text:
    Wallace, Appellant, v. Snodgrass.

      Church law — Presbyterian Church — Dissolution of pastoral relation— Salary of minister.

    Where a Presbytery of the Presbyterian Church dissolves the pastoral relation between a minister and his congregation without any action on the part of the congregation, the effect-of the dissolution is to suspend the right of the minister to render pastoral services and the liability of the congregation to the minister for compensation, pending a final determination of the question as to the regularity of the action of the Presbytery. In such a case the fact that the action of the Presbytery is thereafter decreed to be illegal, does not affect the status of the parties during the period of litigation, and if the minister seeks and secures other employment during such period, and never offers to resume the pastoral relation, he cannot maintain an action against the congregation for his salary during the period from the dissolution of the pastoral relation to the date of the decree declaring such dissolution invalid.
    Argued May 17, 1907.
    Appeal, No. 94, April T., 1907, by plaintiff, from judgment of C. P. Mercer Co., Jan. T., 1904, No. 138, for defendants non obstante veredicto in ease of Joseph R. Wallace v. Leander Snodgrass et al., Trustees of the United Presbyterian Church of Jamestown, Mercer county, Pa.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for salary.
    Williams, P. J., filed the following opinion:
    The defendant congregation is an unincorporated religious association, a member of Lake Presbytery, and, as such, subject to all of the laws, usages and deliverances of the various church courts of the “ United Presbyterian Church of North America,” and bound by the various provisions of its laws relating to church government, establishing and dissolving pastoral relations, etc. The plaintiff is a regularly licensed minister of said religious body or denomination, and is, in like manner, bound by and subject to all of the laws and usages thereof, as set forth in its “ Book of Government and Discipline.”
    In the month of May, 1871, the plaintiff received and accepted a call from the defendant congregation, and was soon thereafter ordained as pastor of the Jamestown church, at a salary of fl,000 per year. Under the laws of this church or religious body, the pastoral relation thus established between the plaintiff and the Jamestown congregation would continue until regularly dissolved by the Presbytery of which said congregation should at the time be a member.
    On April 11, 1891, a petition or complaint, signed by the members of the session of the Jamestown congregation, was presented to Lake Presbytery, of which said congregation was then a member, asking that the pastoral relation between the plaintiff and the defendant congregation be dissolved, for the reasons set forth in the petition, and which appear in full on pages 4, 5 and 6 of the testimony.
    The elders signing the petition were directed to formulate their complaint into charges, in order that there might be a judicial investigation, but declined to do so. The Presbytery then resolved to investigate the matter, but not judicially, and at a subsequent meeting took sworn testimony. As a result of its investigation, the Presbytery requested the plaintiff, as pastor, and the elders, or session, to resign their offices, but this they declined to do. The Presbytery then dissolved the relation between the plaintiff and the congregation, as well as between the elders and the congregation.
    Against this action, so far as it related to himself, the plaintiff took an appeal, or removed the case to the Synod, known as the “ First Synod of the West,” and made complaint that it was illegal and unwarranted. The Synod, on September 30, 1891, after discussion upon the testimony taken, sustained the plaintiff’s appeal or complaint, thus reversing the action of the Lake Presbytery. In view of this action of the Synod, Lake Presbytery, on October 15, 1891, declared the pastoral relations between the plaintiff and the Jamestown congregation to be re-established.
    At a called meeting of Lake Presbytery, held at Sandy Lake, December 7, 1891, a petition was received, signed by ninety members of the Jamestown congregation, stating that matters were growing worse, and praying for relief. As against this petition, a counter petition was presented, signed by 151 members and adherents of the congregation, who took sides with the plaintiff. In view of these petitions, Presbytery decided to meet in Jamestown on December 14, 1891, to make inquiry and take such action as might be deemed proper. At this meeting, after inquiry and conference with the plaintiff, the whole matter was postponed until a subsequent meeting.
    On April 11, 1892, Presbytery again met, and, after requesting the plaintiff to resign, and receiving his refusal to do so, proceeded to dissolve the pastoral relation, and at the same time appointed Rev. James Dodds to preach on the fourth Sabbath of April, 1892, and declare the pulpit vacant. The plaintiff preached his last sermon to the Jamestown congregation on the third Sunday of April, 1892, and on the fourth Sunday of April, 1892, Rev. James Dodds preached there, by appointment of the Presbytery, as above stated, and declared the pulpit vacant.
    Against this action, the plaintiff offered an appeal, which the Presbytery refused to consider. He then gave notice of complaint, and within ten days thereafter lodged a copy of the same with the clerk of Presbytery, as required by the church law. The Synod, at a meeting beginning August 81 and continuing until September 6, 1892, sustained the complaint, and from this action Rev. Free, a member of the Presbytery, gave notice of an appeal by the Presbytery to the next General Assembly. The judiciary committee was then requested to bring in a paper stating the effect of this latter action, and made a report as follows:
    “ The effect of sustaining a complaint against the action taken is to reverse the action of the court below. The action of the Presbytery being reversed the relation between the pastor and congregation of Jamestown remains the same as before the action was taken. An appeal being- taken, all proceedings are arrested, and Mr. Wallace cannot enter upon the pastoral relation until the Assembly may take action.”
    This report was adopted by the Synod.
    On December 15, 1892, the plaintiff entered suit in the court of common pleas of Mercer county, Pa-, at No. 120, January Term, 1893, to recover from the defendant the salary due to him. On January 28, 1893, judgment was entered in favor of the plaintiff for the amount shown by his statement of claim, $1,211.79. On July 5, 1893, the judgment was paid, and receipted on the execution docket as follows :
    “Received July 5, 1893, from T. A. McMaster, Harrison Hunter and H. M. Gamble $1,260.12, being debt, interest and costs of the above-stated judgment to this date. . . .” It is admitted by the plaintiff that the sum recovered in this suit paid his salary in full until May 1, 1892.
    About April 1, 1893, the plaintiff began to preach regularly for the New Bethlehem congregation, in Beaver county, Pa., said church being a member of Frankfort Presbytery. On May 30, 1893, the appeal of Lake Presbytery from the action of the First Synod of the West was sustained by the General Assembly at its meeting held at Monmouth, 111. Shortly after this action of the General Assembly, the plaintiff received and accepted a call from the New Bethlehem congregation of Frankfort Presbytery, and removed his family there about the last of May or June 1, 1898. The plaintiff also applied for and received a certificate of ministerial standing and dismissal from Lake Presbytery, and on September 19, 1893, was duly installed as pastor of the New Bethlehem congregation, of Frankfort Presbytery, where he has since continued as pastor, and has rendered no services to the Jamestown congregation since the third Sunday of April, 1892, the date of preaching his last sermon there.
    In 1898, about five years after the decision of the General Assembly, and about three years after its refusal to grant a rehearing, the plaintiff filed in the court of common pleas, No. 1, of Allegheny county, Pa., a bill in equity to declare void the action of the General Assembly in sustaining the action of Lake Presbytery dissolving the pastoral relation between the plaintiff and the Jamestown congregation. The bill was served on the trustees of the General Assembly, who answered that they were not proper parties to the bill, and, to sustain their answer, referred to the charter of the General Assembly. Upon inspection of the charter the court below sustained the answer and dismissed the bill. On appeal this action was reversed by the Supreme Court, in an opinion delivered by Mr. Justice Dean on December 30, 1899, reinstating the bill and directing the defendants to make answer thereto : 194 Pa. 178.
    After full hearing, the court below, in an opinion by Stowe, P. J., found as a fact that there were irregularities in the proceedings before the General Assembly which rendered its decision null and void, and entered a decree as follows :
    “And now, June 10, 1901, this cause came on to be heard at this term, and was argiied by counsel, and, therefore, upon consideration thereof, it is ordered, adjudged and decreed that the action of the General Assembly of the United Presbyterian Church of North America, in reversing the action of the First Synod of the West, and sustaining the action of Lake Presbytery in removing Jos. R. Wallace, the plaintiff, from the pastorate of the Jamestown United Presbyterian Church, be declared null and void. And that he be restored to the position of pastor of said church, with all the rights and benefits pertaining thereto, as fully and with the same effect as if the action of the First Synod of the West had not been reversed.”
    On an appeal this decree was affirmed by the Supreme Court, in an opinion delivered by Mr. Justice Dean on January 6, 1902 : 201 Pa. 292.
    After the affirmance of the decree, as above stated, the plaintiff gave or sent copies of it to the elders of the church and to the clerk of Lake Presbytery, and at a meeting of Lake Presbytery, held at Adamsville, Pa., June 20, 1902, the following notice was directed to be sent to the plaintiff and the Jamestown congregation:
    “ Adamsville, Pa., June 20, 1902.
    “ The Rev. J. R. Wallace, Zeller, Pa.
    “ Dear Bro.: At a special meeting of Lake Presbytery held in Adamsville yesterday the subjoined action was taken, and this will be your official notification of the same. It will also be official notice to you of the meeting of Presbytery therein v referred to.
    “Very respectfully,
    “ David Reed Milled, Clerk.”
    Following is the action of Presbytery :
    “ Your committee would recommend in the case of J. R. Wallace as now before us, by action of the General Assembly, (1) That he be officially notified that the way is now clear for his occupancy of the pulpit and pastorate of the Jamestown congregation.
    “ (2) But inasmuch as we cannot allow a member of another Presbytery to continue in the relation of pastor in a congregation under our jurisdiction, he be required to furnish a certificate of standing and dismissal from E'rankfort Presbytery and unite with this Presbjdery.
    “ (3) That a meeting of Lake Presbytery be called for July 11, 1902, at 11 A. M. in Greenville, Pa., to consider the action of J. R. Wallace in this matter and such other business as may properly come before us.
    “ (1) That a copy of this action be sent by the clerk to Rev.. J. R. Wallace, and also one to the Jamestown congregation.
    “ P. W. Fdee, “ Sam’l Dodds, Com.’

      On July 11, 1902, the plaintiff went to the meeting of Presbytery in Greenville, and a committee, consisting of David Reed Miller, Professor Samuel Dodds and Elder Orr, was appointed to wait on him and receive his answer to the resolutions of Presbytery, as above set forth. To this committee he presented a paper, as follows :
    “ Rev. D. R. Miller, D. D., Clerk of Lake Presbytery.
    “ Dear Sir: Your note and copy of action of Lake Presbytery reached me on June 25, only sixteen days ago.
    “ I had been absent from home, and the congregation to whom I have been preaching was dismissed for a month’s vacation. Under the circumstances it was impossible for me to get my dismissal from Frankfort Presbytery and present the same to this Presbytery to-day, as required by second resolution.
    “ If, however, customary courtesy would be allowed me I can procure my credentials later at my earliest convenience, and can preach in Jamestown next Sabbath, July 18, 1902.
    “ Respectfully submitted,
    “ J. R. Wallace.”
    It seems that this committee declined to accede to the terms proposed in this paper, and made a partial oral report to Presbytery to the effect, “ that negotiations looking toward an amicable settlement were under way, but before reaching a definite conclusion Brother Wallace had a request to present to the Presbytery,” which is as follows :
    “ I ask a conference with the pastors of Presbytery, that I may see my duty clearer in the hope of a peaceful settlement of the matter to-day.”
    The conference was granted by adding the pastors of Presbytery to the committee. After the conference had been held the committee reported that an amicable settlement had been reached by the resignation of the plaintiff of all pastoral claims in the Jamestown congregation. His resignation is made apart of the report, and is as follows :
    “ After conference with the pastors of Presbytery with reference to the present state of the congregation, I am satisfied that the way is not clear for my restoration, and that the decree of the civil court cannot be carried out without trouble to the congregation. I, therefore, resign my pastorate of the U. P. Church of Jamestown, Pa. J. R. Wallace.
    “ Greenville, Pa., July 11, 1893.”
    The report was adopted, the resignation laid on the table, and the clerk directed to notify the congregation. The Presbytery then adjourned to meet in Exposition Park, Conneaut Lake, August 14, 1902, to act on this resignation.
    On August 14, 1902, the plaintiff presented to Presbytery a paper as follows :
    “ Whereas, I am now persuaded that I was misled by representations made to me at Greenville, Pa., July 11, 1902, and previously, concerning the state of the IJ. P. Church of Jamestown, Pa., and, whereas, in giving up my demit of my pastorate in said church I acted through fear that I would be deposed from the ministry that day, or steps would be taken to that end if I did' not resign; and, whereas, I have been credibly informed that the congregation has not been cited to appeal and lias taken no action on my demit, I hereby withdraw it.
    “ This I do with the distinct understanding that as soon as possible I will seek to have the First Synod of the West transfer me and the congregation of Jamestown, Pa., to the fellowship of Cleveland Presbytery. And this I would do that this Presbytery might have no trouble with me and that I might have no trouble with them.”
    It appears from the minutes of this meeting of Presbytery that the resignation of the plaintiff was taken up, and the clerk stating that notice of the demit had been served on the Jamestown congregation, a motion was made to accept the resignation. The plaintiff was then given fifteen minutes to present his side of the case, after which the resignation was unanimously accepted, and Rev. J. H. McCormick was appointed to preach in Jamestown on August 31, 1902, and declare the pulpit vacant. On September 9, 1902, Rev. McCormick reported that he had, in obedience to the direction of Presbytery, preached in Jamestown on August 31, 1902, and declared-the pulpit vacant.
    After this action of the Presbytery, the plaintiff petitioned both the First Synod of the West and the General Assembly to set it aside, but his petition was refused by both bodies. Hence, the action of Lake Presbytery in accepting plaintiff’s resignation on August 14, 1902, and dissolving the pastoral relation between him and the Jamestown church on August 31, 1902, stands unreversed.
    On January 15, 1904, the plaintiff entered suit in the court of common pleas of Mercer county, at No. 133, January Term, 1904, against the trustees of the Jamestown congregation, to recover eleven annual installments of salary of $1,000 each, accruing since May 1, 1892, with interest on each installment from the time it became due, on June 1, of each year.
    At the close of the testimony produced on the trial, showing the facts above summarized, the court, on November 29, 1905, refused the request of defendants’ counsel for binding instructions in favor of the defendants, and directed a verdict for the plaintiff for the sum of $960, subject to the opinion of the court on the legal question raised by defendants’ third point.
    It was conceded by the plaintiff and his counsel that plaintiff’s salary had, prior to the bringing of this suit, been paid in full to May 1,1892, and that on September 19,1893, the plaintiff was duly installed as pastor of the New Bethlehem congregation of Frankfort Presbytery, he having previously applied for and received a certificate of ministerial standing and dismissal from Lake Presbytery, of which he was then a member, as required by the laws and usages of the United Presbyterian Church. The verdict is for the sum agreed upon by counsel as the amount of the plaintiff’s salaiy, at $1,000 per year, from May 1, 1892, until September 19, 1893, after deducting therefrom the amount received by him from other sources, and computing interest on the balance to date of verdict.
    The defendants’ third point, with the answer of the court thereto, is as follows:
    3. That the legal effect of the action of Lake Presbytery taken on April 12, 1892, dissolving the pastoral relation between the plaintiff and the United Presbyterian Congregation of Jamestown, and the rulings and deliverances of the First Synod of the West and the General Assembly, in this matter, received in evidence, was to relieve the plaintiff from the obligation of ministering to said congregation, and also to relieve the congregation from the obligation of paying any salary to the plaintiff, as long as these rulings and deliverances stood, or until the date of the decree of the Supreme Court of Pennsylvania setting aside the action of the General Assembly. Answer: The legal question raised by this point is reserved.
    Counsel for the plaintiff except, generally, to the charge of the court, and to the refusal of the court to affirm their first, second and third points, including the various paragraphs thereof. They also except to the affirmance of the defendants’ first, second, fourth and fifth points.
    The question raised by these several exceptions may well be disposed of in our consideration of the motion of defendants’ counsel for judgment on the reserved question, non obstante veredicto.
    An accurate understanding as to who are the real parties to this action will conduce to a clearer conception of the contractual relations between them and the duties and obligations resting upon each. The defendant congregation is an unincorporated religious association, and such organizations are recognized by the law of Pennsylvania as having a legal entity separate and apart from its members. The fact that this suit, as brought, is against certain individual members of the defendant congregation as trustees, is of no particular moment or controlling importance, as a suit in this form is well brought and service on the trustees is sufficient to give the court jurisdiction over such congregation, as an unincorporated religious body or association.
    Further than this, it seems to be conceded on both sides and, in fact, the learned counsel for the plaintiff have filed a stipulation to the effect, that no judgment can be entered against the individuals named, but if judgment be entered in favor of the plaintiff, it must be against the congregation, and the lien thereof or of any execution issued thereon be confined or restricted to the property of the congregation or religious body known as the United Presbyterian Church of Jamestown, Pa.
    We have, then, as plaintiff, Rev. J. R. Wallace, and as defendant the United Presbyterian Congregation of Jamestown, Pa., not as individual members, but as a legal entity or body, separate and apart from its members.
    Prior to and at the time of the establishment of the pastoral relation between them, the plaintiff and defendants were each subject to the laws and usages of the United Presbyterian Church of North America, and from and after the establishment of such relation, were subject to the jurisdiction of Lake Presbytery, the First Synod of the West and the General Assembly, and were bound by the laws, usages and deliverances of each of these church courts in all matters brought before them for adjudication.
    About May 1, 1871, the defendant congregation called the plaintiff as pastor, which call was sustained by Lake Presbytery, and he was thereafter duly ordained and installed as pastor of the Jamestown congregation, at a salary of $1,000 per year. The relation thus established between the parties gave rise to certain reciprocal duties and obligations to be discharged by each toward the other. It became the duty of the plaintiff to faithfully “ perform all the duties of a pastor, to preach the Gospel in purity and simplicity; to catechise and exhort from house to house, to visit the sick, and to perform whatever other duties were incumbent on him as a faithful minister of Christ.” It likewise became the duty of the defendant congregation to “ encourage the plaintiff in his labors for its instruction and edification, to submit to him in the due exercise of his authority, and while he was its pastor to give him a competent worldly support, and whatever else it might see to be needfnl for the honor of religion and his comfort.”
    These were mutual and dependent promises, performance by one party'being the consideration for performance by the other. The plaintiff’s promise was to perform the duties of a pastor for the defendant congregation. The defendant congregation promised to pay, as a consideration for such services, the compensation agreed upon. Until the plaintiff had rendered some of the services contracted for, had, at least, partly performed his contract, no obligation accrued against the defendant congregation to pay to him any part of the compensation, unless performance was prevented by some act of the defendant. Liability, then, under this contract would extend only to such breaches thereof as were within the control of the party alleged to be in default, and not to those caused by circumstances over which such party had no control.
    This being the situation of the parties at the time the pastoral relation was established between them, a consideration of their subsequent actions will aid in a determination of their respective liabilities in the present controversy.
    For some twenty years after his ordination, the plaintiff continued to discharge his duties as pastor of the defendant congregation, and it, from time to time, paid to him the salary agreed upon. On April 11, 1891, as we have already seen, eight members of the session of the Jamestown church, of their own motion and, as the testimony shows, without any action taken by the congregation, presented to Lake Presbytery some complaint against the plaintiff, and requesting a dissolution of the pastoral relation. The elders who signed the petition declined to put the same in the form of charges, but Presbytery decided to investigate the matter informally, and as a result, requested both the pastor and the elders to resign, and on their refusal, dissolved the relation between the plaintiff and the congregation, as well as between the elders and the congregation. On an appeal by the plaintiff from this action, the Synod reversed the action of the Presbytery, and, on October 15, 1891, declared the pastoral relation between the plaintiff and the Jamestown congregation re-established; On December 7, 1891 — without any action by the Jamestown congregation — a petition signed by ninety members was presented to Lake Presbytery, stating that the matters of difference between the plaintiff and said congregation were growing worse, and asked for relief; but did not ask for a dissolution of the pastoral relation, but left the whole matter in the hands of Presbyteiy. As against this petition, a counter petition was presented, signed by 151 members of the congregation who seem to have taken sides with the plaintiff, thus clearly showing that neither petition was presented as a result of any congregational action.
    Presbytery considered both of these petitions and, after investigation, requested the plaintiff to resign, and on his refusal to do so, dissolved the pastoral relations and appointed a commissioner to declare the pulpit vacant. This action of the Presbytery was reversed by the Synod, but on an appeal, taken by a member of the Presbytery, the General Assembly reversed the action of the Synod and affirmed the action of the Presbytery.
    Pending a decision of the case by the General Assembly, the plaintiff began to preach regularly for the New Bethlehem congregation of Frankfort Presbytery, and shortly after the deeision was rendered, he accepted a call from said congregation, obtained a certificate of ministerial standing and dismissal from Lake Presbytery, was duly installed as pastor of said congregation and has remained there ever since, having in the meantime rendered no services whatever to the defendant congregation.
    After having acquiesced in the decision of the General Assembly for two years, the plaintiff petitioned for a rehearing, which was refused. After waiting three years longer, he proceeded against the General Assembly in 'the civil courts, and succeeded in having the action of the General Assembly declared null and void.
    The defendant Congregation was at no time a party to any of the proceedings above referred to, either in the church courts or in the civil court, nor does it appear that it ever took any action, as a congregation, pertaining to any of said pro-. ceedings. Nor is there any evidence to show that it at any time authorized or directed any person either to institute or conduct any of said proceedings in its behalf. The most that can be said is that the members of the session at one time, and some dissatisfied members of the congregation at another, made complaints, upon which Presbytery took the action complained of. How, then, could any liability accrue against the defendant congregation, whether said proceedings were void or otherwise? If it be argued that the defendant congregation is bound by the act of the session, the answer is that, under the laws of the United Presbyterian -Church, the session is charged with the spiritual oversight and government of the congregation; but we find no power vested in the session to act of its own motion on behalf of the congregation in preparing charges against the pastor. Aside from this, however, the action of the Presbytery in dissolving the pastoral relation, in pursuance of a complaint filed by the session, was reversed by the Synod and the pastoral relation re-established. Hence, it is of no importance in the present controversy whether the action of the session as to these charges was binding on the congregation or not.
    As a part of his ordination and installation as pastor of the Jamestown congregation, the plaintiff was asked and required to give affirmative answers to, inter alia, the following:

      “III. Do you approve the Presbyterial Form of Church Government and the Directory for Worship, received by this church, as agreeable to, and founded on, the Word of God, and are you resolved, by the grace of God, to maintain and defend them ?
    “ IV. Do you promise to submit, in the spirit of meekness, to the admonitions of the brethren of this Presbytery, in subordination to the Synod and General Assembly
    Both the plaintiff and the defendant congregation were bound by the laws and usages of the United Presbyterian Church, and if obedience to the decision of the church courts justified the plaintiff in withholding his services from the defendant congregation, the same law would'excuse or justify the congregation in withholding the compensation agreed upon for such services. If obedience to the laws and usages of the church and the decisions of the church courts can be invoked as an excuse or justification for nonperformance of his services as pastor of the Jamestown congregation, they can also be invoked by the defendant congregation as a defense in a suit to recover compensation for the period during which no services were performed by the plaintiff, especially when the defendant congregation was not a party to tire proceedings which resulted in a suspension of the pastoral relation previously established between them, and was compelled to support another pastor or pastors during the time the controversy between the plaintiff and some of the individual members of the congregation was pending in the church courts. Even conceding that the action of Presbytery in dissolving the pastoral relation was based on a charge or complaint presented in pursuance of the -official act of the defendant congregation, the church law and the decisions of the church courts were equally binding upon both parties: Riddle et al. v. Stevens, 2 S. & R. 537.
    In the case cited, suit was brought by the pastor to recover for services alleged to have been rendered. At the trial, the defendants offered in evidence the minutes of the proceeding of Presbytery dismissing the plaintiff from his pastoral charge, on the complaint made against him for improper conduct in his private capacity. The court admitted the evidence, so far as it went to prove the suspension or removal of the plaintiff, but directed the jury that it was not evidence so far as it went to inculpate the plaintiff, or was alleged to have dissolved the contract of the defendants for services actually rendered. Tilghman, G. J., in delivering the opinion of the Supreme Court, on this branch of the case, said: “ The second error is the not permitting to be given in evidence the proceedings of the Huntingdon Presbytery, on a complaint made against the plaintiff for improper conduct in his private capacity. These proceedings were, in some respects, directly pertinent to the issue; the plaintiff’s demand is for services rendered to the defendants as their pastor; the Presbytery, according to the rules and discipline of the Presbyterian Church, had power to suspend the functions of the plaintiff, or even to remove him from his ministry. So far as concerned his suspension or removal, the jury were directed to consider the proceedings as evidence; but no regard was to be paid to the details of evidence before the Presbytery; the particular facts alleged or proved were to have no effect on the verdict; the decision of the Presbytery as to the suspension or removal of the plaintiff, was the only matter to be regarded. Every church has a discipline of its own; it is necessary that it should be so; because, without rules and discipline, no body composed of numerous individuals can be governed. But this discipline is confined to spiritual affairs; it operates on mind and conscience, without pretending to temporal authority. No member of the church can be fined or imprisoned; but be he minister or layman, he may be admonished, reproved and finally ejected from the society; so, may he retire from the society, at his own free will. Under these restrictions, religious discipline may produce much good, without infringing on civil liberty. Both plaintiff and defendants were subject to the laws of the church, both as to the induction and removal of the plaintiff; according to these laws, it was not in the power of the defendants to remove the plaintiff; the Presbytery alone could do it, with a right of appeal, first to the Synod, and in the last resort, to the General Assembly. This being the case, it was to no purpose to enter into the particulars of the plaintiff’s misconduct before the jury; the cause has been heard and decided by the Presbytery; and so far as regarded the plaintiff’s continuance in his ministry, that decision is binding, subject to an appeal to the superior ecclesiastical tribunals, as before mentioned. The court of common pleas was right, therefore, in deciding that the proceedings before the Presbytery were evidence only so far as they proved the suspension or final 'discharge of the plaintiff.”
    In the case cited, the suit was to recover only for services rendered prior to the suspension or dismissal of the plaintiff, but the principle stated is applicable to the case at bar, and clearly shows that when Presbytery, whether acting upon complaint or charges preferred by the congregation or by individual members thereof, dissolved the pastoral relation between the plaintiff and the defendant congregation, its action was binding both on the plaintiff and the defendant congregation, subject only to appeal to the Synod and, finally, to the General Assembly, and that the legal effect of the decision of Presbytery was to at least suspend the plaintiff’s right to continue in the capacity of pastor of the Jamestown congregation, and also to suspend the liability of said congregation to the plaintiff, pending final disposition of the matter in the church courts.
    The action of Presbytery in dissolving the pastoral relation between the plaintiff and the defendant congregation was affirmed by the General Assembly, the highest church court of the United Presbyterian Church, and while the decision of the General Assembly was, as we have already seen, decreed null and void by the civil court, such decree was based entirely on the failure of the appellant on its appeal from the decision of the Synod to lodge its appeal and the reasons for it with the clerk of the General Assembly, together with authenticated copies of the record and testimony. The defendant congregation, however, was not a party to the suit brought in the civil court; neither was it a party to the proceedings in the church .courts.
    We are, therefore, unable to conceive how a congregation bound by the decision of the Presbytery of which it is a member, dissolving the pastoral relation, can be deprived of the services of its pastor during a long period of litigation, to which it was not a party, and still be liable to such pastor for the compensation agreed to be paid to him as a consideration for services actually rendered.
    To hold the defendant congregation liable under the circumstances of this case is to say to it: “ Lake Presbytery- has dissolved the pastoral relation existing between Rev. Wallace and the Jamestown church; this decision is binding on Rev. Wallace so that he can render no services to the congregation until the action of Presbytery has been passed upon by the General Assembly. It is also binding on the congregation so that it cannot accept his services pending a decision of the matter by the church courts. If, however, the decision of Presbytery is reversed because of some irregularity in the proceedings, in which the congregation had no part, it will still be liable for his salary in the meantime, although no services were rendered by him, and this notwithstanding the fact that the congregation has been compelled to support another pastor in the meantime.”
    The simple statement of such a proposition appears to our mind as both illogical and inequitable. There is no legal distinction between a contract with a minister and his congregation and any other civil contract for personal services. Hence, if performance of the contract becomes impossible by reason of any law, civil or ecclesiastical, which is binding on both parties, the liability of the parties thereunder is at an end.
    Suppose that the defendant congregation had felt that it had been greatly damaged through the loss of the plaintiff’s services to it, and had brought suit against him to recover damages for a breach of contract, would not his showing'that he had been prevented from rendering the services contracted for, by an act of the church court dissolving the pastoral relation between him and the plaintiff congregation, have been a bar to a recovery? We are clearly of the opinion that it would, and this notwithstanding the fact that it might subsequently appear that there was some irregularity in the proceedings by which a dissolution of the pastoral relation was declared, as the judgment of the church court was binding upon the parties until reversed by competent authority. If such a dissolution of the pastoral relation would protect the plaintiff if he were the defendant in a suit brought by the congregation, it will equally protect the congregation in a suit brought agaiust it.
    That this was the view of the plaintiff is evidenced by his action subsequent to the decision of the Synod, from which an appeal was taken to the General Assembly, to some of which we may refer, as showing his acquiescence :
    1. The pulpit of the Jamestown church was declared vacant, by direction of the Presbytery, on the fourth Sunday of April, 1892, since which time no services whatever were rendered by the plaintiff to the defendant congregation. The decision of the First Synod of the West, reversing the action of Lake Presbytery, was delivered and an appeal therefrom taken some time between August 81 and September 6, 1892.
    2. The plaintiff began preaching for other congregations, and on December 15, 1892, entered suit in the court of common pleas of Mercer county to recover salary due to him to May 1, 1892, and made no claim whatever for salary accruing subsequent to that date, and on July 5, 1893, the judgment obtained in said suit was paid to his attorney, and so receipted on the record.
    3. About April 1, 1893, the plaintiff began to preach regularly for the New Bethlehem congregation, in Beaver county, said church being a member of Frankfort Presbytery.
    4. Shortly after the decision of the General Assembly on May 30, 1893, the plaintiff accepted a call from the New Bethlehem congregation, applied for and received a certificate of dismissal from Lake Presbytery, and was duly installed as pastor of said congregation.
    5. About two years after the decision of the General Assembly, the plaintiff petitioned for a rehearing, which was refused, and in this refusal he acquiesced for some three years before commencing his action in the civil courts.
    6. About one year after the decree of the civil court had been affirmed by the Supreme Court, the plaintiff resigned his pastorate of the Jamestown congregation, which resignation was accepted by Presbytery on August 14, 1902, and the pastoral relation was dissolved on August 31, 1902; and on January 15, 1904, about one year and a half after the aeceptance of his resignation, he entered the present suit to recover eleven annual installments of salary, from May 1,1892, covering a period during which he rendered no services whatever to the Jamestown congregation, and during which time said congregation was compelled to support another pastor and pay to him the sum of $1,000 per year for performing the very services that should have been performed by the plaintiff.
    These facts and circumstances are persuasive evidence of the plaintiff’s understanding that the action of Presbytery was binding upon him and suspended his right, not only to perform any services for the Jamestown church, but also his right to receive compensation during such time as the action of Presbytery remained unreversed. The fact that it was finally determined by the civil court that the action of the General Assembly, reversing the First Synod of the West and thus affirming the action of Presbytery, was irregular because of some informality in taking or prosecuting the appeal, does not, to our mind, change the situation of the parties. The action of Presbytery suspended the right of the plaintiff to perform the services required of him as well as the liability of the defendants to compensate him therefor, pending a final settlement of the matter in the church court, and this whether the action of Presbytery should finally be determined to be legal or illegal. If any right accrued to the plaintiff by reason of irregularity in the proceedings dissolving the pastoral relations between him and the Jamestown congregation, his remedy, in the opinion of the court, would be an action for damages for a wrongful dismissal, instead of an action to recover salary for the period during the time the matter was pending in the courts, and during which he rendered no services whatever.
    The theory of the learned counsel for the plaintiff seems to be that the decree of the civil court, declaring the action of the General Assembly in sustaining the action of Lake Presbytery in removing the plaintiff from the pastorate of the Jamestown church null and void and decreeing that he be restored to the position of pastor of said church, carried with it the right to recover from the defendant congregation salary for the time his services were suspended. This conclusion, however, does not follow from the language of the decree, even had the court had the power to make a decree against the defendant congregation. The language of that part of the decree as to the plaintiff’s restoration is as follows: “ And that he be restored to the position of pastor of said church, with all the rights and benefits pertaining thereto, as fully and with the same effect as if the action of the First Synod of the West had not been reversed.” This decree makes no reference to the right of the plaintiff to recover salary for the time intervening between the date when the pastoral relation between him and the Jamestown church was dissolved and the time of his restoration was decreed by the civil court; nor could it do so, for the reason that that question was not. before the court. The proceeding in which this decree was entered was an equitable one, in which the plaintiff “ avers that the illegal action of the church courts had deprived him of his salary which his congregation was willing to pay him, had injured him in bis standing and reputation as a Christian teacher, and had practically excluded him from the reasonable exercise of the profession by which he lived. ” The proceeding was in ho sense one for the recovery of compensation for a period when no services were performed, and during which the plaintiff’s right to perform them was suspended by the action of the church court, but was rather one for the restoration of the plaintiff to a position where he could earn the living or salary of which he alleged he had been deprived by the action of the church court. The decree of the court should, therefore, be construed accordingly, and, when so construed, is perfectly clear and consistent.
    The plaintiff was pastor of the Jamestown congregation, receiving the salary of $1,000 per year. The pastoral relation had been, as it subsequently appeared, illegally dissolved, and the plaintiff was thus deprived of the opportunity of earning the salary he had been receiving. He appealed to the civil court for relief, asking that he be restored to the pastorate from which he had been dismissed, and thus placed in a position to perform the duties of a pastor and receive the compensation fixed therefor. Hence, the effect of this decree was to restore the plaintiff to the position of pastor of said church, and thus place him in a position for performing the services of a pastor and earning the compensation agreed upon. This was evidently the understanding of the plaintiff, as he at once served copies of this decree on the elders of the church and the clerk of Lake Presbytery; and then followed the action of the Presbytery notifying the plaintiff that the way was then open for his occupancy of the pulpit and pastorate of the Jamestown church. It appeared, however, that the plaintiff was at that time, and had been for some eight or nine years, the pastor of the New Bethlehem congregation of Frankfort Presbytery, having taken a certificate of dismissal from Lake Presbytery, and, therefore, not eligible to the pastorate of the Jamestown church, and could not be until he would receive a certificate of dismissal from Frankfort Presbytery, in the manner provided by the laws of the churoli. Instead of placing himself in a position for performing the duties of pastor of the Jamestown • congregation, the plaintiff resigned the pastorate, to which he had been restored by the decree of the court, and this without performing any services whatever.
    Assuming, however, that the plaintiff would be entitled to recover the compensation stated in the call, less such sums as lie earned and received from other sources during the time his services were suspended by the action of Lake Presbytery, it is clear that this right was determined by his action in asking for and receiving a certificate of ministerial standing and dismissal from Lake Presbytery, thus voluntarily severing his connection with Lake Presbytery and accepting the call of the New Bethlehem congregation in Frankfort Presbytery.
    The testimony shows that the plaintiff had severed his connection with Lake Presbytery and was installed as pastor of the New Bethlehem congregation as early as September 19, 1893. Plence, his right, if any existed, to recover from the Jamestown congregation salary from May 1, 1892, to September 19, 1893, would accrue on the date last mentioned, and would be barred by the statute of limitations, unless suit was brought within six years from that date. This suit was brought on January 15,1904, a period of a little over eleven years after the right of action accrued.
    The .conclusions we have reached may, therefore, be summarized as follows:
    1. The action of Lake Presbytery in dissolving the pastoral relations between the plaintiff and the defendant congregation was binding upon both parties, and had the effect of suspending the right of the plaintiff to render services required of him as pastor of the Jamestown congregation, and also suspended the liability of the defendant congregation to the plaintiff for the compensation agreed upon, pending a final determination of the question as to the regularity of the action of Presbytery in dissolving the pastoral relation.
    2. The defendant congregation, not being a party to any of the proceedings in the church courts, was in no way responsible for the action of Lake Presbytery in dissolving the pastoral relations between the plaintiff and said congregation, whether such action was legal or illegal.

      3. The right of the plaintiff to perform the services of pastor for the Jamestown congregation and the liability of the defendant congregation to pay the compensation mentioned in the call to the plaintiff, having been suspended by the act of Lake Presbytery in dissolving the pastoral relation, the fact that the action of Lake Presbytery was thereafter decreed to be illegal, either by the civil or church courts, would not change the status of the parties pending a final determination of the question as to the legality of the action of Presbytery, but could do no more than restore the plaintiff to his pastoral rights and fix the liability of the defendant congregation for the payment of compensation for services thereafter performed.
    4 If any right of action existed in favor of the plaintiff as against the defendant congregation by reason of the action of Lake Presbytery in dissolving the pastoral relation, his remedy would be an action for damages for a wrongful dismissal.
    5. If the plaintiff were entitled to recover anything as salary from the defendant congregation after the pastoral relation had been dissolved by Lake Presbytery, said recovery would be at the rate of $1,000 per year, less such sums as the plaintiff earned and received from other sources, and his right to recover would cease and determine upon his voluntarily severing his connection with Lake Presbytery and accepting a call from the New Bethlehem congregation of Frankfort Presbytery.
    The conclusions stated make it unnecessary to discuss the various exceptions in detail. ■ It follows, from these conclusions, that judgment must be entered in favor of the defendant congregation on the reserved question, non obstante veredicto.

      Error assigned was the judgment of the court.

      H. E. Siebeneclc, of Seymour, Patterson $ Siebeneclc, for appellant.
    A void judgment, order or decree in whatever tribunal it may be entered is, in legal effect, nothing. All acts performed under it and all claims flowing out of it are void: Freeman on Void Judicial Sales, 17; Chicago, etc., Ry. Co. v. Summers, 113 Ind. 10 (14 N. E. Repr. 733; Blanton v. Carroll, 86 Va. 539 (10 S. E. Repr. 329) ; White v. Foote Lumber, etc., Co., 29 W. Va. 385 (1 S. E. Repr. 572) ; Campbell v. McCahan, 41 Ill. 45; Miller’s Estate, 159 Pa. 562; Krecker v. Shirey, 163 Pa. 534; Haddock v. Haddock, 201 U. S. 562 (26 Sup. Ct. Repr. 525).
    October 7, 1907:

      S'. S. Mellará, with him Q. A. Gordon for appellees.
    The defendant not having discharged nor caused the discharge of plaintiff from the pastorate of defendant congregation, and the plaintiff not having performed any of the duties of said pastorate during the period in question, plaintiff is not entitled to recover from defendant salary as pastor nor damages for a wrongful discharge : Bredin v. Agnew, 3 W. & S. 300; Wright v. Smyth, 4 W. & S. 527; Stokes v. Burrell, 3 Grant, 241.
   Opinion by

Rice, P. J.,

The controlling question in this case is one of law, arising out of facts which both parties admit are not in dispute. They are fully, clearly and accurately set forth in the opinion filed by the learned judge below, and there is no occasion for an attempt to restate them, either more elaborately or in more condensed form. From these facts the learned judge drew several legal conclusions, which are clearly and concisely stated in logical order at the end of his opinion. We concur with him in the first three of these conclusions as well as in his general conclusion that judgment should be entered for the defendant congregation non obstante verdicto, and in the reasoning of his opinion in support of them. We deem it unnecessary to go over the ground again, and will only notice two or three criticisms of them which are set forth in the elaborate and learned argument of the appellant’s counsel.

As to the first conclusion, it is objected that the obligation of the Jamestown congregation to pay revived upon the date of the decree of the court of common pleas. But as an appeal (see Wallace v. Trustees of the General Assembly of the United Presbyterian Church, 201 Pa. 292), was taken therefrom, that decree could not have the effect claimed unless, first, the appeal did not operate as a supersedeas, and, second, the plaintiff was able and offered, after the decree of the common pleas and before the affirmation of the decree by the Supreme Court, to resume the pastoral relation and to perform his pastoral duties. We need not discuss the question of supersedeas, because the second essential was not established.

It is argued, however, that the decree of the Supreme Court operated to restore the obligation from the date of the dissolution of the pastoral relation, because, say counsel, speaking of the decree of dissolution by presbytery, “ a void decree is void from its inception and not from the date when the final entry is made of the judicial declaration of its nullity.” But we do not see how it can be successfully claimed that the action of presbytery had the effect to relieve him from the obligation to perform the pastoral duties he promised to perform at his installation, but did not relieve the congregation from its obligation to pay the salary. We are of opinion that according to the law of the church both were bound by that action of presbytery until it was annulled by the decree of the Supreme Court. But if it was a mere nullity which neither was bound to respect, the objection arises that the plaintiff did not elect so to treat it and to go on with the performance of the pastoral duties to which he had' obligated himself as a condition precedent to his right to demand compensation.

To avoid this objection counsel are compelled to take the position that the presbytery was the agent 'of the congregation. This proposition, so far as it depends upon proof that the congregation brought about, or contributed to bringing about, the dissolution of the pastoral relation, is without any support whatever in the evidence. The congregation did not institute nor promote the proceeding in any way. Nor can the proposition be sustained upon the ground that the church law created the relation of principal and agent between the presbytery and the congregation. The former is the ecclesiastical superior of the latter, and is no more its agent in the formation or dissolution of a pastoral relation than it is the agent of the pastor. At the foundation.of the case is the principle that the promises of the plaintiff and the Jamestown congregation at the installation of the former were mutual and dependent. This being the case, and the action of the presbytery being as binding upon the plaintiff as it was upon the congregation until' it was annulled by rhe civil court, and the congregation not being in any way responsible for that action which prevented the plaintiff from performing his part of the contract, and the presbytery not being in fact nor under the church law the agent, in any sense of the term, of the congregation in this matter, we are unable to escape the conclusion that the obligation of the congregation to pay the salary was suspended until the action of presbytery was annulled.

In the foregoing we have not attempted a full review and discussion of the questions involved in the case, because it seems to us unnecessary in view of the elaborate and satisfactory manner in which that has been done by the learned judge below.

The judgment is affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Wilson v. Pittsburg & Lake Erie Railroad Company, Appellant.

      Railroads — Condemnation proceedings — Widening—Act of March 17, 1869, P. L. 12 — Practice, C. P. — Jurisdictional averments in petition.

    A petition by a railroad company in widening proceedings under the Act of March 17,1869, P. L. 12, for the approval of a bond, which averred that the board of directors of the company had adopted a resolution “to acquire additional ground for the better securing and safety of persons and property,-and to increase the facilities and capacity for the transportation of traffic upon its said road,” is defective, and is properly dismissed, where there is nothing either in the petition, the notice, or the bond to indicate that it was the purpose of the company to “ straighten, widen .... and otherwise improve the whole or portions of their lines of railroad.”
    The court is not under legal obligation to approve the bond tendered where it does not affirmatively and unequivocally appear either in the petition or in the notice, or in the bond itself, that the land is proposed to be taken for a purpose for which lands may be acquired by condemnation.
    In proceedings under the act of 1869, where the petition, notice and bond are all in proper form and contain the proper jurisdictional averments, it is the duty of the court to approve the bond and permit it to be filed for the benefit of those interested. In such a case and in that form of proceeding, the question whether the land is necessary for which the company proposes to take it, is not before the court for adjudication upon testimony outside the record. The resolution of the board of directors that the land is necessary for the specified purpose for which the company may condemn it, properly averred in the petition, is conclusive upon the court.

      Argued May 16, 1907.
    Appeal, No. 209, April T., 1907, by defendant, from order of C. P. Lawrence Co., Dec. T., 1906, No. 83, dismissing petition in condemnation proceedings in case of Thomas D. Wilson v. Pittsburg & Lake Erie Railroad Company.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition to condemn land under the Act of March 17, 1869, P. L. 12.
    The notice of filing bond was as follows:
    “ August 28, 1906.
    “ To Thomas D. Wilson :
    “ You are hereby notified that the bond of the Pittsburg & Lake Erie Railroad Company, dated August 25, 1906, for the sum of $2,000 and payable to you, in which the Union Trust Company of Pittsburg is surety, tendered to you this day, to secure the benefit of any damages you may sustain by reason of the location and construction of the Pittsburg & Lake Erie Railroad Company, through and upon your land in Big Beaver township, Lawrence county, Pennsylvania, owned or claimed to be owned by you, and not accepted by you as tendered, will be presented to the court of common pleas of Lawrence county, state of Pennsylvania, on the tenth day of September, 1906, at two o’clock in the afternoon, to be approved and filed in said court.
    “Pittsburg & Lake Erie Railroad Company.
    “ By J. C. Grooms, Land and Claim Agent.”
    The material averment of the petition was as follows:
    That your petitioner, in pursuance of its charter and by virtue of the provisions of an act of assembly entitled “An Act to enable railroad, canal and slackwater navigation companies to straighten, widen, deepen and otherwise improve their lines of railroads, canals and slackwater navigation, and the bridges, aqueducts and structures thereof,” approved March 17, 1869, has by resolution of its board of directors, duly adopted, resolved to acquire additional ground for the better securing the safety of persons and property, and to increase the facilities and capacity for the transportation of traffic upon its said road, the land so to be acquired being situate in Big Beaver township, county of Lawrence, Pennsylvania, and shown upon a plot attached to the bond presented herewith marked exhibit “ A.” ,
    October 7, 1907:
    The material recital of the bond was as follows:
    Whereas, the said Pittsburg & Lake Erie Railroad Company in pursuance of its charter of incorporation and of the act of assembly approved March 17, 1869, entitled “ An Act to enable railroad, canal and slackwater navigation companies to straighten, widen, deepen and otherwise improve their lines of railroads, canals, and slackwater navigation and the bridges, aqueducts, piers and structures thereof,” has by resolution of its board of directors, duly adopted, resolved to acquire additional ground necessary for the better securing the safety of persons and property, and to increase the facilities and capacity for the transportation of traffic upon its said road; together with the necessary slopes of cuts and fills, and any or all of the necessary, convenient or useful appurtenances thereto, as authorized in the act of assembly in such case made and provided, and has caused a survey and location to be made of the route so required for the construction and operating its railroad. Said lands to be occupied being more particularly described and shown in a plot hereto annexed or attached, and marked exhibit “ A.”
    The court entered an order refusing to permit the bond to be filed.

      Error assigned was the order of the court.

      J. Norman Martin, for appellant.

      James A. Gardner, for appellee.
   Opinion by

Rice, P. J.,

This is an appeal from an order refusing approval of a bond presented by a railroad company to secure compensation for land appropriated by the company in the exercise of the power of eminent domain, claimed to be conferred by the Act of March 17, 1869, P. L. 12. The revisory jurisdiction of this court upon such appeal is that, and that only, which the Supreme Court had upon certiorari prior to the Act of May 9, 1889, P. L. 158 : Katharine Water Co., 32 Pa. Superior Ct. 94. The petition for the approval of the bond averred that the board of directors of the company had adopted a resolution “ to acquire additional ground for the better securing the safety of persons and property, and to increase the facilities and capacity for the transportation of traffic upon its said road,” and then described the land to be acquired by reference to a plot attached to the bond. The foregoing quotation is taken from the petition, but whether it is a copy of the resolution or only a statement of the purport of it is left to surmise. Further, it is important to notice, the manner in which the safety of persons and property is to be secured and facilities and capacity for the transportation of traffic are to be increased — whether by widening, straightening, or otherwise improving the line of railroad— is not set forth; and neither the bond itself nor the notice to the landowner is any more definite in this particular. On the contrary, the phraseology of the notice is such as to create some uncertainty as to whether the land was to be taken in the location and construction of a railroad or under the provisions of the act 1869. Upon presentation of the bond the court fixed a time for hearing and directed that the “ objections ” of the landowner be filed in the meantime. He filed objections, entitling them “ exceptions,” in which he alleged, inter alia, that the company had no right to take the land, as it was not necessary for any purpose for which it was authorized to take land; that the company had abundant land at this point, its right of way from its monumented center line to the line of the the land proposed to be taken being from eighty-seven to ninety feet wide; and that the bond tendered was not sufficient in amount to cover the value of the land and the damages that would accrue to the landowner. The court filed an opinion in connection with the order refusing the prayer of the petition, in which certain reasons were set forth for its action. Of course the case is to be reviewed upon the record, and not exclusively upon the reasons given by the court for its action. But in view of one of the reasons assigned by the court, it seems appropriate to make some observations as to the matters which come before the court in Such an application.

Where it appears by the resolution of the board of directors of a railroad company invested with the power of eminent domain, that in their opinion the land is necessary for a specified purpose for which the company may condemn land, and this resolution's made part of the petition for the approval of the bond, and the adoption thereof is duly proved or admitted, and the bond tendered after due notice is in proper form and is adequate in amount and the sureties are sufficient, it is the duty of the court to approve the bond and permit it to be filed for the benefit of those interested. In such a case, and in that form of proceeding, the question whether the land is necessary for the purpose for which the company proposes to take it is not before the court for adjudication upon testimony outside the record. Hence, the refusal to approve and permit the bond to be filed, under the circumstances stated, upon the ground that the company did not produce evidence to satisfy the court that the land was necessary for the purpose specified, would be unwarranted in law and, if that be the only ground of objection, would be reversible error. ' See Katharine Water Company, supra, where this subject is more fully discussed.

But, on the other hand, whatever be the authority of the court to sanction or to overlook mere informality in a proceeding for approval of a bond in condemnation proceedings, it is quite clear that the court is not under legal obligation to approve the bond tendered where it does not affirmatively and unequivocally appear, either in the petition or in the notice or in the bond itself, that the land is proposed to be taken for a purpose for which lands may be acquired by condemnation. The act of 1869 does not confer upon railroad companies unlimited power to acquire land by condemnation whenever in the opinion of the board of directors the acquisition of such land is necessary for the accomplishment of either of the objects specified in this petition. The powers it confers are “ to straighten, widen .... and otherwise improve the whole or portions of their lines of railroad,” and, in the exercise of either of these powers, to acquire land by condemnation proceedings whenever in the opinion of the board of directors the same— that is, the widening, straightening, or otherwise improving the line of railroad — may be necessary for the better securing the safety of persons and property and increasing the facilities and capacity for the transportation of traffic thereon. Not everything that would remotely or immediately tend to the accornplishment of these latter objects can be declared an “ improvement of the line of railroad ” within the meaning of this statute. Therefore, if the land is to be taken under the clause which permits it whenever in the opinion of the board of directors it may be necessary to the improvement of its line of railroad, it is not unreasonable to require it to be set forth in the application for approval of the bond what the contemplated improvement is. At the foundation of the whole proceeding, and a condition precedent to the acquisition of land in this mode, is the determination of the board of directors of certain questions, which is ordinarily expressed by formal resolution. Whether its determination is absolutely conclusive or not, it is so far conclusive in discretionary matters that the court is justified in withholding approval of the bond until it is made to appear in some satisfactory mode, preferably by proof of the resolution itself, that the judgment of the board of directors has been formed and expressed upon the very matter which the statute submits to its determination. The omission to prove this upon the hearing is assigned by the court as one of the reasons for its action, and this, taken in connection with the indefiniteness of the petition to which we have alluded, would be sufficient to sustain it, even if no other valid reason could be assigned.

Further, while the court suggests in its opinion two reasons for the refusal to approve the bond, it is not stated that they are the only reasons. The question of the sufficiency of the amount of the bond was for adjudication upon testimony, and, for aught the record or the opinion affirmatively shows, the court may have deemed it insufficient.

But apart from this consideration, in the view we take of the other features of the case, it is unnecessary to take up time in discussing the questions whether the rule of court requiring all “ exceptions of fact .... and all papers stating facts on which the court or judge may be called on to act shall be verified by affidavit ” was applicable to objections filed under this special order, and, if it was, whether the court had power to suspend the operation of its general rule in this particular case and was justified in doing so. For if no formal objections had been filed we cannot say from an inspection of the record that the court was under legal obligation to approve the bond even though it was sufficient in amount; or, to state the proposition in another form, that the court was guilty of an abuse of its power and a disregard of its duty in withholding approval.

The order is affirmed.


author: Per Curiam,

text:
    Rockwell v. Warren County, Appellant
    (No. 1).

      Practice, C. P. — Case stated — Abstract question of law.

    The court cannot be asked to give an opinion upon a question of law except in a proceeding brought, not merely to ascertain the law, but to settle a real dispute.
    A case stated will be quashed upon appeal where the record does not show the form of action, and the case stated does not show the cause of action, and merely stipulates that the court shall enter judgment for the plaintiffs or the defendants accordingly as it shall determine a stated legal question one way or the other.
    Argued May 20, 1907.
    Appeal, No. 60, April T., 1907, by defendants, from judgment of G. P. Warren Co., Sept. T., 1906, No. 6, for plaintiffs on case stated in suit of F. IT. Rockwell & Co. v. Warren County, and E. D. Everts, Treasurer.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beater, J J.
    Appeal quashed.
    Case stated, was as follows :
    The following facts are agreed to in the nature of a special verdict for the opinion and judgment of the court thereon, to wit:
    1. The plaintiffs are the owners of the petroleum, oil and gas in and under all that certain piece or parcel of land, situate in the township of Cherry Grove, county of Warren, and state of Pennsylvania, known and designated on the map of said county as tract No. 596, containing 165 acres of land, be the same more or less; all the other estate in said land, except such petroleum, oil and gas, is owned by other parties.
    2. The following two unseated assessments have been made upon said lot No. 596 for the years 1904 and 1905 as unseated assessments, described respectively (a) and (b), to wit:

      For the Year 1904.
    No. of Tract Reputed Owner No. of Acres Valuation Remarks
    (a) 596 Vandergrift J. J. Est. 165 $495
    (b) 596 Rockwell, P. H. & Co. 165 $ 50 Oil, Gas and Mineral Right
    For the Year 1905.
    No. of Tract Reputed Owner No. of Acres Valuation Remarks
    (a) 596 Vandergrift J. J. Est. 165
    (b) 595 Rockwell, ... r,t\ P. H. & Co. 165 1 50 Oil, Gas and Mineral Right
    3. The taxes assessed for the years 1904 and 1905 upon the unseated assessments designated as (a) of said lot No. 596, described in the preceding second paragraph, have been paid to the treasurer of the county by the owner thereof. The taxes for the same years upon the unseated assessments, designated as (b) of said lot No. 596, described in the preceding second paragraph, have not been paid, and the land assessed therefor is now advertised* for sale for the second Monday of June, 1906, as required by law in the case of unseated lands, by said E. D. Everts, treasurer of the county of Warren.
    4. The said lot No. 596 is not in the occupation or possession of any person, party or corporation, but is unoccupied and unimproved land, and as such is unseated land and was such unseated land at the time of the respective assessments (a) and (b) for the years 1904 and 1905, designated in the preceding second paragraph.
    If the court be of opinion that the said tract No. 596 as unseated land must be assessed and sold as one body of land, and may not be divided into two or more unseated assessments, according to the divided ownerships in the land, so as to have the surface of the tract in one assessment, and the petroleum, oil and gas in a separate assessment, then judgment to be entered for the plaintiffs. But if the court be of opinion that there may be divided unseated assessments of the surface of said tract in one assessment, and of the petroleum, oil and gas in said tract in another unseated assessment, and the interests on such respective unseated assessments sold by the treasurer for nonpayment of taxes thereon, then judgment to be entered for the defendants.

      October 7, 1907 :
    The judgment to be entered for the plaintiffs or defendants as may be, to be with, costs, and the parties hereto reserve the right of appeal from such judgment to the appropriate appellate court or courts.

      Error assigned was in entering judgment for plaintiff.

      W. W. Wilbur, for appellants.

      D. I. Ball, for appellees.
   Per Curiam,

The legal question upon which the court was asked to give an opinion in this case is thus stated by the appellants’ counsel : “ Where there is separate ownerships of oil and gas in a tract of unseated land, can such mineral right be separately assessed for taxes ?” The question is an important one, but, as we remarked in Duquesne Borough v. Cole, 7 Pa. Superior Ct. 474, were it still more important than it is, the court could not be asked to give an opinion upon it except in a proceeding brought, noj¿ merely to ascertain the law, but to settle a real dispute. “ Courts ought to encourage amicable submissions of real disputes, but people have no right to propound abstract questions to them. For this there is not only the clearest reason, but the highest authority: ” Berks County v. Jones, 21 Pa. 413. Again, in Guardians of the Poor of Pittsburg v. Allegheny, 1 Pittsburg Reports, 97, in an opinion by Chief Justice Black, the Supreme Court said: “When a mere abstract question of law is submitted to the court, the defendant waiving every other point on which he might rest, it is a sign that the purpose is to get the advice of the judges, and this ought not to be given.” And we have held that while mere inartificiality in the drawing of a case stated is not sufficient ground to set it aside, failure to inform the court respecting the form and substance of the .judgment to be entered and to specifically agree that it shall be entered, is fatal: Forney v. Huntingdon County, 6 Pa. Superior Ct. 397 ; Morgan v. Mercer County, 8 Pa. Superior Ct. 96. In the present case it was stipulated that the court should enter judgment for the plaintiffs or the defendants accordingly as it should determine the legal question one way or the other. But what judgment was it to enter ? Upon this subject the case stated contains no express stipulation, and there is no method by which the form and nature of the judgment can be determined. The record does not show the form of action, and, what is more important, the case stated does not show the cause of action upon which the plaintiffs base their claim to recover in an action at law. Whether they claim to recover a debt due them or damages for an injury committed against them, and what is the amount of the debt or damages they are entitled to if they are entitled to recover at all, are. questions upon which the case stated furnishes no information or basis of calculation. In the same essential particulars in which the case stated in Berks County v. Jones was held to be defective this is defective. We entertain no doubt whatever as to the good faith of the parties. There is no warrant for applying the animadversions here which were applied by Chief Justice Taney in the case of Lord v. Veazie, 49 U. S. 251. But, applying the principles of the Pennsylvania cases above cited and following the practice in analogous cases (see Ford v. Buchanan, 111 Pa. 31; Hazelbaker v. Clipper Coal Co., 158 Pa. 393; Duquesne Borough v. Cole, 7 Pa. Superior Ct. 474), we are constrained to the conclusion that the case stated and all proceedings under it should be quashed and set aside.

The case stated and all proceedings under it are quashed and set aside.


text:
    Rockwell v. Warren County, Appellants
    (No. 2).

      Practice, C. P. — Case stated — Facts—Inferences.
    A case stated should contain a clear statement of the facts agreed upon which give rise to the question presented for decision, and nothing should be left to inference.
    On a case stated to determine whether oil and gas separately owned may be separately assessed for taxes, the case stated is fatally defective if it fails to state whether the land in which the oil and gas are owned is seated or unseated. A statement that the land apart from the oil and gas is assessed in the seated list, does not determine the character of the land.

      Argued May 20, 1907.
    Appeal, No. 76, April T., 1907, by
    defendants, from judgment of C. P. Warren Co., Sept. T., 1906, No. 7, for plaintiffs on case stated in suit of E. H. Rockwell & Company v. Warren County and E. D. Everts, Treasurer.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beater, JJ.
    Appeal quashed.
    The case stated was as follows :
    The following facts are agreed to in the nature of a special verdict for the opinion and judgment of the court thereon, to wit:
    1. The plaintiffs are the owners of the right to the petroleum, oil and gas in and under all that certain piece or parcel of land, situate in the township of Cherry Grove, county of Warren, and state of Pennsylvania, known and designated on the map of said county as tract No. 690, containing 165 acres of land be the same more or less ; all the other estate in said land, except such petroleum, oil and gas, is owned by other parties.
    2. The Penn Tanning Company, the owner of the estate in said lot No. 690, except the right to the petroleum, oil and gas, is assessed with said lot No. 690, for the years 1904 and 1905, as seated land upon a seated assessment.
    3. The oil, gas and mineral right in said lot 690 is assessed upon unseated assessments for the years 1904 and 1905, as follows:
    For the Year 1904.
    No. of Tract 690 Reputed Owner F. H. Rockwell & Co. No. of Acres 83 Valuation $83 Remarks Oil, Gas and Mineral Right
    For the Year 1905.
    No. of Tract 690 Reputed Owner F. H. Rockwell & Co. No. of Acres 83 Valuation Remarks Añ Oil, Gas and Mineral Right
    4. The taxes assessed as stated in the preceding third paragraph upon the oil and gas in said lot No. 690 are unpaid, and the land assessed therefor is now advertised for sale for the second Monday of June, 1906, as required by law in case of unseated lands, by E. D. Everts, the treasurer of the county of Warren.
    5. There has not been any development of the petroleum, oil or gas on said lot No. 690. No petroleum, oil or gas has yet been found or produced upon said lot, and it is not known that any petroleum, oil or gas exists, or is contained in said lot. But said mineral interest has a speculative monied value, and petroleum, oil and gas have been produced in paying quantities upon adjoining tracts, and such mineral interests in said township of Cherry Grove have been generally assessed for these 'years.
    October 7, 1907:
    If the court be of the opinion that there is no authority to assess the said separate estate of petroleum, oil or gas under the facts agreed upon, then judgment to be for the plaintiffs with costs. But if the court be of opinion that the petroleum, oil and gas right may be assessed under the facts agreed upon, then judgment to be for the defendants with costs ; reserving to the parties hereto the right to appeal from said judgment to the appropriate appellate court or courts.

      Error assigned was in entering judgment for plaintiffs on case stated.

      W. W. Wilbur, for appellants.

      D. J. Ball, for appellees.
   Per Curiam,

A case stated should contain a clear statement of the facts agreed upon which give rise to the question presented for decision, and nothing should be left to inference: Schuylkill County v. Shoener, 205 Pa. 592, and cases therein cited. In addition to the objections to the case stated which are referred to in the preceding case between the same parties and apply as well in this case, there is the objection that it does not appear whether the land in which the oil and gas are owned by the plaintiffs is seated or unseated. The only information the case stated gives upon the subject is that the land apart from the oil and gas is assessed in the seated list, but that fact does not determine the character of the land. For a further statement of our reasons for the order about to be made, we refer to the preceding case.

The case stated and all proceedings under it are quashed and set aside.


author: Henderson, J.,

text:
    Ripley, Appellant, v. Ripley.

      Mortgage — Bond—Deed—Second mortgage — Parent and child.

    Where a father and mother convey a farm to their son in consideration of “his paying all our just debts, our care and support during life, and our proper burial expenses,” and the son executes to the grantors a bond and mortgage for a sum stated to secure the performance of the covenants in the' deed, a second mortgage creditor of the same land under a mortgage created by the son, who has knowledge of the first mortgage and the bond accompanying it, has no standing to aver, after the son has paid the father’s debts and funeral expenses, but has violated the covenant to support his mother, that the first mortgage had been paid and satisfied, because the aggregate of the payments made by the son was equal to or in excess of the amount of the first mortgage.
    In such a ease where it appears that the second mortgage was to secure a loan of money to provide for the payment of the father’s debts, any understanding between the son and the second mortgagee as to the use to be made of the money borrowed by the former from the latter, or any interpretation by them of the contract between the son and his father, will have no effect on the rights of the mother under the first, mortgage.
    Argued May 20, 1907.
    Appeal, No. 45, April T., 1907, by plaintiffs, from decree of C. P. Erie Co., Nov. T., 1905, No. 2, dismissing bill in equit}r in case of John Ripley, Guardian of Alma Highmyer and Ira Highmyer, Minor Children of Mary Hood, formerly Mary Highmyer, deceased, v. Mary Ann Ripley and Isaac F. Ripley.
    Before Rice, P. J., Pobteb, Hendebson, Oblady, Head and Beaveb, JJ.
    Affirmed.
    Bill in equity to caucel a bond and mortgage. Before Walling, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the decree of the court.

      Henry C. Yard, with him Albert B. Osborne and James W. Sproul, for appellants.
    It is a well-established principle of law that, while the prior mortgage creditor has a first lien upon the land, and is favored in some respects over subsequent lien creditors, yet the law is very careful to protect the rights of the subsequent lien creditor, and especially so as to any action by, or with the consent of, the prior lien creditor: Loverin v. Humboldt Safe Deposit, etc., Co., 113 Pa. 6; Mitchell v. Coombs, 96 Pa. 430; Meigs v. Bunting, 141 Pa. 233.
    October 7, 1907:
    If the court below is correct, that the bond and mortgage are “ practically ,one instrument,” then, under the authorities and the evidence in the case, both should have been ordered canceled and satisfied: Neale v. Dempster, 179 Pa. 569; Neale v. Dempster, 184 Pa. 482; Water & Gas Co. v. Jenkyn, 20 Pa. C. C. Rep. 102; Mitchell v. Coombs, 96 Pa. 430.

      J£. L. WMttelsey, for appellees.
    — The mortgage was given to secure the performance of the conditions of the bond, and the two papers are to be treated as if they were parts of one instrument, and are to be considered together, for the purpose of determining the meaning of the parties: Cummings v. Antes, 19 Pa. 287; Kennedy v. Ross, 25 Pa. 256.
    If the two clauses in this mortgage are so totally repugnant to each other that they cannot stand together, the condition in relation to the support and maintenance being the first, must be enforced, and the latter rejected: 2 Blackstone’s Com., 381; Straus v. Wanamaker, 175 Pa. 213.
   Opinion by

Henderson, J.,

David Ripley was the owner of a farm in Erie county. On March 6, 1899, he and his wife, Mary Ann, conveyed the farm to their son, Isaac F. Ripley. The consideration given by the grantee for the land is stated in the deed to be “ his paying all our just debts, our care and support during life, and our proper burial expenses.” At the same time Isaac F. Ripley executed and delivered his bond to the grantors in the penal sum of $3,000 conditioned “ that if the party of the first part pays all just debts, that may stand charged against them, or either of them, at the signing of this bond, and take good and proper care, that is, to supply them with good furnished rooms, food and raiment, care in sickness, and burial expenses, the care is to extend during their natural life, and is to be furnished them on the estate they conveyed to him (unless otherwise agreed to by both parties). When the party of the first part has complied with these conditions, and completed the contract in full, then this bond and mortgage shall be deemed fully paid, and all considerations in the deeds of conveyance of real estate deed, bearing date with this bond, shall be discharged in full, without any fraud or further delay; then this obligation to be void of none effect, otherwise to be and remain in full force and virtue.” To secure the performance of the conditions of this bond the grantors took from the grantee a mortgage for $1,500 on the land conveyed, dated March 6, 1899, in -which the conditions of the bond were recited. The mortgage was recorded March 8,1899. The consideration stated in the mortgage was “ the said debt or sum of $1,500, owing to the said parties of the second part as aforesaid, and for the better securing of the payment thereof, with interest thereon, according- to the conditions of the said bond.” The mortgage also contained the proviso that if first party should pay to second parties the sum of $1,500 and interest, “ according to the condition of the above in part recited bond or obligation, then, and from thenceforth, these presents, and every matter and thing therein contained shall cease and be utterly null and void.” At the time when these documents were executed David Ripley was indebted to the amount of more than $1,000 and these debts were afterwards paid by Isaac F. Ripley. He borrowed $1,000 from Mary Highmyer and gave a mortgage therefor August 1, 1899, on the land conveyed to him by his father which became a second lien on the land. This money was used by Isaac in the payment of debts which his father owed and which he had obligated himself to pay. He also paid his father’s funeral expenses. Some time during the year 1908 Isaac left the farm and ceased to support or care for his mother. In 1905 a scire facias was issued on the Highmyer mortgage and while the writ was pending an amicable scire facias was issued on the first mortgage on which Isaac F. Ripley confessed judgment in favor of Mary Ann Ripley for $1,260, which included a collection fee of five per cent. Thereupon the plaintiff instituted this proceeding praying for a decree canceling the first mortgage and striking from the record the judgment entered on the amicable scire facias. There was evidence that at the time Isaac F. Ripley borrowed the money from Mary Highmyer he agreed that all payments of his parents’ debts were to be credited on the mortgage in their favor and that judgment should not be entered on the accompanying bond. It was conceded in the plaintiff’s bill that Isaac F. Ripley had made default in his contract to support and care for his mother and the court found upon sufficient evidence that, considering the age, state of health and expectancy of life of Mary Ann Ripley, she sustained damages to an amount greater than $1,260 because of the failure of Isaac F. Ripley to support and maintain her. The appellant contends that the mortgage of Mary Ann Ripley was security for the payment of $1,500 only and that when the mortgagor had paid in debts of his father and mother and the funeral expenses of his father the amount of $1,500 his undertaking was performed, but this view of the instrument does not take full account of the object for which it was executed, nor give force to all of its material parts. It was intended to be, and is, a continuing security for the performance of the acts which the mortgagor agreed to perform. The mortgagees parted with their land for a consideration agreed upon. Whether that was greater than the value of the land is a matter with which we are not concerned. They had a right to name the price for their property. Isaac F. Ripley had an equal right to agree to pay what they demanded. A subsequent mortgage creditor of Isaac has no standing to complain that the latter agreed to pay more than the land was worth. The mortgage to David and Mary Ann Ripley was not given merely to secure the payment of David’s debts. The court found that at the time of the conveyance the land was worth $2,200. The indebtedness was much less and there is no reason to suppose that it was the understanding of the parties that if Isaac paid $1,500 of indebtedness he was to be relieved from the other obligation to support and care for his parents and to bury them after they were dead. ' The mortgage was security to the mortgagees for the performance of all of the obligations assumed by the mox'tgagor. The security was not diminished by one-half when the mortgagor performed one-half of his agreements. The payment of the debts left a most material part of the contract unperformed, and the mortgage stood as security for the fulfilment of that part. The conditions of the bond are specifically referred to in the mortgage, and payment of the mortgage is called for according to the conditions of the bond. The intention of the parties is unmistakable when the bond and mortgage are read together as they should be: Kennedy v. Ross, 25 Pa. 256. If it be conceded that the mortgagor’s liability is limited to $1,500, this only fixes the amount of the damages to which the mortgagees are entitled in case of the failure of performance by the mortgagor. Under the circumstances most favorable for himself he could only say that he was not liable for more than $1,500 for the breach of his contract.

Any understanding between Isaac F. Ripley and Mary Highmyer as to the use to be made of the money borrowed by the former from the latter or any interpretation by them of the contract between Isaac F. Ripley and his father and mother would have no effect on the first mortgage. Mary Ann Ripley was not a party to any arrangement or agreement by which the grip of her mortgage on the land was relaxed. If the holder of the second lien is at a disadvantage it is because Isaac F. Ripley had too large an incumbrance on his property at the time he gave the second mortgage. But Mary Ann Ripley is not responsible for that. The second mortgage creditor knew of the existence of the first mortgage and the accompanying bond and the terms of the contract under which they were given and must abide by the legal consequences of the situation. The conclusions of the learned trial judge are justified by the record as presented.

The decree is affirmed.