Braley, J.
If primarily the controversy was confined to the form of divine worship to be used by the congregation, the progress of the dissension has developed other differences which the parties also seek to litigate in the present suit. The bill as. amended asks for restoration to membership of an expelled member, and that some of the defendants who have usurped certain corporate offices may be restrained from interfering with its property, joined with demands by the corporation for an accounting by the defendant ISTesson of his receipts and expenditures as mortgagee and president, and that the form of worship preferred by the individual plaintiffs may be established and confirmed.
It is apparent that under the most liberal rules of procedure there is a misjoinder of legally distinct and equitably inconsistent demands. Bliss v. Parks, 175 Mass. 539, 543. The remedy to test the validity of the expulsion of the plaintiff Finberg and the title of the usurping officers was by mandamus. Luce v. Board of Examiners, 153 Mass. 108. Keough v. Aldermen of Holyoke, 156 Mass. 403. If to render a bill multifarious the matters stated must not only be separate, but each of itself of such a character as to entitle the plaintiff to relief, the refusal of ISTesson to render an account to the corporation joins a cause for relief wholly independent of that of the remaining individual plaintiffs, even if upon being requested by them he would have declined to bring proceedings in the name of the corporation, and this objection should be taken by demurrer. Dimmock v. Bixby, 20 Pick. 368, 377. MeCabe v. Bellows, 1 Allen, 269. Davis v. Peabody, 170 Mass. 397, 399, 400, and cases cited. 1 Danl. Ch. Pl. & Pr. (6th Am. ed.) 346. So if the bill in substance fails to state a case for equitable relief the proper course [540] is to demur, although this objection may be equally available at the hearing. Story Eq. PI. & Pr. (8th ed.) § 453. Or all these defenses may be specially raised by an answer. 1 Danl. Ch. Pl. & Pr. (8th Am. ed.) 346." Equity Rule 13.
A special demurrer having been interposed raising the objections discussed, an order was entered by consent, overruling the demurrer “ without prejudice to raising the same questions of law at the time of the hearing on the merits.” The case was then referred to a master before whom not only were all the allegations of the bill tried at great length, but the demurrer was argued and submitted for his decision. The practice adopted resulted in the trial of issues by a master which should have been heard and eliminated by the court, and subjected the parties to the expense of litigating on the merits disputes not within the jurisdiction of a court of equity. The master, however, having decided the grounds of demurrer adversely to the defendants, they again raised the same questions by exceptions to his report. In this state of the record, the final decree, while sustaining these exceptions, properly treated the demurrer as having ceased to perform its functions. Crocker v. Dillon, 133 Mass. 91. Driscoll v. Smith, 184 Mass. 221, 222. United Shoe Machinery Co. v. Holt, 185 Mass. 97, 102. Vaughan v. Bridgham, 193 Mass. 392, 397. 1 Danl. Ch. Pl. & Pr. (6th Am. ed.) 346. It is not important to consider them further, but for reasons previously stated the exception of the plaintiffs was properly overruled, while the defendants’ fifth, sixth, eighth, ninth, tenth and twelfth exceptions were rightly sustained, and, as they did not appeal, there is no occasion to consider their remaining exceptions, which were overruled.
If these extraneous matters are thus disposed of, there remains for decision the principal ground of complaint, which is confined to the individual plaintiffs who continued members of the society. The grievance consists in the particular form of religious ceremony to be followed. The master finds that there are two forms or rituals in which the services could be conducted. At first the ritual favored by the plaintiffs was used, but later as the membership increased a different form was proposed by one section of the congregation. The agitation which followed led to antagonisms and disturbances at the meetings, in which each [541] faction endeavored to secure the use of its own ritual to the suppression of the other. It is unnecessary to go further into the details, or to consider the effect of the decision of the arbitrators to whom the contending factions submitted their claims, but whose award, even if violated by the defendants, expired by limitation before the master’s report was filed, so that an injunction could not properly be issued to enforce such award, any right to its enforcement being a right which had ceased to exist. It is apparent from the master’s very full report, that the plaintiffs and those affiliated with them established and directed the society’s ecclesiastical affairs when it was organized and for some time thereafter, but by the election of new members the defendants with their adherents finally became the majority. If the admission of a large number of them to membership at one or two of the meetings was irregular, the master further finds that at a subsequent meeting the irregularity was cured, or has been waived, and that by their admission a sufficient number was secured to enable the plaintiffs’ opponents to obtain full control. The change effected has been radical, as the plaintiffs with those whom they represent have dwindled to a small minority. The plaintiffs, however, including the corporation, which should have been joined as a party defendant, if this were the only issue, rely on Chap. 1 Art. 1 of the by-laws, providing that the ritual for “ divine services of this congregation ” should be in the form for which they now contend.
Free access — add to your briefcase to read the full text and ask questions with AI
Braley, J.
If primarily the controversy was confined to the form of divine worship to be used by the congregation, the progress of the dissension has developed other differences which the parties also seek to litigate in the present suit. The bill as. amended asks for restoration to membership of an expelled member, and that some of the defendants who have usurped certain corporate offices may be restrained from interfering with its property, joined with demands by the corporation for an accounting by the defendant ISTesson of his receipts and expenditures as mortgagee and president, and that the form of worship preferred by the individual plaintiffs may be established and confirmed.
It is apparent that under the most liberal rules of procedure there is a misjoinder of legally distinct and equitably inconsistent demands. Bliss v. Parks, 175 Mass. 539, 543. The remedy to test the validity of the expulsion of the plaintiff Finberg and the title of the usurping officers was by mandamus. Luce v. Board of Examiners, 153 Mass. 108. Keough v. Aldermen of Holyoke, 156 Mass. 403. If to render a bill multifarious the matters stated must not only be separate, but each of itself of such a character as to entitle the plaintiff to relief, the refusal of ISTesson to render an account to the corporation joins a cause for relief wholly independent of that of the remaining individual plaintiffs, even if upon being requested by them he would have declined to bring proceedings in the name of the corporation, and this objection should be taken by demurrer. Dimmock v. Bixby, 20 Pick. 368, 377. MeCabe v. Bellows, 1 Allen, 269. Davis v. Peabody, 170 Mass. 397, 399, 400, and cases cited. 1 Danl. Ch. Pl. & Pr. (6th Am. ed.) 346. So if the bill in substance fails to state a case for equitable relief the proper course [540] is to demur, although this objection may be equally available at the hearing. Story Eq. PI. & Pr. (8th ed.) § 453. Or all these defenses may be specially raised by an answer. 1 Danl. Ch. Pl. & Pr. (8th Am. ed.) 346." Equity Rule 13.
A special demurrer having been interposed raising the objections discussed, an order was entered by consent, overruling the demurrer “ without prejudice to raising the same questions of law at the time of the hearing on the merits.” The case was then referred to a master before whom not only were all the allegations of the bill tried at great length, but the demurrer was argued and submitted for his decision. The practice adopted resulted in the trial of issues by a master which should have been heard and eliminated by the court, and subjected the parties to the expense of litigating on the merits disputes not within the jurisdiction of a court of equity. The master, however, having decided the grounds of demurrer adversely to the defendants, they again raised the same questions by exceptions to his report. In this state of the record, the final decree, while sustaining these exceptions, properly treated the demurrer as having ceased to perform its functions. Crocker v. Dillon, 133 Mass. 91. Driscoll v. Smith, 184 Mass. 221, 222. United Shoe Machinery Co. v. Holt, 185 Mass. 97, 102. Vaughan v. Bridgham, 193 Mass. 392, 397. 1 Danl. Ch. Pl. & Pr. (6th Am. ed.) 346. It is not important to consider them further, but for reasons previously stated the exception of the plaintiffs was properly overruled, while the defendants’ fifth, sixth, eighth, ninth, tenth and twelfth exceptions were rightly sustained, and, as they did not appeal, there is no occasion to consider their remaining exceptions, which were overruled.
If these extraneous matters are thus disposed of, there remains for decision the principal ground of complaint, which is confined to the individual plaintiffs who continued members of the society. The grievance consists in the particular form of religious ceremony to be followed. The master finds that there are two forms or rituals in which the services could be conducted. At first the ritual favored by the plaintiffs was used, but later as the membership increased a different form was proposed by one section of the congregation. The agitation which followed led to antagonisms and disturbances at the meetings, in which each [541] faction endeavored to secure the use of its own ritual to the suppression of the other. It is unnecessary to go further into the details, or to consider the effect of the decision of the arbitrators to whom the contending factions submitted their claims, but whose award, even if violated by the defendants, expired by limitation before the master’s report was filed, so that an injunction could not properly be issued to enforce such award, any right to its enforcement being a right which had ceased to exist. It is apparent from the master’s very full report, that the plaintiffs and those affiliated with them established and directed the society’s ecclesiastical affairs when it was organized and for some time thereafter, but by the election of new members the defendants with their adherents finally became the majority. If the admission of a large number of them to membership at one or two of the meetings was irregular, the master further finds that at a subsequent meeting the irregularity was cured, or has been waived, and that by their admission a sufficient number was secured to enable the plaintiffs’ opponents to obtain full control. The change effected has been radical, as the plaintiffs with those whom they represent have dwindled to a small minority. The plaintiffs, however, including the corporation, which should have been joined as a party defendant, if this were the only issue, rely on Chap. 1 Art. 1 of the by-laws, providing that the ritual for “ divine services of this congregation ” should be in the form for which they now contend.
It may be assumed that the society was chartered under It. L. c. 125, and by It. L. c. 36, § 5, was empowered to enact a by-law which would prescribe a ritual or form of worship, and also to provide that the by-law could be changed or amended. The purpose of the corporation was “ the establishment of a Synagogue for the Public Worship of God in accordance with the principles and doctrines of the Hebraic Religion, and for such other charitable, benevolent and religious objects as the corporation may from time to time deem advisable.” Under the statutes and the certificate of incorporation the management of corporate affairs was to be conducted reasonably by the members; and the control of its business, including its form of worship and the ritual to be adopted, would ordinarily be determined by a vote of the majority. The by-law assumed to put it out of the power [542] of the corporation, except by unanimous vote of its members at a meeting called for the purpose, to make any change in the services performed in its worship. We are of opinion that this was unreasonable and inconsistent with the legal right of control of the affairs of the corporation existing in its membership. If it had put a reasonable limitation upon the power to change its form of worship, the by-law might have been binding; but in the form adopted it was utterly subversive of the right of control of a corporation which belongs to its members. Richardson v. Union Congregational Society, 58 N. H. 187. Smith v. Nelson, 18 Vt. 511. Knights of Pythias v. Knight, 117 Ind. 489. Wist v. Grand Lodge A. O. U. W. 22 Ore. 271. Wardens of Christ Church v. Poye, 8 Gray, 140.
This part of the by-law being ineffectual to limit the right of the majority, it was in their power in a proper way to change the form of worship, and this was done by a vote at a regular meeting. A special meeting was subsequently held “ to finally pass upon this matter.” At this meeting, action was takfen in affirmance of the form of vote, which was a full, deliberate expression of the purpose of nearly all the members upon an essential requirement of their religious services. The will of the majority having been lawfully expressed, the bill cannot be maintained for injunctive relief.
In his memorandum of decision the trial judge states that the parties consented to a decree in favor of the corporation against the defendant Nesson for a discharge of the mortgage, upon payment of the amount found due to him with interest. If the corporation should have proceeded separately for an accounting, yet, the merits having been fully tried, there is no objection to relief being decreed in order to avoid further litigation.
We find no error in the decree of the Superior Court, which should be affirmed.
Lecree affirmed.