[The State, ex rel McNeill v. Bibb Street Church.]

question between private persons. If the individual church owns its property, then it appears there is no endowment of, or stipend, or legal temporal right attached to the pastorate of respondent church. If there be no stipend or endowment or legal temporal right attached to such pastorate, the peremptory writ applied for in this cause must be denied. The case cited above in 1 Houston (Del.) Reports, p. 123, seems conclusive on this point. The opinions of the chancellor and two of the justices collect and refer to all the leading authorities, and strengthen them by their conclusion therein. The Disciplines attached to, and made part of relator's petition, must govern and overrule relator's averments as to what is the law of the church, wherever they come in conflict. 8th. If the court should hold that relator has shown that the respondent church has refused to conform to, and has violated the provisions of, the constitution and Discipline of the M. P. Church, then relator's remedy is not in the civil courts, but in the trial of the church under the provisions therefor in the Discipline. See Discip. of 1886, p. 59; title Trial of Churches. This remedy under the church law, is complete, exhaustive, and exclusive. It is not a permissive remedy, but it is made mandatory on relator to pursue it. It is made the pastor's duty to try the respondent church before the tribunal therein provided. The Discipline provides for a court of five persons with a presiding judge, a secretary or clerk of the court, who shall keep the minutes of the proceedings; the accused is given the right of challenge, five (5) in number, to the court of five; a copy of the charges, an indictment, must be furnished the accused twenty (20) days before the day of trial; if found guilty, the punishment of expulsion is declared; and the defendant is given the right of appeal. See Discip. 1886, pp. 59 and 60. The complete machinery of a court is here set out. What court so competent to decide in a matter involving a violation of church or ecclesiastical law? A means is thereby provided to keep churches and ministers from the scandal of trials and litigation in the courts of law. And relator, when he connected himself with the Methodist Protestant Church, and became a minister therein, undertook and promised to be governed by its laws, and in case such a controversy, as set out in his petition, arose, that he would bring the respondent church to trial, not before the civil courts, but before the ecclesiastical tribunal provided for by the laws of the church. Non constat, if the respondent were summoned before this

Ap

[The State, ex rel. McNeill v. Bibb Street Church.] ecclesiatical court, the respondent would be found guilty of any violation of church law. It is well settled that the civil courts will not interfere in ecclesiastical disputes, where there is a remedy under the church laws.-German Reform Church v. Sibert, 3 Penn. 291; High on Ex. Leg. Rem. § 298 (latter part); Angell & Ames on Corp. $$704, 684, (11th Ed.) 9th. Under the fundamental law and spirit of the Methodist Protestant Church, the pastor appointed by an Annual Conference to any local or individual church can not force himself upon such church contrary to the wishes of such church, or a majority of its members. In support of this proposition we cite the provision for Trial of Churches, Discip. of 1886, 59, 60. If the church is found guilty of disobedience, it is expelled-the pastor is not forced on the church, he is not ordered to take charge of the building and preach. The idea of compelling an individual or local church into obedience does not seem to be entertained. pellees maintain that the only reasonable interpretation of the clauses authorizing the annual conference to appoint ministers, see Discipline of 1886, 22, sections 3 and 4, is that the appointment or stationing of such ministers is to be made subject to the approval or consent of the stations or churches, as well as subject to the minister's right of appeal. This is implied or understood. It was not apprehended that the wishes of the church, as represented by its lay delegate to the Annual Conference, would be disregarded. This view of the case is strengthened and confirmed in the light of the history of the separation, or expulsion, of many members of the Methodist Episcopal Church, who formed and organized the Methodist Protestant Church, or "Associated Methodist Churches," as the church was originally called when organized in 1828-30. This movement, separation, and organization is a matter of history and consequently a matter of which the court will take judicial notice. What the Federalist is to the Constitution of the United States, that is Williams' History of the M. P. Church to the Constitution and Discipline of the Methodist Protestant Church. The authors of the Federalist papers were members of the Constitutional Convention in Philadelphia which framed the Constitution of the United States. The author of Williams' History of the M. P. Church was one of those expelled from the Methodist Episcopal Church, was a member of the convention which met in Baltimore, Md., and formed the Constitution and Laws of the Methodist Protestant Church. He was a

[The State, ex rel. McNeill v. Bibb Street Church.]

part of that of which he has written. The closing chapter of his history, pages 364 to 391, chap. XXI, titled "Remarks on the Constitution," appellees cite as maintaining their view, or construction of the laws of the church and giving the right to a church to reject a minister to whom its members are averse, and who says in his sworn petition in this cause that he held a known unwillingness to serve as their pastor. Pages 297-8, and 322-3, and 284 of said history are also cited. The diametric positions of the Methodist Episcopal Church and the Methodist Protestant Church as to the respective rights of the ministry and laity are well set out in the chapter cited, and also in the pamphlet titled "The Contrast," which sets out the ecclesiastical polity of the two churches and which was written by an eminent minister and authority in the M. P. Church. On pages 21 and 22 and page 25 of this pamphlet, the precise question here argued is presented and answered in favor of appellee's contention. 10th. The court has the power, in its discretion, to refuse to issue the peremptory writ. This discretion is understood to be a legal discretion, and not to be exercised on light or trivial grounds against relator. If it appear that relator can pursue, or could have pursued, other remedies, the discretion is then merged into a legal duty to refuse the writ. So, when the real nature of relator's application is considered and understood, and the remedies he could have resorted to are made known, this cause then presents itself as of the very strongest character for the exercise of judicial discretion in denying the application. It appears from the petition and writ, that the respondent church is opposed to receiving relator as their pastor; in fact have refused him admittance into the pulpit and parsonage. The bringing of the suit shows and admits this. Relator avers in his sworn petition that he had and entertained a known unwillingness to serve as pastor of the respondent. He had three remedies and still has two remedies under the church law open to him. It can not be made to appear that he stands in the attitude of a martyr undergoing oppression and outrage, or of a soldier fearlessly facing his duty and determined to discharge it. 1st. He had the right of appeal to the conference from his appointment to this church or station.-Discipline of 1886, Art. VII, sec. 4, subd. 2, p. 22. 2d. The president of the Annual Conference may change him from this to another station upon the consent of relator and the station.-Discipline of 1886, Art. XI, sec. 2, p. 28. 3d. He may cause

[The State, ex rel. McNeill v. Bibb Street Church.]

the respondent church to be tried before the church court provided for in the Discipline.-Ib. pp. 59, 60. The relator, if deprived of any legal right, has a remedy both in courts of law and equity. If he has the right to possession of the church property, the building and parsonage, he can bring suit at law for such possession. If he is unjustly deprived of his salary, he can bring suit against the church stewards. If the officers of the church are illegally refusing to discharge the duties entrusted to them, relator can file a bill in equity for the enforcement of their trusts, and obtain a decree requiring them to discharge such duties in accordance with the law of the church. A mandatory injunction addressed to the proper parties would give relator full and adequate relief. If these civil remedies are not sufficient to deprive the court of jurisdiction to award the writ of mandamus, yet their existence "may and should influence the court in the exercise of its discretion in the particular case." High on Ex. Leg. Rem., S$ 20, 14, 9, 15.

CLOPTON, J.-Appellant applied to the City Court of Montgomery for a mandamus to compel the "Bibb Street Church" to rescind a resolution refusing to receive relator, as their minister or pastor, and to restore him to his office of such minister or pastor with all his rights and emoluments, and to compel the church and trustees to place him in charge of the church edifice and parsonage. The City Court dismissed the petition of relator, and from the judgment this appeal is taken.

The power of the civil courts to restore by mandamus a party, who has been wrongfully removed from an ecclesiastical or spiritual office, is well established, when the temporal rights, stipends, or emoluments are connected with, or annexed to, such office, which belong to the incumbent. In Rex v. Blooer, 2 Burr., 1043, the leading case, the exercise of the power was based on the ground that there was a temporal right. It is said: "A mandamus to restore, is the true specific remedy where a person is wrongfully dispossessed of any office or function which draws after it temporal rights, in all cases where the established course of law has not provided a specific remedy by another form of proceeding; which is the case with regard to rectories and vicarages." But, the courts are powerless to interfere where there are no fixed emoluments, stipends or temporal rights connected with the office; where it is purely ecclesiastical. The

The State, ex rel. McNeill v. Bibb Street Church.]

foundation of the power to grant writs of mandamus is, a clear, specific legal right, and the want of an adequate legal remedy to enforce it. The absence of such right is fatal to any application for the writ. Under our form and theory of government every ecclesiastical system rests on the voluntary principle, and the support and maintenance of churches depend on voluntary contributions. No ecclesiastical organization in this country possesses legal capacity, unless incorporated, or unless it is acquired by a conveyance of property in trust for the use and benefit of the church. The fourth section of the declaration of rights provides: "That no one shall be compelled by law to attend any place of worship, nor to pay any tithes, taxes or other rate, for building or repairing any place of worship, or for maintaining any minister or ministry." In the absence of a valid legal contract, the courts are prohibited to compel the payment of a minister's salary, or contributions for the support of the ministry or the church. In accordance with the principles of our institutions, and the organic law, the courts refrain from interfering when the office or functions are purely ecclesiastical or spiritual, disconnected from any fixed emoluments, salary, or other temporalities. In such case, there is no legal temporal right, of which the civil courts can take jurisdiction. Union Church v. Sanders, 1 Houston (Del.) 100.

The "Bibb Street Church" is a member of a larger and more important ecclesiastical organization, known as the "Methodist Protestant Church," consisting of quarterly, annual and general conferences, to the government of which it is subject, by the discipline of the church. Assuming the truth of the averments of the petition, the relator was duly appointed to the church, a station in Montgomery, by the duly constituted authorities. His office is purely ecclesiastical or spiritual, and unless there are temporalities connected with the church which belong to the pastor in respect of his functions, the application for a mandamus must be denied. The petition alleges that there is considerable real property connected with the station at Montgomery, including the church edifice, parsonage and other realty, which is held by trustees for the use and benefit of the Methodist Protestant Church, and which was conveyed in 1841 to trustees and their successors; that the trustees mentioned in the conveyance erected on the realty a church edifice for the preaching of the gospel in conformity to the rules and discipline of the Methodist Protestant Church, and a parsonage