Martin, J.
The plaintiffs are appellants from a judgment by which the defendant has recovered, in reconvention, the sum of $6734 76, for his services as curate of the parish of Pointe Coupée, and for certain expenditures made by him for the church. By a resolution of the church-wardens of the 1st of July, 1834, a yearly salary of $1000 was allowed to the defendant for his services, with a stipulation that he should not receive any part of the sums paid for burials and funeral services, and that he should attend the church on the Mississippi, and that on False River, saying mass two Sundays, at least, in each month, at the latter. A misunderstanding having taken place between the wardens and the defendant, the former, on the 2d of December, 1835, rescinded the resolution of the preceding year, resolving, however, that the salary should continue to be paid until the last day of that month. This resolution being communicated to the defendant about the 16th of January following, he replied that he had expected it, and would depart as soon as he should be paid what was due to him. Afterwards, the defendant received the sums paid for certain burials and funeral services. He declared that for the services, arrangements must be made with him, as he had no longer anything to do with the wardens. A witness, who acted as sexton and chorister during six years, deposes, that the defendant went during this time on occasional journeys to Avoyelles, where there was no curate, and also to Bayou Sara. The testimony clearly shows, that after the defendant was notified that the salary theretofore allowed him would no longer be paid, he considered himself absolutely independent of the wardens ; and, indeed, acted in open opposition to them, while they viewed him as having ceased to have any claim on them.
On these facts it has been contended, on the part of the appellee, and his counsel has endeavored to establish, by the testimony of the bishop of the diocese, and the theologal of the cathedral, [67] that the defendant, having been appointed by the bishop, curate of the parish, could not, consistently with his duty, consent to the dissolution of the relation in which he stood to the churchwardens of the parish, until authorized so to do by the bishop; and, consequently, the relation still subsisting, that the plaintiffs were bound to continue the payment of the defendant’s salary; that the bishop has the exclusive right of making a tariff of the casual emoluments of curates, or sums which the parishioners are to pay them for marriages, burials, funeral services, etc.; that the church-wardens have no authority to make such a tariff; that the plaintiffs have, however, established one for their parish, of which the bishop has always complained, and to which he has never given his sanction; and that some of the curates, instead of those emoluments, or a part of them, are remunerated by an annual salary, which varies from one thousand to twelve hundred dollars. The counsel has further urged, that, as curates are to be remunerated either by a salary or casual emoluments, the plaintiffs and appellants, by claiming in their petition an account of those emoluments received by the defendant have incurred the obligation of paying him a salary during the whole time of his ministry; that the appointment, by the bishop, of the defendant as curate, implied the assent of the congregation thereto; that catholics recognize no control, in spiritual matters, except that which proceeds from the head of the church, to wit, the pope, or his representative, the bishop, or the ministers appointed by the latter; and that if the powers of the chureh-wardens extend to the removal of incumbents, at their will and pleasure, either directly, or indirectly, by withholding from them the means of existence, or by preventing them from performing their religious duties in the parish church, the bishop’s power in this particular must be at an end. The defendant invokes the canon law, as governing the relations which exist between him and his spiritual superiors.
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Martin, J.
The plaintiffs are appellants from a judgment by which the defendant has recovered, in reconvention, the sum of $6734 76, for his services as curate of the parish of Pointe Coupée, and for certain expenditures made by him for the church. By a resolution of the church-wardens of the 1st of July, 1834, a yearly salary of $1000 was allowed to the defendant for his services, with a stipulation that he should not receive any part of the sums paid for burials and funeral services, and that he should attend the church on the Mississippi, and that on False River, saying mass two Sundays, at least, in each month, at the latter. A misunderstanding having taken place between the wardens and the defendant, the former, on the 2d of December, 1835, rescinded the resolution of the preceding year, resolving, however, that the salary should continue to be paid until the last day of that month. This resolution being communicated to the defendant about the 16th of January following, he replied that he had expected it, and would depart as soon as he should be paid what was due to him. Afterwards, the defendant received the sums paid for certain burials and funeral services. He declared that for the services, arrangements must be made with him, as he had no longer anything to do with the wardens. A witness, who acted as sexton and chorister during six years, deposes, that the defendant went during this time on occasional journeys to Avoyelles, where there was no curate, and also to Bayou Sara. The testimony clearly shows, that after the defendant was notified that the salary theretofore allowed him would no longer be paid, he considered himself absolutely independent of the wardens ; and, indeed, acted in open opposition to them, while they viewed him as having ceased to have any claim on them.
On these facts it has been contended, on the part of the appellee, and his counsel has endeavored to establish, by the testimony of the bishop of the diocese, and the theologal of the cathedral, [67] that the defendant, having been appointed by the bishop, curate of the parish, could not, consistently with his duty, consent to the dissolution of the relation in which he stood to the churchwardens of the parish, until authorized so to do by the bishop; and, consequently, the relation still subsisting, that the plaintiffs were bound to continue the payment of the defendant’s salary; that the bishop has the exclusive right of making a tariff of the casual emoluments of curates, or sums which the parishioners are to pay them for marriages, burials, funeral services, etc.; that the church-wardens have no authority to make such a tariff; that the plaintiffs have, however, established one for their parish, of which the bishop has always complained, and to which he has never given his sanction; and that some of the curates, instead of those emoluments, or a part of them, are remunerated by an annual salary, which varies from one thousand to twelve hundred dollars. The counsel has further urged, that, as curates are to be remunerated either by a salary or casual emoluments, the plaintiffs and appellants, by claiming in their petition an account of those emoluments received by the defendant have incurred the obligation of paying him a salary during the whole time of his ministry; that the appointment, by the bishop, of the defendant as curate, implied the assent of the congregation thereto; that catholics recognize no control, in spiritual matters, except that which proceeds from the head of the church, to wit, the pope, or his representative, the bishop, or the ministers appointed by the latter; and that if the powers of the chureh-wardens extend to the removal of incumbents, at their will and pleasure, either directly, or indirectly, by withholding from them the means of existence, or by preventing them from performing their religious duties in the parish church, the bishop’s power in this particular must be at an end. The defendant invokes the canon law, as governing the relations which exist between him and his spiritual superiors.
The decision of this ease does not require us to examine the relation between the appellee and his superiors in the church, further than to say, that the church-wardens are, in their corporate capacity, the legal owners of the property which the act of incorporation authorizes them to hold, to be used for the purposes [68] specified in the charter. They are the sole temporal administrators, and cannot be controlled, by the clergy, in their administration. They are responsible to the congregation only, who may choose others, if those in authority shall misuse or abuse the powers conferred by the legislature. Neither the pope, nor any bishop, has, within this state, any authority, except a spiritual one; and, as the courts of justice sit to enforce civil obligations only, they never attempt to coerce the performance of those of a spiritual character. We must content ourselves with considering the defendant in his civil relations to the plaintiffs. They do not deny that he was the curate of the parish, of which they are wardens; as such, they entered into a contract with him, soon after his arrival, in the year 1834, which appears to have been put an end to by mutual consent. This contract might entitle him, if he had chosen to remain in the parish, to the casual emoluments which parish priests are allowed, when no salary is agreed upon. That they must be satisfied with this, results from the testimony of the two dignified witnesses whom the defendant has introduced. Those emoluments have been fixed by a tariff made by the churchwardens. Those gentlemen, being desirous to provide for the support of a parish priest, as prescribed by the act of incorporation, were necessarily invested with the power of recurring for that purpose, to one of the two modes which the testimony informs us are customary in other parishes. It is difficult to conceive, how the power of fixing the quantum of the salary, can be distinguished from that of fixing the rate of the emoluments, which the parishioners are to pay for the services they require. The tariff of the. bishop may be obligatory as a matter of conscience, but courts of justice cannot be resorted to, to coerce a compliance. It appears from the 8th decree of the first provincial council, held in Baltimore, in the year 1829, which has been given in evidence, that the right reverend members of that body, doubted whether the payment of the salary could be coerced in temporal courts; since they enjoined upon each bishop of the different dioceses of the United States, to interdict every church under their respective jurisdiction, whose wardens should attempt to retain the whole or a part of the usual salary of the curate. The courts of justice of a state, in which the people recognizes [69] no power of taxing them, in any branch of the government but that in which they are represented, cannot easily be persuaded to acknowledge the power of fixing sums to be drawn from the pockets of suitors, by the mandate of the pope, or of any bishop appointed by him. The counsel for the defendant has contended, that, as the plaintiffs claim, in their petition, an account of the casual emoluments received by the defendant, they are bound to pay him a salary during the whole time of his ministry, to wit, until he shall be recalled by his bishop. To this, the counsel for the plaintiffs has correctly answered, that the actual receipt of the casual emoluments, after the dissolution of the contract for a salary, bound him more strongly to remain satisfied with these emoluments, and was an implied renunciation of the-salary. From the period when the salary ceased to be paid, until the 22d of May, 1841, the defendant was permitted to occupy the presbytery, although an act of assembly of the 24th of January, 1838, authorized the plaintiffs to deprive him of the use of the church property. The defendant does not appear to have considered himself bound to exercise his functions as he had previously done in the parish, after he ceased to receive the salary, for he indulged himself in several excursions to the parishes of Avoyelles and West Feliciana, in which there were then no parish priests ; being absent, at times, in his visits to the former parish for the space of six weeks — a length of absence absolutely inconsistent with the obligation of performing divine service twice a month, in the church at False River.
Our learned brother in the District Court, sustained the defendant’s pretensions, observing, that “ the treaty of cession guaranties to the inhabitants of Louisiana the unrestrained exercise of their religion, and recognizes the right to self-government in the Roman Catholic Church, as then known and established.”
The treaty of cession, art. 3, provides, that the inhabitants of the ceded territory, shall, as soon as possible, be admitted into the Union or Confederacy of the United States, and that, in the mean time, they shall be protected in their persons, property, and the free exercise of their religion. Since the 30th of April, 1812, the day on which Louisiana took her rank as an independent State among her sisters, that article of the treaty has ceased to have any [70] practical effect whatsoever, and has become obsolete. The promised protection was that of the Government of the United States, which abandoned the power by the erection of the territory into a State, fully able to afford to her citizens, and even to strangers within her jurisdiction, every needed protection. There is a decision of the Supreme Court of the United States to this effect.
The plaintiffs engaged to pay to the defendant, for his services as curate, a yearly salary of one thousand dollars, and at the end of about eighteen months, expressed their intention to cease to pay it. The defendant, on being informed of this, might have urged, that the second year having commenced, he was entitled to his salary until the end of it; this, however, he refrained ffom doing ; and, on the contrary, declared his intention to depart as soon as he was paid. Admitting, therefore, the authority of the bishop to insist on his curate’s remaining in the parish in which he had located him, notwithstanding the objections of the churchwardens to receive his services, and his want of inclination to render them, and a consequent obligation, on the part of the ehurch-wardens, to continue to pay the salary, maugre this, during the pleasure of the bishop, — it is certainly a non sequitur, that the defendant could not fairly consent to accept the contingent fees for burials and funeral services, instead of the salary by which he was formerly remunerated.
It appears to us, that the District Judge erred. It is established that after the defendant' received notice that the plaintiffs no longer intended to pay his salary, he declined the ordinary compliance with the duties for which the salary was a remuneration.
The counsel for the plaintiffs admits that the defendant is entitled to his salary for two years, to wit, from the 1st of April, 1834, to the 1st of April, 1836 ; and that he has, besides, a claim for expenditures amounting to a sum of $850 44, composed of $630, according to accounts numbered from 1 to 27, and of $220 44, as shown by the accounts in bundle 0. His other alleged disbursements are not supported by evidence. His salary, and an allowance for the washing of the church-linen, is admitted to be $20S0; which deducted from the sum of $2389 68, which he acknowledges to have received, leaves a balance of $309 68, to [71] be deducted from his expenditures ; so that there is still due to him a sum of $550 76.