Craig v. First Presbyterian Church , 88 Pa. 42 ( 1879 )

Mr. Justice Paxson

delivered the opinion of the court, January 6th 1879.

It was provided by the first section of the Act of 18th of April 1877, Pamph. L. 54, “ That -when by the growth of cities and the opening of incorporated cemeteries in the vicinity thereof, or from other causes, any burial-ground belonging to or in charge of any religious society or church, directly or through trustees therefor, has ceased to be used for interments, the courts of Quarter Sessions of the several counties of this Commonwealth, upon petition of the managers, officers or trustees of such society or church, setting forth that the erection, extension or improvement of buildings for religious purposes of such society or church are hampered and interfered with, and the welfare of such religious society or church is injured to the detriment thereof and of the public good, and after four weeks’ advertisement of hearing in open court for the purpose, may, after a full hearing of the parties therein, proofs and allegations, authorize and direct the removal of the remains of the dead from so much of such burial-ground as may be needed for buildings for religious purposes only, by the managers, officers or trustees of such society or church; Provided, that no such application shall be made by the managers, officers or trustees of such society or church, except in pursuance of the wishes of a majority of the members of such society or church, expressed at a church election, held for that purpose after two weeks’ public notice.” Under this act, the trustees of the First Presbyterian Church of Pittsburgh, presented their petition to the Court of Quarter Sessions of Allegheny county, setting forth, inter alia, that the burial-grounds attached to and belonging to said church had ceased to be used for the interment of the dead; that a portion of said ground was needed for the erection of a new Sabbath school building and lecture-room; that such building was intended only for the religious purposes of said church, and that the same is interfered with, to the detriment of the said church and the public good; that in accordance with the terms of said Act of Assembly, at the request of the trustees of said church, public notice was given from the pulpit in said church on the three Sabbath days preceding the 18th of April 1877, that on said day, a meeting of the congregation would • be held in the church, for the purpose of voting whether or not the trustees should be requested to petition the said court to authorize- and direct the removal of the remains of the dead from a portion of the burying-ground of the church, needed for the erection of a new Sabbath school building and lecture-room; that thereupon, after said public notice, a meeting of said congregation was held at the time and place appointed, which was duly organized, and at which the wishes of a majority of the members of said congregation were expressed in favor of such removal, and a resolution was passed, directing the trustees to petition the court for that purpose. The petition was so proceeded in, that said court subsequently made a decree granting the prayer of the petitioners, and ordering the removal of the remains of the dead from a portion of said burial-ground, specifying the same by metes and bounds. The plaintiffs in error filed a number of exceptions to the said petition and decree, which were overruled by the court below, whereupon said plaintiffs removed the record to this court by writ of certiorari. The assignments of error, which are somewhat numerous, may be reduced to four heads, viz.: 1. The Act of April 18th 1877, under which the proceedings were had, is in violation of the Constitution, for the reason that the subject of said act is not clearly expressed in the bill; 2. That the proceedings are irregular ; 3. That the case of the petitioner is not within the purview of said Act of Assembly; and 4. The legislature had not the power to authorize the removal. We will consider these objections in the order in which they are stated.

All the presumptions are in favor of the constitutionality of an Act of Assembly. It comes to us with the seal of approval of two of the co-ordinate departments of the government. To doubt is to decide in favor of its constitutionality. It is only in a clear case that we are justified in declaring an act to be unconstitutional. We have no such clear case presented by this record. ' The Act of April 18th 1877, was a supplement to the Act of 13th May 1876, which was a supplement to the Act of 19th May 1874, and is germane to the subject of the original bill. This is all that is required : State Line and Juniata Railroad Company’s Appeal, 27 P. F. Smith 431. They all relate to cemeteries and the removal of the dead therefrom.

There are several objections to the regularity of the proceedings. The Act of Assembly does not specify how notice shall be given to the church meeting to be called for the purpose of voting on the question of the reproval of the remains of the dead from the burying-ground. It merely says such meeting shall be held after two weeks’ “ public notice.” The record shows that notice was given from the pulpit of the church for the three Sabbaths immediately preceding the meeting. This is the usual manner of giving notice to the memhers of a church, as to matters pertaining to the church. It is certainly “public notice,” and in the absence of any specific direction in tlie Act of Assembly, or in the charter of the church, must be held to be sufficient. The objection that the ground proposed to be taken is .not sufficiently described is wholly untenable. It is set out in the decree by metes and bounds. It was also alleged that the application was not made in pursuance of the wishes of a majority of the members of the church, as required by the act. This raises a question of fact that has been decided adversely to the plaintiffs by the court below. The ground of this objection is that the votes by proxy were illegal. I concede that they were so. It is not a common-law right. The right of voting at an election of an incorporated company by proxy is not a general right, and the party who claims it must show a special authority for that purpose: Angell & Ames on Corporations, §§ 127, 131, 493; Taylor v. Griswold, 2 Green (N. J.) 223. But rejecting all votes by proxy there was still a majority. Of the persons present at the meeting, one hundred and sixty-three voted in favor of the resolution and four voted against it. It is said, however, that this was not a majority of all the members of the congregation. This is true. But it was a majority of all who were present in obedience to the call. Those who did not attend must be presumed to have assented. It is well settled upon authority that the minority present were bound by the action of the majority. In St. Mary’s Church Case, 7 S. & R. 517, the rule is thus laid down by Gibson, J.: “ The fundamental principle of every association for the purposes of self-government is, that no one shall be bound except with his own consent, expressed by himself or his representatives; but actual assent is immaterial — the assent of the majority being the assent of all; and this is not only constructively but actually true ; for that the will of the majority shall, in all cases, bo taken for the will of the whole, is an implied but essential stipulation in every compact of the sort; so that the individual who becomes a member assents beforehand to all measures that shall be sanctioned by a majority of the voices.” This decision is cited approvingly in Angelí & Amos, and the same principle is recognised in Presbyterian Congregation v. Johnston, 1 W. & S. 9. The rule is enforced daily in practice. It has never, to my knowledge, been doubted that at a church meeting, either regular or specially called with proper notice, the vote of the majority is binding upon the congregation. It may be asked, however, what is meant by the majority ? Does it mean the concurrence of the major part of those who happen to be present at a regular corporate meeting, or does it mean a concurrence of a majority of the whole body ? There is this distinction between a corporate act to be done by a definite number of persons, and one to be performed by an indefinite number. In the first case it is to be observed that a majority is necessary to constitute a quorum, and that no act can be done unless a majority be present; in the latter a majority of any number of those which appear may act. And where a corporation is composed of several integral parts, and each part consists of a definite number, a majority of each part must be present to constitute a quorum : St. Mary’s Church Case, supra. But when a corporation consists of several integral parts, one of which is indefinite, if any number of persons composing the latter, however small, are present after having been duly summoned, it is sufficient. The distinction is between a definite and an indefinite number. In the former case a majority must be present; whereas in the latter a majority of those present may act, whether a majority of the whole body or not: Angell & Ames on Corp. 464; Willcock on Mun. Corp. 66; The King v. Whitaker, 9 B. & C. 648. When, therefore, the legislature, by the Act of 18th of April 1877, provided for ascertaining the wishes of a majority of the members by a church election, it is fair to presume that the majority intended by the act was the majority of those who should attend and vote at such election. The act provides for taking the sense of the congregation in the usual manner, and prescribes no new rule as to what shall be binding upon them. Had it been intended to require the assent of a majority of all the members, whether present at the meeting or not, such intention might and probably would have been expressed clearly in the act.

The objection that the case of the petitioners is not within the purview of the Act of Assembly, involves the further proposition, that the purposes to which the proposed new buildings are to be put are not the religious purposes contemplated by the act. If the petitioners are wrong as to the second proposition, the first necessarily falls with it. The petition alleges that the new building is to be applied only to the religious purposes of said church. There is nothing in the record that contradicts this assertion/ The Sunday school rooms and the lecture-room of a modern church, are as essentially used for religious purposes as the body of the church building itself. The Sabbath schools are an important auxiliary of every Christian church, and indispensable to its life and growth. That the services in such schools are, in the main, of a religious character, is too well known to be seriously disputed. So of the lecture-room. It is used for the mid-week evening lectures and other services, when the attendance is not large. The expense of lighting and heating the main church building is thus avoided. But the services upon such occasions are as truly religious in their character as the sermon upon the Sabbath. Gass’s Appeal, 28 P. F. Smith 46, has no application to the point in controversy. There, a German Reformed congregation and a Lutheran congregation built a church together, in which by their articles of association, “ Divine service” only was to be held; for many years, there were no meetings in it except for public worship. It was held, under the facts of that case, that “ Sabbath schools” were not included in the term, “Divine service,” and upon a bill filed to prevent the continued and unauthorized use of the audience room for the Sunday schools, this court, overruling the court below, granted an injunction. The distinction taken in that case, between “ Divine service” and Sabbath school services was manifestly proper. Says Agnew, J., “ That prayer and praise, and indeed, oral as well as written instruction in religious matters by laymen, are used in Sunday school service is true, and in a general sense it may be said to be Divine service. * * * But in its more restricted sense it is used to signify acts of religious worship.” In view of the contract between the two churches, the term was confined to its restricted sense. In the case in hand, the Act of Assembly uses the words “ religious purposes,” a term of much wider meaning, and clearly embracing Sabbath schools and the ordinary lecture services of a church. Nor do we think it detracts from the character of the occupancy of the building, that it is proposed to use the lecture-room occasionally for social gatherings incident to the church, for societies for benevolent objects, and for fairs held by the ladies to raise funds for missionary work; nor that it is proposed to sometimes furnish a “ plain tea” to those members who attend evening service from a distance. The body needs food as well as the soul. If the church requires the building for its Sabbath schools and for a lecture-room, and such purposes are religious in their nature, as we have endeavored to show, of what possible matter can it be should the church utilize said building by applying it to other collateral objects, not in themselves technically religious, yet germane to the general purpose. And if by such means an income is derived therefrom, there is no violation of either law or morals. We think the case of the petitioners is clearly within the purview of the Act of Assembly.

The question whether there was any necessity for the proposed encroachment upon the graves of the dead, is not legitimately before us. It might or might not have been avoided by purchasing another lot for building purposes. The Act of Assembly refers this question to the congregation, and they have decided it adversely to the plaintiffs. We see nothing upon the record to justify us in revising their discretion.

The remaining question is one of power. The church having granted the privilege of interment in its grounds to certain persons, it is contended that as against the corporation such persons have a right to have the bodies remain undisturbed. In other words, that they had certain rights of property in said burial-ground which could not be taken away except for public purposes, and upon making compensation therefor; and that the said Act of April 18th 1877 was transgressive of art. 1, sect. 17, of the Constitution, which prohibits the legislature from passing any law impairing the obligation of a contract.

Neither of the plaintiffs has such a standing in court as entitles him to raise this question. The plaintiff, Isaac Craig, excepts to the proceedings in the court below as “ a pew-holder and member of the First Presbyterian Church of Pittsburgh,” and the plaintiff, John B. Guthrie, joins in said exceptions as one “ who has relatives, including two children, buried in the ground proposed to be taken by said dhurch for its new buildings.” Beyond this meagre statement there is nothing to show any contract relation between the plaintiffs and the church. The record does not show, nor does Mr. Craig allege that he has buried any dead in the grounds, or that he has any right to do so. Mr. Guthrie alleges that he has relatives buried there, but in no part of the record does he show that he has any rights of sepulture in said grounds or any contract relation with the church.

We might well stop here. As, however, this point was argued on its merits, both below and in this court, we will consider it as if properly before us.

The ground in controversy was • a gift from the Penns. It was conveyed by John Penn and John Penn, Jr., to the trustees of the Presbyterian congregation of Pittsburgh, by deed, dated September 24th 1787. The church was incorporated five days thereafter, to wit, on the 29th of September 1787. The ground conveyed to the church by the Penns was originally the western half of an old public burying-ground, used as- a place of interment for a period of thirty-five years before the Penns conveyed it to the church. The French used the ground as a place of sepulture from 1753 to 1758, whilst they held Fort Duquesne. Here they buried Beaujeux, the commander of the French and Indians at Braddoek’s defeat, July 9th 1755. Afterwards, the ground was used for the same purpose by the British and Colonial troops, stationed at Fort Pitt, and subsequently by the American troops, during the Revolutionary war. It was also used by the inhabitants from the first sectlement of the country. (Vide testimony of Isaac Craig.) In the course of time the ground became so densely populated with dead bodies that it was scarcely possible to open a new grave without disturbing the remains of some one previously interred, and in 1848 or 1849 interments there ceased altogether, and its further use as a place of burial was abandoned. It was under such circumstances that the church petitioned the court for authority to remove the remains, under the Act of 18th April 1877.

We have no accurate information as to the precise nature of the relations between the church and those privileged to bury in its grounds. It does not appear that any one of them had any right to or title in the soil, nor any right of sepulture in any particular lot or place in the yard. We have nothing^in this entire record upon this subject except the statement of Robert Dalzell. He says in his cross-examination : “ My impression is that pew-owners were entitled to burial without paying anything for the ground. There was a book which showed all orders for interments of pew-owners and others; that book has been lost. I think that all persons, except pew-owners, paid for the privilege of burying in the churchyard, unless it was the poor of the church, and as to them I am not sure.” The most that can be made of this is that the church granted a mere license or privilege to inter in its ground. To pew:holders it appears to have been granted without cost — to strangers upon a consideration. What rights does such a license confer upon the grantee ? The answer is clearly given by Mr. Justice Siiarswood in Kincaid’s Appeal, 16 P. F. Smith, at page 420, “ We hold that it was the grant of a mere license or privilege to make interments in the lots described, exclusively of others, as long as the ground should remain ‘the burying-ground of the church.’ Whenever by lawful authority it should cease to be a burying-ground, his right and property would cease. The lot-holder purchased a license — nothing more — irrevocable as long as the place continued a burying-ground, but giving no title to the soil. While the license continued, he could, perhaps, bring trespass or case for any invasion or disturbance of it, whether by the grantors or by strangers. But if, in the course of time, it should become necessary to vacate the ground as a burying-ground, all that ho could claim, either in law or equity, would be that lie should have due notice, and the opportunity afforded him of removing the bodies and monuments to some other place of his own selection, or that on his failing to do so such removal should be made by others. Ho accepted this grant or license subject to this necessary condition.” Justice Sharsavood cites a number of authorities Avhich fully sustain his position, and also discusses at some length the rights of pcAA'-owners in churches, AA'hich bear a close analogy to the case of rights of supulture. The principle deducible from the numerous authorities cited is that “ the grant of a pew in a church edifice in perpetuity does not give to the pew-owner an absolute right of property as in a grant of land in fee. He has a limited usufructuary right only. lie must be presumed, from the very nature of the subject-matter, to have taken the grant under all the conditions and limitations incident to such property.” The same doctrine Avas held by this court in Church v. Wells’s Ex’rs, 12 Harris 249; says Loavrie, J.: “A pew right is not of such a character as to prevent an absolute sale of the church edifice either by contract or judicial process ; by itself it was never known as a subject of taxation ; if the edifice burns down the pew right is gone; it does not prevent the society from tearing down and rebuilding the edifice, or from altering the whole interior arrangement of it; it does not authorize the peA\--holder to change and decorate the peAV according to his fancy, or to cut it doAvn and carry it away; and it gives him no right to the ground oh which it stands. It is, therefore, a right that is entirely peculiar.”

The right of the legislature to authorize the removal of the remains of the dead from cemeteries is well settled. So it may delegate such power to municipalities. It is a police power necessary to the public health and comfort: Kincaid’s Appeal, supra. The founders of our cities had perhaps but a faint idea of their future growth. Nor did they, probably at that early day, realize the sanitary evils attendant upon the interment of dead bodies in crowded cities. I notice in a recent paper a statement from an eminent surgeon of the city of Philadelphia, that a dead body requires a period of from fifty to one hundred and fifty years for its entire decomposition. During all that time the air and the sources of water supply are, to a greater or less extent, affected by the noxious gases connected with such decomposition.

The graves of the dead may not be disturbed from mere wantonness. To do so is a misdemeanor and indictable both at common law and under the statute as an offence “highly indecent and contra bonos mores.” Conceding, however, the right of the legislature to authorize such removal by virtue of its police power, the exercise of such power is not to be interfered with or denied because accompanied with some incidental benefit to the society or church in whose interest such power is invoked. It was competent for the legislature to have passed an act merely authorizing the removal of the remains from this burial-ground. That the ground thus to be vacated is to be utilized by the church by the erection of a building for Sunday school purposes and a lecture-room, neither vitiates the act nor inflicts a wrong upon any human being, living or dead.

Speaking for myself I have no doubt of the power of the trustees, under the deed from the Penns, and the charter of the church, to remove the remains with the consent of the congregation. I regard the application to the court, under the Act of 1877, as wholly unnecessary. Be that as it may the power of the legislature to authorize such removal is beyond doubt.

I have considered the law of this case, not its sentiment. Mere sentiment, not based upon rights of persons or property, is not of value in a judicial proceeding.

We have been unable to find any serious error in this record. The proceedings therefore are affirmed.