text:
    No. 13,937.
    State of Louisiana ex rel. F. R. Martin vs. State Board of Pharmacy
    Syllabus.
    The establishment by the Board of Pharmacists of a domicile in the city of New Orleans was a competent exercise of implied power, necessary to the enjoyment of the powers expressly conferred upon said Board by Act No. 66 of 1888, and to the accomplishment of the object for which said Board was created ; and this proceeding, brought in the District Court for the parish of Acadia, and based upon citation served upon the president of defendant Board in the parish of Iberville, was properly dismissed for want of jurisdiction ratlcvc personae.

    APPEAL from the Eighteenth Judicial District, Parish of Acadia De Baillon, J.

      Btory & Pugh, for Relator, Appellant.

      Walter Guión, Attorney General, (Henry L. Garland, Jr., of counsel) for Respondent, Appellee.
   The opinion of the court was delivered by

Monroe, J.

The relator filed this suit in the Parish of Acadia, praying that the Board named as defendant be commanded by mandamus to register him as pharmacist, and to issue a certificate to that effect. The petition was served on L. P. Vaillon, the president of the Board, in the parish of Iberville, by the deputy of the sheriff of that parish. Thereafter, the Board filed a plea to jurisdiction, as follows, to-wit:

“ That this defendant is domiciled in the parish of Orleans, under “ and by virtue of a resolution of this Board, adopted October 17, 1888. “* * * Further excepting, defendant says that if said resolution “ was illegal, which is denied, then, this Board, being a public corpora- “ tion, created by act No. 66, of 1888, and exercising important legal “ and governmental functions, is a branch of the State government and “ legally domiciled at the capital of the State,” etc.

The evidence shows that the president of the Board resides in Iberville, three of the members in Natchitoches, Baton Rouge and St. Martin, respectively, and the other five members (including the secretary and treasurer) in the parish of Orleans. It also shows that, at the first meeting of the Board, October 17, 1888, the following resolution was adopted, to-wit:

“ That five members shall constitute a quorum, and that the official “ domicile of this Board shall be in the city of New Orleans.”

Upon this evidence, the case was submitted, and there was judgment, maintaining the plea to jurisdiction, and dismissing the suit, and the relator has appealed.

The defendant Board was created under the authority of Act No. 66, of 1888, which authorizes the Governor to “appoint the Board of Pharmacy, consisting of nine reputable, practicing pharmacists, doing business in the State,” etc. The term of office of the members and the manner of filling vacancies is fixed by the act. Provision is also made by the act for the election of a president and of “an officer to be known “ as the secretary and treasurer,” and the Board is vested with authority to register persons properly qualified as pharmacists, and to issue-its certificates to the persons so registered. And it is made unlawful for any person not so registered to conduct the business of pharmacist in this State. The act provides that the Board “shall have the right “to refuse registration, subject to the right of the applicant to appeal “ to the courts, by mandamus,” but it does not specify the courts to which such application is to be made, nor does it fix, or refer to, the domicile of the Board; and, from these last mentioned circumstances, the counsel for the relator argue that the Board is without authority 1 o establish a domicile for itself, and hence, inasmuch as its jurisdiction extends throughout the State, that it can be sued in any court in the State in which it may suit the convenience of the person 'having a claim against it to bring his action. In support of this view, the learned counsel call your attention to the statutes creating the various levee boards, which either fix their domiciles, or, in terms, authorize such boards to do so; and they refer to the cases of State ex rel. Police Jury vs. Judge, 40 Ann. 118, and State ex rel. Police Jury vs. Parish, 41 Ann. 403, in which it was held that a police jury is amenable to the jurisdiction of the courts in the different wards of the parishes over which their authority extends; and, finally, they suggest, “that, if the domicile of “ the defendant board could be fixed by. its own resolution, for the pur- “ poses of spits against it, great hardship would result to suitors by its “ dereliction of duty and arbitrary ruling and conduct.”

Considering these propositions in inverse order; we are unable to discover in what respect the situation of a person having a claim against the defendant Board would be .worse, should it be held that the latter has the right tó fix its own domicile, than is that of the average individul, having a claim against any other person, natural or artificial. The rule is that a defendant is to be sued at his domicile, and not at the domicile of the plaintiff, and the illustrations of which the counsel make use, i. e., the cases of the levee boards, which are vested by specific provision of law with the authority to select their own domiciles, whatever may be their value elsewhere, do not sustain the particular view which we are here considering.

As to the cases of the Police Juries, it would seem to be enough to say, that, if an incorporated parish should succeed in confining itself within the limits of one of its own wards, to the exclusion of the others, or should so regulate its existence that it could not be found in any of its wards, the different departments of the State government would be Called upon to deal with a problem with which we are not now confronted. The defendant in this case is not an incorporated subdivision of the State, seeking to escape from itself, but is a body corporate established under a law of the State and vested with jurisdiction of a particular subject matter, and which, as a necessity to the proper exercise of its functions, and in conformity to the public policy of the State, as declared in its general legislation, has established a domicile within the State at which it can be found.

Without undertaking, at this time, to differentiate eases involving the exercise of powers which impose burdens on the public, or which' are in derogation of common right, it may be said that, in addition to the powers expressly conferred upon them, all corporations, whether public or private, with equal right, exercise such implied powers as may be necessary to enable them to exercise the powers expressly conferred, and to accomplish the objects for which they are created.

The question, then, is, was it necessary, in order that the defendant should exercise the powers expressly conferred upon it, and should accomplish the object for which it was created that it should exercise the power, not expressly conferred, of establishing a domicile? The power is expressly conferred upon the defendant to examine into the qualifications of persons desiring to practice the profession of pharmacy in this State, and to issue certificates by virtue of which those who are found to possess the necessary 'qualifications may lawfully practice that profession; and the object to be accomplished is the protection of the lives and the health of the people of the State against ignorant, incompetent, and disreputable persons, in the matter of the. preparation and sale of drugs and medicines. The law provides thafeach applicant shall pay to the Board five dollars for his examination and thr'ee dollars for his certificate. ' The proposition of the relator is, that the domicile of the Board is at every place and at any place in the State where it may suit the convenience of the applicant to fix it; from which it would follow that the Board would be equally bound to furnish a quorum of its members, for the examination of an applicant, at his residence, in the swamps of East Carroll, or upon the plains of Calcasieu, as in the parish of Acadia or in any city, town, or hamlet in the State. But !t is plain that this could not be done, at the price fixed in the act, from which it is reasonable to infer that the Legislature did not intend that it should be done. Aside from which, the general policy of the law may be said to find expression in section 940 of the Revised Statutes, which declares that, “Every corporation organized, or which may hereafter be “ organized, under and by virtue of any law of this State, shall estab- “ lish its domicile at some place within the State of Louisiana and not “ elsewhere.”

Our conclusion is that the establishment by the defendant of a domicile in the city of New Orleans was the competent exercise of an implied power derived from the act by which said defendant was created, and that the District Court for the parish of Acadia properly declined jurisdiction of this suit.

Judgment affirmed.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,675.
    Nelson LeBlanc et al. vs. Albert Lemaire et als.
    Syllabus.
    This case presents the question whether church property, part of which is a church site with buildings, another part a burial ground, owned as per deed of record by the “Pleasant Green Baptist Church,” an unincorporated religious society, is subject to partition at the instance of a minority of the congregation, among those who, at this time, claim membership in the church.

      Held — A minority of the congregation, under the case as presented, have no right to break up the church by forcing the sale of its property for purpose of partition on the plea of being owners in indivisión. While they may have certain property rights in the church holdings, they are not considered such owners in indivisión as give them a standing in court to provoke, against the will of the majority, a -partition of that which, by common understanding, intended to remain intact for the purpose of religious worship.
    APPEAL from the Seventeenth Judicial District, Parish of Vermilion — JDeBaiUon, J.

      S. P. Watts and W. B. White, for Plaintiffs, Appellants.

      Gus A. Bieaux, for Defendant, Appellee.
   The opinion of the court was delivered by

Blanchard, J.

This ease presents the question whether church property, to-wit: — three lots of ground in the town of Abbeville, Louisiana, on one of which lots is a church building, on another a small building formerly used for church services, and the third in use as a place of burial for the dead, all of the aggregate value of $2,050, is subject to partition at the instance of a minority, among those who, at this time, claim membership in the church.

The church in question is known as the Pleasant Green Baptist Church of Abbeville. It is an unincorporated religious society, but has maintained its informal organization and its church for many years.

The rolls of the church showed in 1898 a membership of about two hundred persons.

In 1897 or 1898 trouble developed over the pastor. A portion of the membership desired to retain the then incumbent; another portion opposed him and wanted a change.

The result was great discord and dissension and the formation of rival and hostile factions.

This continued until finally the pastor seems to have been forced out —at least he withdrew, and, with a portion of the membership still adhering to him, is conducting religious services' in another place in the neighborhood.

IMeanwhile, the remaining portion of the congregation, constituting, it seems, the large majority, chose another pastor and with him are in possession of the church and other property and claim to be the Pleasant Green Baptist Church of Abbeville.

This majority portion of the congregation is, it seems, holding regularly religious meetings and services in the church and is engaged in other work usual to organizations of the kind.

That portion of the congregation which formed the faction that supported the former pástor instituted the present suit. They are in number, as we count the names in the petition, about fifty' — or about one-fourth of the total membership as disclosed by the roll made up in 1898.

They sue the remaining members of the congregation — that portion (the majority) in possession of the church and who recognize the spiritual authority of the new pastor.

They (the plaintiffs) claim to be members of the Pleasant Green Baptist Church, and as such to be common owners, with the other members of that organization, in the church property. As owners in common they demand a partition of the property.

Their prayer is that the three church lots, with the improvements thereon, be sold for cash for the purpose of partition, that the debts of the society be first paid out of the proceeds, and that “the residue be distributed among all the members of the church, share and share alike.”

Those members made parties defendant answered, in substance, that the property sought to be made the subject of partition stands on the record as the property of the Pleasant Green Baptist Church, and that plaintiffs have no such interest therein as entitles them to demand its partition.

Their position is- that the property belongs to the church organization, that it was acquired and must be maintained for church purposes, that its partition would work its destruction for such purpose, and that membership in the church was not intended to carry and did not carry with it ownership in fee in any member or minority of members entitling him or them to force its partition as owner or owners in common.

There was judgment in the court a qua rejecting the demand of the plaintiffs and they appeal.

Ruling — We find that the lots in question were acquired for this church years ago — one of them as early as 1871.

The price paid for same was small, less than one hundred dollars for all the lots, and was settled out of the common church funds, with, perhaps, some assistance from certain members.

We gather from the record that the title was taken, as to one of the lots, directly in the name of the Pleasant Green Baptist Church at the time of its acquisition in 1871. As to the other two lots the title was first taken in the name of Woodson Mitchell, the pastor at the time, who acted for and on behalf of the church in making the purchase. Eor about fourteen years the title remained in his name, when in 1891 he made formal conveyance of the same to “the Pleasant Green Baptist Church.”

The act recites that in this purchase from Mitchell the church is represented by its trustees, eight in number, who are named — “to have and to hold the above described property unto the said Pleasant Green Baptist Church forever, from and after the date hereof.”

The Pleasant Green Baptist Church is not an incorporated body. It has no legal existence as a corporation. It is, though, a religious society. It has organization and a church government.

Our law speaks of unauthorized corporations and private societies and refers to them as capable of acquiring and possessing estates and having common interests. C. C. 446.

Erom this, it would seem that such a society as the one we are dealing with possesses at least a limited legal status.

It was organized for a purpose not only not illegal but commendable. To effectuate this purpose it has the right to use and enjoy the lots of ground in question, to erect and maintain a church thereon. This use of property is essential to its organization and being so it would seem that this church congregation, as such, may lawfully be the beneficiary or holder of the lots.

The acquisition of the lots was by specific devise to a particular socifety for a purpose named and we find this purpose being now executed.

The present membership in control of the church, being a large ma.jority, represent the succession of the original congregation and constitute the Pleasant Green Baptist Church of Abbeville.

A minority of the congregation, under the case as presented, have no right to break up the church by forcing the sale of its property for purpose of partition on the plea of being owners in indivisión. While they may, perhaps, have certain property rights in the church holdings, they are not considered such owners in indivisión as give.them a standing in court to provoke, against the will of the majority, a partition of that which, by common understanding, was intended to remain intact for the purpose of religious worship.

We regard this controversy as presenting merely the ease of a small minority of a church congregation seceding from the majority (not on doctrinal grounds or questions of religious faith or worship, but on differences of church government), refusing to acquiesce in the will of the majority, and taking steps to force the sale of the church property —ra course likely to lead to the breaking up of the church organization itself.

. The rule that the will of the majority must prevail applies as'well to religious as to secular societies, so long as the former conform to the faith and to the forms of worship of the church to which they pertain. This is so unless the church government or articles of agreement otherwise provide.

Here, there being nothing to the contrary shown, the minority of the congregation, who are plaintiffs herein, when they became members of the church bound themselves to be governed by the voice of the majovity in the matter of church government and the control and administration of the church property.

They cannot now be permitted to gainsay this and to force the sale of the church edifice and other property against the will of the majority.

If this minority of (say) one-fourth of the membership of the Pleas - ant Green Baptist Church could do this, one member — a minority of one out of the total membership of two hundred- — could do it.

This would practically put every unincorporated church or religious society in the State, owning or holding property, at the mercy of any one recalcitrant member.

It appears from the evidence that'the minority of this church congregation are not deprived by the majority of any right held in common by all the members.

The seceding members are at liberty to return and occupy their places in the church and enjoy all their rights of membership therein.

This congregation (both factions thereof) should come together and legally incorporate their church, and when this is done the trustees should make formal conveyance of the church property to the corporation.

The church debts, including that due the deposed pastor, should be paid by the society thus legally incorporated, and the congregation should endeavor otherwise and in all things to attain to and live in that state of harmony, good-will and brotherly love inculcated by the precepts of the Divine Master whose disciples they profess to be.

Judgment affirmed.

Rehearing refused.

Monroe, J., dissents.