Brosius v. Reuter

1 H. & J. 551

Opinion

Chase, Ch. J.

Footnotes

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(a). In the return to a mandamus the facts, which are requisite to justify a refusal to restore, must be stated with precision and certainty. A defective and incomplete statement of facts cannot be aided or supplied by intendment or inference. All the authorities supporf the position, that the same certainty is required in a return to a mandamus as is necessary in declarations and pleadings. The facts exhibited in the return must appear to the court to be a complete justification for refusing to restore, or the court will order a peremptory mandamus; and certainly there cannot be any thing better established than that necessary facts not stated are not inferrable or to be intended from facts which are set forth. The facts set forth in the return are supposed to be true, and are not traversable; and the court must decide, whether they are a sufficient and legal cause to justify the refusal to 'restore, Should the statement of facts in the return be false, the remedy is by action against the persons who make the return, and to whom the. mandamus was directed.

These principles being recognized will lead the court to a right decision in this case.

The court are of opinion, that the return of Cæsarius Reuter, &c. &c. to the writ of mandamus in this case, is insufficient and defective in law, in not shewing and setting forth, with precision and certainty, the rules, laws and canons, of the Catholic Church, which render the appointment of Francis X Brosius, minister of “ The Saint John’s German Catholic Church of Baltimore,” by the Right Reverend John Carroll? Bishop of Baltimore, unlawful, without the previous approbation of the majority of the members of the congregation of the said church»

In not setting forth the fundamental laws, usages and canons, of the said German Catholic Church, which vest the right and power of nominating and appointing the pastor of the said church exclusively in the members thereof who did found and build the same, and do contribute to the support of the .said church and pastor thereof.

In not setting forth Cue rules and canons of the said riiurch whirh make the assent and approbation of the. congregation of t,he said church, or a majority of them, necessary to validate the appointment of the pastor by the said bishop.

In not setting forth any rules or canons of the said Catholic Church, whereby “The Saint John’s German Catholic Church of Baltimore” is placed under the superintendence and control of the society called “The Minorits Conventuals of the Order of Saint Francis,” in exclusion or derogation of the authority of the. Pope, and of the said John Carroll., Bishop of Baltimore.

And thereupon the Court quash the said return, and order a peremptory mandamus to issue to the Reverend Cæsarius Reuter, &c. &c. to restore, &c.

RETURN QJJASHED, &C.

Done, J. absent. Sprigg, J. concurred.