name of Wilson Newton. The common method of paying bills by Newton Brothers in -their various! operations including farming seems to have been by issuing orders which were paid by the Lyman Ferguson Company and charged to their account.

When the sale in question was made Nekton Brothers owed the Lyman Ferguson Company a large amount. The hay was a product of • the said farm. The brothers, it seems, owned other lands. The record is not clear as to where the timber in question was produced, nor as to the value of it but there was positive testimony that it was the property of Newton Brothers.

Defendant was manager of the Freeman Lumber Company in charge of its operations at Engadine. In a letter to Wilson Newton of July 1, .1916, the Freeman Lumber Company, stating the price, requested delivery of hay. Wilson Newton in person or by others, and' assisted by Obediah Newton, shipped the hay to the Badger Hay Company, the bill of lading being signed “Freeman Lumber Company, shipper, per Wilson Newton.” For the property received from Wilson Newton or from Newton Brothers the Freeman Lumber Company credited the account of the Lyman Ferguson Company and the Lyman Ferguson Company credited the account of Newton Brothers, which, as defendant claims, was according to the agreement.

Wilson Newton died in April, 1917. In October, 1917, plaintiff and Obediah Newton paid the interest upon the mortgage debt of $800 in full to April 10, 1917. This payment was by check of Obediah which .Mrs. Newton indorse*! although she says she protested and was frightened as a result of the threatening manner and words of the defendant'. Later defendant sent to plaintiff a statement of interest due upon the mortgage which she paid by check in full to April 10, 1918. Defendant having begun the foreclosure of the mortgage, the bill was filed in August, 1919. Defendant answered. Plaintiff and defendant testified at length as to the bargain with the deceased. 'The court dismissed the bill and plaintiff has appealed.

Because of section 12553, 3 Comp. Laws 1915, the testimony of both plaintiff and defendant was incompetent as to matters equally within the knowledge of the deceased. Among the persons protected by the ¡statute as to opposite parties are heirs, personal representatives of the deceased and. assigns. The plaintiff was the personal representative of the deceased and she was an heir and the defendant mortgagee was an assign within the meaning of the statute. See Taylor v. Carter, 211 Mich. 365; Peir son v. McNeal, 137 Mich. 158; Chambers v. Hill, 34 Mich. 523; Shepard v. Shepard, 164 Mich. 183; Carr v. Carr, 138 Mich. 396; Sheldon v. Carr, 139 Mich. 654; Loomis v. Loomis, 178 Mich. 221; Beadle v. Anderson, 158 Mich. 483; Knight v. Hartman, 93 Mich. 69; Wallace v. Wallace, 63 Mich. 326; Youngs v. Cunningham, 57 Mich. 153; Howard v. Patrick, 43 Mich. 121; Penny v. Croul, 87 Mich. 15 (13 L. R. A. 83) ; Bailey v. Holden, 113 Mich. 402. See, also, Perkins’ Evidence by Survivor, pp. 120, 121.

But the plaintiff on her direct examination testified at length to the conversation between her deceased husband and defendant respecting the bargain and sale, matters equally within the knowledge of the deceased. Whether counsel for defendant objected to the testimony is in dispute. Counsel insists that he did but the record fails to show it. But in any event by such testimony the door was opened to testimony by defendant as to the same matters, and defendant had a right to testify as to such matters, which he did subject to repeated objection of plaintiff’s counsel. The protection of the statute was waived.

“It is believed that there is a fourth ground of waiver, although there are no Michigan cases where the question has been directly presented. Thus, in suits or proceedings wherein the protected parties, or some of them, are in antagonism; as, between assign and assign, heir and assign, the estate and assign, or any other combination likely t'o arise, if one of the protected parties testifies on direct examination to prohibited matters, or causes an interested witness -so to testify, the door is thereby opened to the opposite party to testify, or produce an interested witness to testify, to the same matters. This result follows whether the testimony, when offered, is objected to or not. The opposite party by so introducing the prohibited testimony has waived the statute. The other protected party may either: 1. Object to the testimony and rely upon his objection; 2. Let the testimony be received without objection, in which event he also waives the statute; or 3. Notwithstanding his objection, offer equally incompetent testimony as to the same matter, in which event he waives not only his objection but also the statute.” Perkins’ Evidence by Survivor, pp. 214, 215.

See, also, Butz v. Schwartz, 135 Ill. 180 (25 N. E. 1007); Parrish v. McNeal, 36 Neb. 727 (55 N. W. 222); Boardman v. Brown, 114 Iowa, 678 (87 N. W. 674); Corning v. Walker, 100 N. Y. 547 (3 N. E. 290); Booth v. Lenox, 45 Fla. 191 (34 South. 566); Shipp v. Davis, 78 Ga. 201 (2 S. E. 549); Kelton v. Hill, 59 Me. 259.

The trial court, upon motion to strike plaintiff’s testimony made after the trial and upon the submission of the cause upon briefs, in his opinion filed in the cause, held plaintiff’s testimony as to such matters incompetent and held defendant’s testimony .as to such matters likewise, incompetent, and without consideration of such testimony reached the conclusion stated. A consideration of such testimony does not change the result. The facts which we have reviewed, particularly the method of accounting, the business relations of the parties, the subsequent payments of interest upon the mortgage, lead to the conclusion reached by the trial court.

The decree is affirmed, with costs tO' defendant.

Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred.


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    SULLIVAN v. DETROIT UNITED RAILWAY.
    1. Carriers — Street Railways — Personal Injuries — Trial—Instructions Supported by Evidence.
    In an action against a street railway company for personal injuries claimed to have been caused by the negligence of defendant’s motorman in starting a car while plaintiff’s decedent was in the act of boarding it, an instruction by the trial judge that, if the car had come to a stop and if decedent’s hold was broken and he was thrown down and injured without any negligence on his part, then plaintiff would be entitled to recover, held, proper under the evidence.
    2. Same — Negligence—Contributory Negligence — Question for Jury.
    In such action, where the testimony of the witnesses as to the negligence of the defendant and the contributory negligence of decedent was conflicting, the trial judge properly refused to direct a verdict for defendant.
    3. Appeal and Error — Great Weight of Evidence — New Trial— Motion — Exceptions.
    Where no exception was taken to the denial of a motion for a new trial on the ground that the verdict for plaintiff was against the great weight of the evidence, the question must be deemed to have been waived.

      4. Trial — Argument of Counsel.
    Where the claim of counsel for defendant that one of its witnesses and plaintiff’s decedent were friends was extravagant, the improper reply of plaintiff’s counsel, provoked thereby, that “forbid, gentlemen of the jury, that your widow and fatherless children may be put to the mercy of a friend like” witness, held, under the circumstances, not so prejudicial as to require reversal of a judgment for plaintiff.
    Error to Wayne; Hosmer (George S.), J.
    Submitted January 4, 1921.
    (Docket Nos. 19, 20.)
    Decided March 30, 1921.

      Case by John O. Sullivan, revived as Elizabeth F. Sullivan, administratrix oí the estate of John O. Sullivan, deceased, against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody and A. B. Hall, for appellant.

      Munro & Powell, for appellee.
   Clark, J.

John O. Sullivan fell in attempting to board a car of defendant. Under a wheel of the car his foot was crushed, necessitating an amputation. He brought suit. Upwards of a year later he died. The injuries were not the cause of death. The suit was revived in the name of Mrs. Sullivan, the administratrix. The plaintiff claims that the injuries were caused by the starting of the car while Mr. Sullivan was in the act of boarding. The defendant claims that the injuries were caused by an attempt to board a moving car. Plaintiff had verdict and judgment for |2,500.

Defendant has assigned error upon the following excerpt from the charge:

“If, gentlemen of the jury, the car had come to a stop and if he attempted to board under those circumstances it became the duty of the motorman to take care of his end of the vestibule, and if he started while he was in the act of getting on and his hold was broken and he was thrown down and he was guilty of no act of negligence himself, then unquestionably the plaintiff would be entitled to such a verdict as would compensate him for the injuries.”

Defendant contends that there was no proof that while Mr. Sullivan was in the act of getting on the car his hold was broken by the starting of the car, that there was no proof that the starting of the car was the cause of the injuries. We think the charge was proper under the testimony of witnesses for the plaintiff. Mr. Sparks testified on direct examination :

“I was sitting on the right-hand side of the smoker, either in the second or third seat from the front, next to the window. I remember the car stopping at that corner. * * *
“I was sitting looking out of the window, and the car stopped at the corner, and after it stopped I saw a man walk by the window, and I paid particular attention to him, because he was a man of very unusual build, a very big man, and a fine-looking man. He passed the window and I saw him reach up, supposedly to catch hold of the handles of the car. I couldn’t see the handles from where I sat. And just then the car started and I see his hand let go, and a second or two after I heard a grinding sound and the car stopped, and then someone pulled this man out from under the car and they took him over to the sidewalk and sat him down, and I got up and looked. I didn’t look very long, because it made me quite sick, the sight. I saw that part of his foot was hanging as they carried him across. I did not see him until he was carried to the walk.”

And on cross-examination:

“Q. And he had hold of both handles?
“A. I don’t know whether he had hold of them or not; I saw him reach up to grab something.
“Q. You don’t know whether he ever did get hold, do you?
“A. Only that he stayed there a length of time long enough that he would have to have hold of something.
“Q. He stayed there?
“A. He couldn’t hang in space.”

Mr. Reichner, who had known Mr. Sullivan for years testified:

“I remember of an accident happening at Pacific and Grand River avenue on that day. I am quite positive I was in the front seat on the right hand side of the smoker. I should judge it was between the hours of 4:30 and 5 o’clock I saw Mr. Sullivan at that intersection. When the car stopped at Pacific I saw this man go to the front of the car to raise himself up — the car was stopped on the corner at the proper place for a car to stop — this man raised himself up and with that the car started and the next I heard was hollering and then when they took and carried Mr. Sullivan to the curb. I did not know who it was as he was carried to the curb. When they turned his face toward me I saw who he was.”

Another witness of the stopping of the car at the street intersection when the accident happened, said: “the car stopped for an instant and started.”

Defendant requested that a verdict be directed in its favor, asserting that plaintiff’s claim as to the cause of the injuries was unsupported by proof. The denial of the motion is said to be error. Defendant had the testimony of several witnesses tending to show that it was free from negligence and that the accident was due to an attempt of Mr. Sullivan to board a moving car. But under all the evidence, including the testimony of plaintiff’s witnesses from which we have quoted, the question of defendant’s negligence and the question of plaintiff’s contributory negligence were properly submitted to the jury.

It is urged that the court erred in the denial of a motion for a new trial on the ground that the verdict was against the great weight of the evidence. No exception was taken to the denial. The question must be deemed, therefore, to have been waived. See Heikkala v. Isaacson, 178 Mich. 176 (50 L. R. A. [N. S.] 857); Hotchkiss v. Weinmann-Matthews Co., 175 Mich. 652; Beno v. Kloka, 211 Mich. 116.

It is said that argument of plaintiff’s counsel was prejudicial. Mr. Burtch, an important witness for defendant, saw the accident. His testimony supported fully 'defendant’s theory in the case. Of Mr. Sullivan he said: “I knew him quite well * * * ever since I was a little boy.” We infer from the portion of the argument printed in the record that counsel for defendant in argument had claimed greater probity for Mr. Burtch’s testimony because he and Mr. Sullivan had been “friends.” Counsel for plaintiff says that the claim of friendship was without the record and replying in his closing argument urged that the men were not friends and said: “forbid, gentlemen of the jury, that your widow and fatherless children may be put to the mercy of a friend like Loren Burtch.”

Exception was then taken by counsel for defendant. No request to charge on the subject was preferred, except that at the close of the charge the following appears:

. “Mr. Rail: I would like to call your honor’s attention to the statement at the time I took an exception to the remarks about appealing to what they would do if their widows, and so forth. I think your honor should take some notice of that.
“The Court: It is a difficult matter sometimes to say exactly what the province of counsel is, of course—
“Mr. Powell: It was only made by way of argument.
“The Court: I think, without attempting to correct that, of course, gentlemen of the jury, I only say to you in that regard, the credence to be given to any witness who has testified in this case belongs wholly to you, and not to me, and it is for you to determine where the truth lies, and which witness’ statement is true and which witness is telling the truth.”

The fact that Mrs. Sullivan was a widow and the mother of three children was in evidence without objection. In argument counsel should be allowed reasonable latitude in drawing inferences from the facts, but we think that the attempt to infer from the testimony of Mr. Burtch that he and Mr. Sullivan were friends was extravagant and provoked the improper reply of plaintiff’s counsel. We decline to say, upon this record, that the argument was so prejudicial as to require reversal of the case.

We find no reversible error. The judgment is affirmed.

Steere, C. J., and Moore, Fellows, Stone, Biro, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


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    BORGMAN v. BULTEMA.
    1. Religious Societies — Church Property to be Retained for Benefit of Church.
    Where property is dedicated to the use of a religious denomination it cannot thereafter be diverted to the use of those who depart from that faith, but must remain for the use and benefit of those who still adhere to the faith, though they be a minority.
    2. Same — Christian Reformed Church — Form of Church Government.
    Under the 86 articles of the Church Order of the Christian iRieformed Church, which is its supreme law or constitution, its form of government is presbyterial rather than congregational, and the supreme governing body is the synod, which has sole and exclusive power to make and establish all laws and regulations for the government of the church, has supreme ecclesiastical power over all who adhere to its confession of faith, and is the only body which can say what the confession of faith of the church is or shall be.
    3. Same — Synod the Supreme Body — Deposing a Minister.
    The synod, being the proper body to hear, try, and determine whether a certain book of defendant minister of the local church at Muskegon is in conflict with the confession of faith of the church, its decision in the matter is final and binding upon the courts.
    4. Same.
    Where defendant minister refused to retract the writing in said book after the same had been determined by the synod to be in conflict with the confession of faith, he subjected himself to be deposed by the classis, under Article 53 of the Church Order.
    5. Same — Church Trial — Deposed Minister and Consistory Not Entitled to Control Church Property.

      Held, that defendant minister and the deacons and elders,, constituting the consistory of the local church at Muskegon, have been properly and legally removed from their respective offices by the duly constituted authorities of the church, and consequently are no longer entitled to hold, manage, and control the property of the church.
    6. Same — Churoh Trial — Review by Courts.
    Where it is admitted that property belongs to a particular church, and the only question is whether the defendant, claiming to be pastor, should be excluded from its use, the court will only consider whether the church has ordered his exclusion, not whether it was right in doing so.
    7. Same — Attempt of Local Church to Change Form of Government Void.
    An attempted amendment of its articles of association by the local church at Muskegon, incorporated under Act No. 148, Pub. Acts 1901, providing for the incorporation of Christian Reformed Churches of America, so as to give the congregation the right to determine whether it had departed from the established standards of doctrine of the church, with the right of the majority to control the local church property, is void as an effort to substitute the congregational for the presbyterial form of government.

      Appeal from Muskegon; White (Charles E.), J., presiding.
    Submitted January 20, 1921.
    (Docket No. 73.)
    Decided March 30, 1921.
    Bill by William Borgman and others against Harry Bultema and others for an injunction.
    Affirmed.

      Harris E. Galpin and Joseph T. Riley, for plaintiffs.

      Stephen H. Clink (Edward C. Farmer, of counsel), for defendants.
   Clark, J.

The opinion of the trial judge is sustained by the record and by the law. It is well written. To dispose of this case we shall quote from it at length:

“Both the plaintiffs and the defendants claim to be members of a religious denomination known as the Christian Reformed Church. This religious denomination has been organized in this country since the year 1857. The First Christian Reformed Church of Muskegon is a branch or local church of this religious denomination, and is incorporated under the provisions of Act No. 118 of the Public Acts of the State of Michigan of 1901.
“The defendant, Harry Bultema, for a number of years last past, has been the regular and duly constituted minister of said First Church of Muskegon. The other defendants, excepting the four who have filed a disclaimer, claim to be the elders and deacons of said First Church, which elders and deacons under the church law constitutes the local governing body of the church, known as the consistory.
“Some of the plaintiffs are members of said First Church, others claim to be the duly constituted and legal consistory of said church, and others join as plaintiffs as the representatives of the classis, which, under the church law, is claimed to be the governing body of the church next over the consistory.

Church Order or the Christian Reformed Church.

Article 1.

For the maintenance of good order in the Church of Christ it is necessary that there should he: offices, assemblies, supervision of doctrine, sacraments and ceremonies, and Christian discipline, of which matters the following articles treat in due order.

Article 2.

Of the Offices.

The offices of four kinds: of the ministers.of the word, of the doctors, of the elders, and of the deacons.

Article 3.

No one, though he be a doctor, elder or deacon, shall be permitted to enter upon the ministry of the word and the sacraments without having been lawfully called thereunto. And when anyone acts contrary thereto, and after being frequently admonished does not desist, the classis shall judge whether he is to be declared a schismatic or is to be punished in some other way.

“Under the church law of this denomination the office bearers of the local church are the elders and deacons elected by the local congregation, and together called the consistory, and the minister. The governing body of the church next over the consistory is known as the classis, which is made up of delegates sent from the local churches in a certain neighborhood or territory. The supreme governing body of the church is known as the synod, which body is made up by delegates sent from the several classes. The classis is supposed to hold a meeting three times a year, while the synod meets every two years.
“It is the claim of the plaintiffs that the defendants have been duly and legally removed from their offices of minister, deacons and elders of said First Church in accordance with the established law and usages of the Christian Reformed Church, and that consequently they have no further right to control the property of said First Church or to exercise the privileges and functions of their respective offices.
“The defendants insist that they have never been legally deposed from their respective offices, and consequently they have the legal right, as the local governing body of said First Church, and as its minister, to control the property of said church, to oonduct public worship therein, and to perform the duties of their respective offices.

Article 4.

The lawful calling of those who have not been previously in office, consists:

First, in the election which, after preceding prayers, shall take place by the consistory and the deacons with due observance of the regulation established by the consistory for this purpose, and of the ecclesiastical ordinance, that only those can for the ¡first time be called to the ministry of the word who have been declared eligible by the churches, according to the rule in this matter; and furthermore with the advice of classis or of the counselor appointed for this purpose by the classis.

“The First Christian Reformed Church of Muskegon are the owners of the church property, where the regular services of those affiliated with said church are held and conducted, and also of the house or manse where the minister of said church lives. The legal description of said real estate is admitted to be correctly set forth in the bill of complaint, and said real estate is worth in the neighborhood of thirty thousand dollars ($30,000).
“This bill is filed to restrain the defendants from acting, or claiming to act, as the minister and consistory of said First Church, and from holding, managing and controlling the said real estate as such minister and consistory, or from performing the duties of their respective offices, on the theory that they have been duly and legally removed from their respective offices, and consequently have no lawful right to further act in that respect.
“As I view the case the result of this controversy turns on the question of whether or not defendants have been properly deposed from their offices in accordance with the laws and usages of said Christian Reformed Church, and whether or not the defendants, by their acts and doings since this controversy arose, have in legal effect removed themselves from this religious denomination and consequently now have no legal right to claim to be acting as the minister and officers of a local church belonging to the denomination.

Secondly, in the examination both of doctrine and life which shall be conducted by the classis, to which the call must be submitted for approval, and which shall take place in the presence of three deputies of synod, from the nearest classis.

Thirdly, in the approbation by the members of the calling church, when, the name of the minister having been announced for two successive Sundays, no lawful objection arises; which approbation, however, is not required in case the election takes place with the co-operation of the congregation by choosing out of a nomination previously made.

“If either of these questions shall be answered in the affirmative the plaintiffs are clearly entitled to the relief prayed for.
“The property belonging to the First Church of Muskegon has been donated by various parties believing in and affiliated with this religious denomination, and has been solemnly dedicated to the use of this religious denomination.
“Under well-established rules of law, acquiesced in by all our courts, and which, as I understand it, no one disputes, where property is dedicated to the use of a religious denomination it cannot thereafter be diverted to the use of those who depart from that faith, but must remain for the use and benefit of those who still adhere to the faith. It is conceded that the property in question in this case has been dedicated to the use of those who adhere to the faith of the Christian Keformed Church, and that it must there remain, and should it appear that any have departed from that faith they cannot claim the right to take the property with them.
“The supreme governing body of the First Be-formed Church is the synod. This supreme body has sole and exclusive power to make and establish all laws and regulations for the government of the church. It has supreme ecclesiastical power over all those who adhere to that confession of faith. It is the only body in the church which can say what the confession of faith is or shall be.

Finally, in the public ordination in the presence of the congregation, which shall take place with appropriate stipulations and interrogations, admonitions and prayers and imposition of hands by the officiating minister (and of the other ministers who are present), agreeably to the form for that purpose.

Article 5.

Ministers already in the ministry of the word, who are called to another congregation, shall likewise be called in the aforesaid manner by the consistory and the deacons, with observance of the regulations made for the purpose by the consistory and of the general ecclesiastical ordinances for the eligibility of those who have served outside of the Christian Reformed Church and for the repeated calling of the same minister during the same vacancy; further, with the advice of the classis or of the counselor, appointed by the classis, and with approval of the classis or of the deputies appointed by the classis, to whom the ministers called shall show good ecclesiastical credentials of doctrine and life, with the approval of the members of the calling congregation, as stated in article 4; whereupon the minister called shall be installed with appropriate stipulations and prayers agree.ably to the form for this purpose.

“It is the contention of the plaintiffs that the form of government of the Christian Reformed Church is whát is known as the presbyterial form of government, as contradistinguished from congregational form of government.
“The defendants, on the other hand, contend that the real form of government of this denomination is a mere federation of churches, that the real governing body is the consistory of each church, and that the classis and synod have no real power or authority over the consistory which can be enforced. As I understand defendants’ theory it is that the classis and synod may act in an advisory capacity to the consistory, but that in case their advice is disregarded they are powerless, to enforce their authority over the local church.
“I cannot agree with defendants’ contention in this regard. I do not see how any one could read the 86 articles of the church order of the Christian Reformed Church, which is the supreme law or constitution of the church, without coming to the conclusion that this religious denomination is much more than a federation of churches. In fact, the 86th article explicitly says that these articles are the .supreme law of the church, and that no congregation or classis is at liberty to alter, augment, or diminish them, and that they shall be observed as such until otherwise ordained by the synod. All the officers of the church are created, fixed and determined by this constitution; their duties are set forth and defined therein, and their terms, office and manner of election are created thereby. There could be no such thing as a local church or a consistory of the ministers or a classis without this constitution. The minister of the local church can only be called and installed and hold his office in the manner provided by this constitution. This is equally true of the consistory. These articles provide that no minister or consistory can be installed without subscribing to the formula of subscription established by the church, and that in case they obstinately persist in refusing to subscribe to such formula they shall be deposed from their office. We cannot conceive of a form of church government more presbyterial in its nature than the one defined and set forth in these 86 articles. It seems to us that our Supreme Court has in effect recognized this form of government as "being of a presbyterial nature in the case of Bear v. Heasley, 98 Mich. 279 (24 L. R. A. 615,), and cases there cited.

Article 10.

A minister, once lawfully called, may not leave the congregation with which he is connected, to accept a call elsewhere, without the consent of the consistory, together with the deacons, and knowledge on the part of the classis; likewise no other church may receive him until he has presented a proper certificate of sdismission from the church and the classis where he served.

Article 11.

On the other hand, the consistory, as representing the congregation, shall also be bound to provide for the proper support of its ministers, and shall not dismiss them from service without the knowledge and approbation of the classis and of the deputies of the (particular) synod.

Article 29.

Of the Ecclesiastical Assemblies.

Four kinds of ecclesiastical assemblies shall be maintained: the consistory, the classis (the particular synod), and the general synod.

Article 30.

In these assemblies ecclesiastical matters only shall be transacted and. that in an ecclesiastical manner. In larger assemblies only such, matters shall be dealt with as could not be finished in smaller assemblies, or such as pertain to the churches oí the larger assembly in common.

“In 1917, the defendant Bultema wrote and published a book known as ‘Maranatha,’ which book set forth the author’s idea of certain principles which it was claimed were in accordance with the Holy Scriptures. This book was given quite wide circulation, and claimed the attention of various leaders in the Christian Reformed Church, and also of some of the local churches and some classes. The synod of the church met in regular meeting in 1918. It is the custom of the church, and in accordance with its fixed practice, that those who desire to bring matters before the synod shall prepare before the meeting some notice or memorandum of such matters and send the same to the stated clerk of the synod, who publishes, a booklet called the Agendum, setting forth all of such matters that are to come before the synod, which booklet is thereupon mailed to all churches and consistories of the denomination, so that they may have ample notice of all matters coming before the synod before it meets. Several classes, prior to the meeting of synod in 1918, adopted resolutions requesting the synod of 1918 to take action on the book Maranatha and to determine whether the writings of the defendant Bultema therein contained were in conflict with the confession of faith of the church. Notice of these resolutions were duly published in the Agendum, a copy of which came to the hands of defendant Bultema prior to the meeting of synod in 1918.

Article 31.

If anyone complain that he has been wronged by the decision of a smaller body, he shall have the right to appeal to a larger ecclesiastical assembly,- and whatever may be agreed upon by a majority vote shall be considered settled and binding, unless it be proved to conflict with the Word of God or with the articles of the church order, as long as they are not changed by a general synod.

“At the meeting of synod in 1918, held at Grand Rapids, Michigan, this matter came before the synod. Defendant Bultema was present at this meeting, and was given ample opportunity to defend his book. The synod, after hearing the matter, determined that the teachings in this book were in conflict with the confession of faith of the church.
“From what I heretofore said it is clear that I am of the opinion that the synod, under the established law of the church, has full authority to hear, try and determine this matter. It was determined adversely to the defendant, and in my judgment the determination of the synod in this matter is final. The synod is the supreme ecclesiastical body in the church; it has sole power to determine what the confession of faith of the church shall be. Article 30 of the church order provides that in the larger assemblies only such matters shall be dealt with as could not be finished in the smaller ¿assemblies, or such as pertained to the churches of the larger assembly in common. Here was a book published at large throughout the church, which it was claimed was in conflict with the confession of faith of the church. The synod was the proper body to hear, try and determine this matter. I am aware that it is claimed by the defendant that he was not given proper opportunity to defend his book, for the reason that the synod denied him the right to prove by the Holy Scriptures tbat tbe book was not in conflict with, the confession of faith. The synod, however, was the proper and only body to determine-that question. It was for the synod to construe the meaning of the confession of faith, and to determine,whether or not any writing of the defendant was in conflict therewith, and its decision in the matter is final. And this court is bound to respect such decision.

Article 33.

Those who are -delegated to the assemblies shall bring with them their credentials and instructions, signed by those sending-them, and they shall have a vote in all matters, except such as. particularly concern their persons or churches.

Article 36.

The classis has the same jurisdiction over the consistory as-the particular synod has over the classis and the general synod, over the particular.

Article 37.

In all churches there shall be a consistory composed of the-ministers of the word and the elders, who at least in larger-congregations, shall, as a rule, meet once a week. The minister»' of the word (or the ministers, if there be more than one, in turn), shall preside and regulate the proceedings.

“The synod, however, decided that although it had full power and authority to determine the question of whether or not the book Maranatha was in conflict with the confession of faith, it had no. original jurisdiction to remove the defendant Buitema as minister of said First Church, and it therefore appointed a committee of three to apply to the-consistory of said First Church and to urge upon the; consistory the taking up of the matter with its; pastor. This, as I understand, was a proceeding in full accord with the law, practices and usages of -the church.
“Sometime after the meeting of the synod the committee of the synod duly appointed for that purpose-called upon the minister and consistory of the First Church o-f Muskegon for the purpose of carrying out the instructions received from synod. After the-committee had conferred with the minister and consistory they were informed by the consistory that, they would take the matter under consideration and report their conclusions later. The minister, the defendant Bultema, refused to recede from his position, still insisting that the book Maranatha was not in conflict with the confession of faith, and the consistory concluded to stand with him. Their action in the matter was duly reported. The minister refused to abide by and acquiesce in the decision of the synod, and the consistory upheld him in his stand and refused to depose him.

Wherever the number of elders is small, the deacons may b& added to the consistory by local regulation; this shall invariably" be the rule where the number is less than three.

Article 38.

In places where the consistory is to be constituted for the first time or anew, this shall not take place* except with the advice of the classis.

Article 41.

The classical meetings shall consist of neighboring churches that respectively delegate with proper credentials a minister and an elder to meet at such time and place as was determined by the previous classical meeting. Such meetings shall be held at least once in three months, unless great distances render this inadvisable. In these meetings the ministers shall preside in rotation, or one shall be chosen to preside; however, the same minister shall not be chosen twice in succession.

“Under the church law, before the minister, the elders and the deacons could be inducted into office, it was necessary for them to subscribe to the confession of faith of the church. Each of the defendants in this case have signed the formula of subscription set forth in plaintiff’s exhibit No. 1. Article 53 of the church order provides that should the minister obstinately persist in refusing to subscribe to the confession of faith of the church, he may be deposed from his office by the classis. It seems to me that the defendant Bultema, by refusing to retract his writing, as contained in Maranatha, after the same had been determined by the synod to be in conflict with the confession of faith, subjected himself to be deposed by the classis under this article.
“The First Church of Muskegon is under the jurisdiction of the classis known as Classis Muskegon. The Classis Muskegon held a meeting November 12th and 13th, 1918. At this meeting of classis the matter of the book Maranatha and defendant Bultema’s refusal to retract, and also the refusal of the consistory to depose the defendant Bultema from his ministerial office, came up for consideration. At this meeting a classical committee was appointed to urge upon the consistory the necessity of persuading its minister to retract unconditionally. This, committee made a report to classis at its meeting held April 15, 1919. The report practically stated that they had met with the minister and consistory .of Muskegon No. 1, and that the minister had retracted. The report of the committee was accepted. It appears, however, that the defendant Bultema was present in person at this meeting of classis, and declared upon the floor of classis that he had retracted nothing. The classis thereupon appointed another committee to give advice in the matter. This committee brought in a report recommending that the defendant Bultema be given another opportunity to declare before classis whether or not he was willing to retract unconditionally, and that in case he was not, he be given an opportunity to convince classis that his doctrines were in conformity with the confession. This report was adopted. The defendant Bultema was thereupon asked the question of whether or not he would retract, and he replied ‘No.’ The classis then gave him a full opportunity to defend his doctrines and to convince them that they were in accordance with the confession of faith. Defendant Bultema failed to convince the classis, and it was decided that he was in error, and that his teachings were in conflict with the confession of faith. The classis thereupon instructed Consistory Muskegon No. 1 to depose its minister in accordance with article 80 of the church order.

Furthermore, the president shall, among other things, ash every one whether they hold in their churches their consistory meeting; whether church discipline is exercised; whether the poor and the Christian schools are cared for; finally, whether there he anything wherein they need the counsel and the help of the classis for the proper institution of their church.

And, finally, at the last meeting hut one and, if necessary, at the last meeting before the (particular) synod, delegates shall be chosen to attend said synod.

Article 44.

The classis shall authorize at least two of her oldest, most experienced and competent ministers to visit all the churches once a year and to take heed whether the minister and the consistory faithfully perform the duties of their office, adhere to sound doctrine, observe in all things the adopted order, and properly promote as much as lies in. them, through word and deed, the upbuilding ,of the congregation, in particular of the youth, to the end and that they may in time fraternally admonish those who have in anything been negligent, and may by their advice and assistance help direct all things unto peace, upbuilding, and greatest profit of the churches. And each classis may continue these visitors in service as long as it sees fit, except where the visitors themselves request to be released for reasons of which the classis shall judge.

“Notice of this action of the classis was duly given to the consistory.
“The nest meeting of the classis was held August 5 and 6, 1919, at which meeting the consistory of the First Church of Muskegon notified the classis that on account of conscientious scruples it could not comply with the order of classis made at its meeting held on April 15th. At this meeting of classis there was also filed with classis protests or appeals by several members of the First Church of Muskegon from the action of the consistory of the First Church of Muskegon in refusing to depose defendant Bultema from his office as minister, in accordance with direction of synod, and classis. The filing of these protests or appeals seems to have been in accordance with the practices and usages of the church in such matters. The defendant Bultema was present in person at this meeting. After duly considering the matter, the classis decided to remain by its decision and to require the consistory to comply therewith; to appoint a committee to persuade the consistory to do so; and in case consistory refused, classis will be compelled to take action. The committee was accordingly appointed. The nest meeting of classis was held November 11 and 12, 1919. The committee appointed at former classis made a report, by which it was attempted to reconcile the position of defendant Bultema with t'he confession of faith, 'This report was rejected, and there was substituted in its .place article 20 of the minutes of classis held April 15, 1919, which contained the final action of classis at that meeting in the matter. Defendant Bultema was also present in person at this meeting. The classis thereupon decided to give the defendant another opportunity to retract, and in case of Ms refusal, to require the consistory to suspend him within three weeks’ time. That in case the consistory refused to comply then to maintain the decision of the classis by the appointment of a committee of four ministers and five elders for the purpose of suspending the pastor and consistory, and in a legal manner to call a congregational meeting to elect a new; consistory.

Article 50.

The general synod shall ordinarily meet once every two years unless there be urgent need to shorten the time.

“Another meeting of the classis was held on December 16, 1919. The committee appointed at the former meeting made a report to the effect that the consistory declined to obey the directions of the classis, but they hesitated to proceed further, for the reason that the former classis had instructed them to suspend and not to depose. Defendant Bultema was present at this meeting. After duly considering the matter, the classis decided to finally depose the pastor and consistory on the grounds set forth in the meeting of November 12th. The existing committee were thereupon instructed to execute the decision of classis in the matter of the selection of a .new consistory, and in the meantime to perform the duties of consistory of the First Church of Muske,.gon. This action was taken with the advice and consent of the deputies from synod who were present. Notice of this action was duly given in writing to the defendants, but they persisted in holding their respective offices, managing and controlling the property of the church, and holding the regular religious services of the congregation.

To this synod three ministers and three elders out of every •classis shall he delegated. If it become necessary in the opinion ••of at least three classes to call a meeting of synod within two ;years, the local church designated for this purpose shall •determine time and place.

Article 53.

Of Doctrine, Sacraments and Other Ceremonies. The ministers of the Word of God and likewise the professors •of theology (which also behooves the other professors and school teachers), shall subscribe to the three forms of unity, namely: •the Belgic confession of faith, the Heidelberg catechism, and the •canons of Dordrecht, 1618-19, and the ministers of the word who refuse to do so shall de facto be suspended from their office by the consistory or classis until they shall have given a full statement, and if they- obstinately persist in refusing, they shall he deposed from their office.

“The committee appointed by classis thereafter duly presented themselves at the church and requested from defendants the possession of the property and the right to conduct' the affairs of the cburcb as the acting consistory thereof. The defendants refused to comply with this request, and have ever since claimed to be acting as the regular and legal minister and consistory of said First Church. The congregation itself is divided, although the majority thereof adheres to the stand taken by the defendants. Since the demand of the committee was made on the defendants those of the congregation who have adhered to the stand taken by the •classis have held their religious services in a neighboring church of the same denomination, although .as a separate organization. They have proceeded to elect from among their number, in accordance with the church regulations, a new consistory, which new consistory have been made parties plaintiff in this case.

Article 54.

Likewise the elders and deacons shall subscribe to the aforesaid forms of unity.

Article 79.

When ministers of the divine word, elders or deacons, have committed any public, gross sin, which is a disgrace to the church, or worthy of punishment by the authorities, the elders and deacons shall immediately by preceding sentence of the oonsistory thereof and of the nearest church, be suspended or expelled from their office, but the ministers shall only be suspended. Whether these shall be entirely deposed from office, shall be subject to the judgment of the classis with the advice of the deputies of (particular) synod mentioned in article 11.

“Defendants’ counsel strenuously insist that the defendants have not been legally removed from their-respective offices, for the reason that the classis, under the church law, has no original jurisdiction to determine the matter in controversy, that action to remove the pastor can only be taken by the consistory in the first instance, and that if the classis have any jurisdiction in the matter whatever it is only upon appeal.
“We think that both of these contentions must be determined against the defendants. As I now view it, under the facts developed here, the-classis had original jurisdiction to proceed in this matter, and no appeal having been taken therefrom, its action is final. But, conceding that the classis has only appellate jurisdiction, the consistory was first appealed to through the synodical committee and also by several members of the congregation, and having refused to take any action, an appeal therefore was duly taken to the classis, which appeal came up for consideration at the August, 1919, meeting of classis. The evidence discloses that these appeals or protests were taken in accordance with the usual practices and usages of the church in such matters.
“Defendants also strenuously insist that even conceding that the classis had jurisdiction to hear, try and determine the matter in controversy, still defendants have had no such trial as is recognized by the courts. It is insisted that the defendants should have been informed in some formal legal manner of the charges preferred against them, and notice given, and a full opportunity offered to defend against the charges.

Article 80.

Furthermore among the gross sins, which are worthy of being punished with suspension or deposition from office, these are the principal ones: false doctrine or heresy, public schism, public blasphemy, simony, faithless desertion of office or intrusion upon that of another, perjury, adultery, fornication, theft, acts of violence, habitual drunkenness, brawling, filthy lucre; in short, all sins and gross offenses, as render the perpetrators infamous before the world, and which in any private member of the church, would be considered worthy of excommunication.

“Speaking generally, it is -true that before defendants can be removed from their offices they must' be informed of the nature of the charges pending against them, and they must be given an opportunity to defend themselves before the tribunal provided by the church law to hear, try and determine such matters. But it will not do to say that church tribunals are required to conform to all the formal rules applicable to courts of public justice. We do not see how it can be consistently argued that defendant Bultema, or the consistory, have not been fully and fairly informed of the charges against them. None of the defendants made any claim before the church tribunals that they did not know the specific nature of the charge. The question seems to have been raised here for the first time. The records of the several meetings of the classis show that the defendant Bultema was present on each occasion and took part in the discussion. Inasmuch as he was present and took part, the defense of no notice cannot be raised now, and the proceedings clearly indicate that he was at all times fully aware, as was the consistory, of the nature of the charges, although probably the same had not been preferred in a formal, legal manner.
“Under these circumstances we feel that the de fendants have had snch a trial as is contemplated, by the law in such cases. Neither can we agree-with the defendants’ contention that the tribunal which passed upon the matter was a biased and. prejudiced tribunal, and had pre-judged defendants’ case before hearing, since it was the tribunal provided by the church law, and when defendants became affiliated with this- religious denomination they thereby consented to be tried by such tribunal.
“I must conclude, therefore, that the defendants, have been properly and legally removed from their respective offices by the duly constituted authorities of the church, and consequently they are no longer-entitled to hold, manage and control the properties-of. the church by virtue of their holding the offices, of minister and deacons and elders of the First. Christian Reformed Church of Muskegon.”'

Supporting the opinion we quote the following:

“The pastor of a church in his pastoral office performs a spiritual function. Spiritualities are beyond the reach of the temporal courts. It follows that a church which has employed a pastor, though the employment be for a fixed term and at a fixed salary, may at any time, so far as the civil courts, are concerned, depose him from his spiritual office,, subject only to the inquiry by the courts as to-whether the church, or its appointed tribunal, has. proceeded according to the law of the church. * * * And in the case of a church -organized on the congregational plan the inquiry is limited to the determination whether in fact that church has acted as a congregation.” Barton v. Fitzpatrick, 187 Ala. 273 (65 South. 390).

“The civil courts will not enter into a consideration of church doctrine or church discipline, nor will they inquire into the regularity of the proceedings of the church judicatories having cognizance of such matters. To assume such jurisdiction would not only be an attempt by the civil courts to deal with matters of which they have no special knowledge, but it would be inconsistent with complete religious liberty untrammeled by State authority. On this principle the action of the church authorities in the deposition of pastors and the expulsion of members is final. Where, however, a church controversy involves rights growing out of a contract recognized by the civil law, or the right to the possession of property, civil tribunals cannot avoid adjudicating these rights under the law of the land, having in view, nevertheless, the implied obligations imputed to those parties to the controversy who have voluntarily submitted themselves to the authority of the church by connecting themselves with it. Therefore, where it is admitted, as in this case, that property belongs to a particular church, and the only question is whether the defendant claiming to be pastor should be excluded from its use, this court will only consider whether the church has ordered his exclusion, not whether it was right in so doing. Neither will the court as a civil tribunal undertake to determine whether the resolution directing exclusion was passed in accordance' with the canon law of the church, except in so far as it may be necessary to do so in determining whether it was, in fact, the church that acted.” Morris Street Baptist Church v. Dart, 67 S. C. 338 (45 S. E. 753, 100 Am. St. Rep. 727).

See, also, authorities reviewed in Bear v. Heasley, supra. What has been said disposes of this case. It is unnecessary to consider the other question suggested in the opinion, except in one particular. In 1902 the First Christian Reformed Church of Muskegon was incorporated under Act No. 148, Public Acts of 1901, being an act to provide for the incorporation of Christian Reformed Churches of America. Section 2- of the act provides in part:

“The fundamental principles of the proposed organization which shall in all cases be in conformity to the faith and constitution or form of government as adopted by the synod of the Christian Reformed Church of America in the year A. D. eighteen hundred ninety-six, and any amendments or additions thereto as shall have been adopted and may hereafter be adopted by the synod of said church.”

Of the articles of association of this religious corporation the fourth was:

“We irrevocably appropriate to the maintenance of our confession and government forever, such real and personal estate as this church now has or may hereafter acquire, and that to these objects alone it shall be applied. And that in case of any departure from the above established standards of doctrine and government by any portion of this church or congregation, such estate shall be held and enjoyed exclusively by those who adhere to said standards hereby declared and established as the basis of our church and congregation.”

In December, 1919, defendant Bultema and others attempted an amendment to said article four by adding thereto the following:

“Provided, however, that in case no departure from the established standards of doctrine and government is declared or admitted by this church or congregation, or a majority thereof and particularly if the congregation shall insist in good faith that it does and continues to conform to all essential established standards of doctrine and government of the church, then, and in that case all of the personal and real estate acquired and held by this congregation or this corporation shall continue to be so held and enjoyed and controlled, absolutely by this congregation or the majority thereof having the right to vote, and that in no case shall a minority of the congregation have a right to take away from the majority of the congregation any of the real or personal property thereof, unless such majority shall have declared or admitted that it has departed from the established standards or doctrine and government of this church or denomination.”

The amendment attempted is void. It is an effort to set up in this church of presbyterial form of government a congregational form of government. What was said in Fuchs v. Meisel, 102 Mich. 357 (32 L. R. A. 92), is applicable:

“In the freedom of conscience and the right to worship allowed in this country, the defendants and the members of this church undoubtedly possessed the right to withdraw from it, with or without reason. But they could not take with them, for their own purposes, or transfer to any other religious body, the property dedicated to and conveyed for the worship of God under the discipline of this religious association; nor could they prevent its use by those who choose to remain in the church, and who represent the regular church organization. If complainants maintain the allegations of their bill, —that they represent the regularly organized body of the church, and are its regular appointees, — they are entitled to the relief prayed.”

Articles of the church order are printed in the margin.

The decree is affirmed, with costs to the plaintiffs.

Steers, C. J., and Moore, Fellows, Stone, Bird, and Si-iarpe, JJ., concurred. The late Justice Brooke did not sit.