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Runkel v Winemiller
 4 Harris & McHenry 276
Supreme Court - Maryland

GENERAL COURT, OCTOBER TERM, 1799.

RUNKEL VS. WINEMILLER et al.

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The writ of mandamus is a prerogative writ, grantable where the public justice of the State is concerned, and commands the execution of an act when otherwise justice would be obstructed: it is the true, specific remedy to restore a person wrongfully dispossessed of an office or function which draws after it temporal rights. (a)

The jurisdiction of the General Court in cases of mandamus is similar to that of the Court of King's Bench. (b)

The Christian religion is the established religion by our form of government and all denominations are placed on an equal footing and equally entitled to protection in their religious liberty.

Every endowed minister, of any denomination, who has been wrongfully dispossessed of his pulpit, is entitled to the writ of mandamus to be restored to his function and to the temporal rights with which it is endowed.

Who is an endowed minister.

Prima facie evidence is sufficient to induce the Court to grant a mandamus, and the merits of the case will not be tried upon affidavits. (c)

The prima-facie evidence in this case was held sufficient to entitle the prosecutor to a writ of mandamus to be restored to his office of minister of the Dutch Reformed Church of which he had been dispossessed.

The return to an alternative mandamus stated that the minister had been removed by a majority of the church, who had the right to do so, but did not state that notice had been given of the meeting which removed him, nor that the congregation met, but only that a majority thereof met. and did not give the names of such majority. Held, that the return was insufficient and a peremptory writ of mandamus was granted. (d)

(a) Approved in Harwood vs. Marshall, 9 Md. 97; State vs. Graves, 19 Md. 374; Kendall vs. U. S. 12 Peters, 620.
(b) The present County Courts have the same jurisdiction and powers. Harwood vs. Marshall, 9 Md. 98. Materiai changes have been made in the proceedings in cases of mandamus, by Code, Art. 59. Weber vs.. Zimmerman, 23 Md. 45. Mandamus cannot issue without notice from the Court to the opposite party. Brosius vs. Reuter. 1 H. & J. 480.
(c) See .Matter vs. Primrose, 23 Md. 501; School Com. vs. State ]Board, 26 Md.. 507.
(d) See Brosius vs. Reuter, 1 H. & J. 551; Harwood vs. Marshall, 10 Md. 451; Weber vs. Zimmerman, 23 Md. 45; Miller vs. Eschbach, 43 Md. 1.

   MANDAMUS. The proceedings in this case are as follows, to wit: Be it remembered, that at this term, to wit, the second Tuesday of October, being the 14th day of the said month, in the year of our Lord, 1794; and during the said term, to wit, on the 22nd day of November, in the year aforesaid, the Reverend William Runkel comes into the General Court here, by Luther Martin and William Pinkney, his attorneys, and files in Court here certain affidavits and papers, the tenor whereof are as follows, to wit:

(430)  "John Gebhart, of Frederick County, aged about 44 years, being duly sworn on the Holy Evangely of Almighty God, deposed and made  oath that the respective congregations of that religious sect or persuasion called the German or High Dutch Reformed Christian Church have, or are entitled to have, a minister to perform divine service; which minister, by the tenets, articles, or constitution of their church or persuasion, must be appointed out of the members of their synod. That in order to procure the appointment and induction of a minister, the congregation apply to the synod for a minister; the synod recommends one to them, which minister, so recommended, is proposed to the congregation, and if acceptable to a majority, he is called upon and authorized by the elders of the congregation, by a writing called a vocation, to officiate for them; and if he agrees to officiate, he is thereupon inducted and put in possession of his function, and emoluments belonging to it; and such minister is considered as entitled to hold the said function, and as having an interest therein for life unless displaced bv the synod at the instance of a majority of the congregation.

   "The said Gebbart further deposeth, that the congregation of the German Reformed Christian Church at Frederick Town, did apply to their synod for a minister, and that the synod did recommend to the said congregation the Reverend William Rumkel, who being so recommended was duly proposed to the said congregation, and was accepted by a very great majority of the said congregation, if not unanimously; that thereupon the said Runkel was called upon and authorized by the elders of the congregation aforesaid, by a writing called a vocation, to officiate for them; that the said Runkel did accept the vocation, and agree to officiate for the said congregation; and thereupon was duly inducted and put in possession of his function and the emoluments thereto belonging, ten years past or thereabouts; that those emoluments consist of the enjoyment of a parsonage-house, and the benefits and profits of the same, also eighteen cords of wood annually, and also an annual salary of eighty pounds current money.

(431)   "The said Gebhart further deposeth, that none are considered real members of their church, agreeable to the rules adopted by the said congregation except such who join in communion, and also contribute to the making up that annual salary to which the minister is entitled, unless excused there from by reason of indigence and that congregations list is annually to be signed by such who wish to be considered members of the said church, and deposited with the minister; and  that no persons, agreeable to those rules, are members of the said church, but such who sign the said list; the male signers of which have alone a right to vote contenting, or interfere with, any of the affairs of the said church. And he further saith, that the list of names contained in the schedule, or paper No. 3, D, herewith exhibited, is a true list of the male members of the said church who have signed the said congregational list for the present year. He also saith, that William Schneyder, who has been forcibly introduced into the said church as a minister, is not a member of said synod, nor owned or acknowledged by them as a member of their church.

"Sworn before,         J. Bullen"

   [The other papers and affidavits are--A letter from synod to the German Reformed Congregation of the 13th May, 1784.-- "That if Mr. Henop, your present minister, should approve of the aforesaid vocation your congregation be at perfect liberty to vocate any minister who is a member of the synod; as likewise the minister; being thus vocated, is authorized to accept the vocation." A vocation from the elders of the 9th of August, 1784, to the Rev. Mr. Runkel, as teacher and minister in Frederic-Town congregation, &c. Other letters of the 20th June, 1791, 30th April and 20th May, 1794, from the synod to the congregation, stating that if they would agree amongst themselves, and fix upon a minister of the synod, Mr. Runkel would resign --that Mr. Schneyder did not belong to the church, &c. The church rules, a list of the members of the church, &c. The title papers to the church parsonage-house, &c. Affidavits of the manner of electing ciders, and the election of the present elders. And affidavits of the manner of the entry of the defendants into the church and their keeping the Plaintiff thereout; &c.]

   And thereupon, on motion of the said William Runkel by his attorneys aforesaid, it is ruled by the Court here, that Henry Winemiller [naming all the defendants,] of Frederick County, shew cause to this Court, on Tuesday the tenth day of February next, why this Court should not issue a writ of mandamus, commanding them, and each of them, to restore, or cause to be restored, the said William Runkel into the place and function of minister of the congregation of the German or High Dutch Reformed Christian Church in Fredericktown, and to the use of the church of the said congregation, and the pulpit thereof, with all liberties, and privileges and advantages, to that place and function belonging or appertaining.

(432) And it is also ruled by the Court here, with the consent of the said W.R. by his attorneys aforesaid, that the counsel for the said H. W. &c. have access to all the books, papers and memorandums, belonging to the congregation of the German or High Dutch Reformed Christian Church in Frederick-Town remaining in the possession of the said W. R. or any of the elders or deacons of the said church or in the possession of ally person appointed by them to keep the same.

   Copies of which said rule were made and sent to the said H. W.,  L. B. &c. The same day is given to the said W. R. &c.

   At which said day, to wit, Tuesday the 10th day of February, in the year or our Lord 1795, in this present term of October, in the year 1794 aforesaid, comes again in the General Court here, the said W. R. by his attorneys aforesaid. And the said H. W. &c. also come into the General Court here, by Philip Barton Key, John Thompson Mason, and Arthur Shaaff; their attorneys. And thereupon, on motion of the said H. W., L. B. &c. by their attorneys aforesaid, and with the consent of the said W. R. by his attorneys aforesaid, further day is given to the said H. W. &c. to shew cause, &c. until the second day of the next. term of the Court here, to be held on the second Tuesday of May next. The same day is given to the said W. R. then, &c.

   At which said next term, to wit, the second Tuesday of May, being the 12th day of the said month in the year of our Lord 1795, and on the second day of the said term here, to wit, on the 13th day of the said month in the year last. aforesaid, come again into the General Court here, as well the said W. R. by his attorneys aforesaid, as the said H. W. &c. by their attorneys aforesaid. Thereupon the respective parties aforesaid, by their attorneys aforesaid, file in Court here certain papers and affidavits, the tenor whereof are as follows: to wit: [The affidavits on the part of the defendants state, "That by the rules and constitution of the German or High Dutch Reformed Christian Church in Frederic-Town, in which the plaintiff has officiated as minister, the majority of the congregation of the said church alone are entitled to appoint a minister to officiate in the said church, who may be any person the said majority think proper, and need not be a member of the synod. That the said synod have no kind of power over the congregation or minister, except that of advising, which' be rejected if it is thought proper. That the said minister acts by contract between the congregation and himself, and has no right to the pulpit or to any thing else respecting his function, except what he derives from such contract.

(433)   That the place of a minister is nothing more than a service to be performed to the congregation, for so much as the congregation will voluntarily subscribe, and he will accept of that said minister has no right to any salary or emolument of any kind belonging to him in the capacity of minister, but depends upon the annual subscription of the congregation; and the minister is not obliged to accept of the sum subscribed, and if he does not chose to stay the the money, he may leave the congregation. That the said congregation may likewise, at any time, displace the said minister at their will and pleasure; and if the majority say so he is no longer a minister of that particular church. That the house in which the minister has usually lived is solely the property of the congregation and does not belong to the officiating minister as appurtenant or belonging to his station; but that the congregation, or the majority, might if they choose stipulate that he should not have it, and apply it to other purposes.

   That the plaintiff is disapproved of by a large majority of the said congregation, who have solicited and wished him to leave the said congregation; but that he and his elders are determined to support him, if possible, against the wishes and directions of the rest of the congregation." Also "that the rules and constitution of the above church are similar to those of the Lutheran Dutch Church."  Those rules were stated by members of the said last mentioned church. "That there is no rule that. if a member does not subscribe to a particular minister he is no longer a member of the church. That the plaintiff was displaced, and Schneider appointed by a majority," &c.

   Thereupon on motion or the said H. W. &c. by their attorneys aforesaid, and with the consent of the said W. R. by his attorneys aforesaid, further day is given to the said H. W. &c to shew cause &c. until the second day of the next term of the Court here, to be held on the second Tuesday of October next. The same day is given to the said W. R. then, &c.

   At which said next term to wit, the second Tuesday of October, being the 13th day of the same month in the year of our Lord 1795 and on the second day of the said term, to wit, on the 14th day of the said month in the year last aforesaid, come again to the General Court here the parties aforesaid, by their attorneys aforesaid.

(434) And thereupon on motion of the said W. R by his attorneys aforesaid, it is ruled and ordered by the Court here that the first day of the next term lm given to the said H. W. &c:. of Frederic County, to shew cause why a writ of mandamus should not issue; directed to them, requiring them, and each of them, to restore, or cause to be restored, the said William Runkel  into the place and function of minister of the congregation of German or High Dutch Reformed Christian Church in Frederick-Town, in the said county, and to the use of the church of the said congregation, and the pulpit thereof as minister of the said congregation, with all liberties, privileges and advantages, to that place and function belonging or appertaining. And it is further ruled and ordered by the Court here, that notice of this rule be given to the Reverend William Schneider of the said town and county, to the intent that he may be heard as he shall be advised.

   Copies of which said rule were made and sent to the said H. W. &c. and also to the said William Schneider, &c. The same day is given to the said W. R. then, &c.

   At which said next term, to wit, the second Tuesday of May, being the 10th day of the said month, in the year of our Lord 1796, come again into the General Court here, the parties aforesaid, by their attorneys aforesaid. Whereupon all and singular the premises being by the Court here seen, heard, and fully understood, and mature deliberation being thereupon had, it is considered by the Court here, that the writ of the State of Maryland of mandamus issue forth out of the General Court here, directed to the said H. W. &c. commanding them, and each of them, immediately to restore, or cause to be restored, the said W. R. into the said place and function of minister of the congregation of the German or High Dutch Reformed Christian Church in Fredrick-town, in the said county, and to the use of the church of the said  congregation and the pulpit thereof, as minister of the said congregation, with all liberties, privileges and advantages, to that place and function belonging or appertaining, or signify to the Court here cause to the contrary thereof, &c. and which said writ of mandamus accordingly issues in form and of the tenor following, to wit: [See the writ in 2 Harris' .Entries, 704, 705.] The same day is given to the said W. R. then, &c.

   At which second Tuesday of October, being the 11th day of the said month, in the year of our Lord 1796. and the day of the return of the aforegoing writ of mandamus, comes again into The General Court here, the said W. R. by Luther Martin and William Cooke, his attorneys, and the said H. W. &c. to whom the said writ of mandamus was in form aforesaid directed, likewise come into the General Court here, by Arthur Sheaff and Philip Barton Key, their-attorneys. And the said W.R. by his attorneys last aforesaid, prays that the said H. W. &c. shew cause to the Court here why a return has not been made by them of the said writ of mandamus was in form aforesaid to them directed, according to the command of  the said writ; and files in Court here a certain affidavit annexed to a copy of the said writ of mandamus, of the tenor following to wit:

(435) [Here follows the affidavit that a copy of the writ was delivered to certain of the defendants, &c.] And the said W. R. by his attorneys aforesaid, also file in Court here certain other affidavits of the tenor following, to wit: [Verifying that a copy of the writ was served on others of the defendants, and that others had left the State, &c.]

   Whereupon, the said H. W. &c. by their attorneys last aforesaid, pray that they may not be compelled to shew cause why a return has not been made of the said writ of mandamus to them in form aforesaid directed, for that it does not appear by the said affidavits that notice has been given to each of them the said H. W. &c. of the said writ of mandamus, nor does it appear that a official copy of the said writ of mandamus has been served on each of them the said H. W. &c.

   Whereupon, all and singular the premises being by the Court here seen, heard, and fully understood, and mature deliberation there-upon had, it is ruled by the Court here, that the said H. W. [and the others of the defendants on whom the writ was served, &c.] of Frederick County, do returns. on or before the 22d day of October instant, the writ of mandamus to them directed, bearing' date th 18th of August, 1796, whereby they and each of them were commanded, that immediately upon the receipt of the said writ they should restore, or cause to be restored, the said W. R into the place and function of minister of the congregation of the German or High Dutch Reformed Christian Church in Frederick-town, in the said county, and to the use of the church of the said congregation, and the pulpit thereof; as minister of the said congregation, with all liberties, privileges and advantages, to that place and function belonging or appertaining, or signify to the said General Court cause to the contrary thereof lest in their default complaint, should come to the said Court repeated, &c.

   Copies of which said last mentioned rule were made and sent to the said H. W. &c.

   The same day is given to the parties aforesaid then, &c.

   At which said day, to wit, on the 22d day of October in this present term, comes again into the General Court here the said W. R. by his attorneys aforesaid; and the said W. R. by his attorneys aforesaid, files in Court here a certain affidavit annexed to an attested copy of the rule lastly hereinbefore mentioned, and which said affidavit is of the tenor following, to wit: [Here follows the affidavit, that attested copies of the rule had been severed on each defendant, &c.]

(436)  And thereupon the said H. W. &c. in pursuance of the command of the said writ of mandamus, and in virtue of the rule last aforesaid, come into the General Court here, by their attorneys aforesaid, and make return to the Court here of the said writ of mandamus, as follows, to wit: "We, Henry Winemiller, &c. &c. of Frederick County, the parties to whom the writ hereto annexed is directed, by virtue of the writ aforesaid, do most humbly certify to the Judges of the General Court, sitting in the General Court for the Western Shore of Maryland, that the congregation of  the German or High, Dutch Reformed Christian Church in Frederick-town, in the county aforesaid, which is mentioned in the said writ hereto annexed, is an ancient congregation composed of all the members of the German or High Dutch Reformed Christian Church in Frederick-town, in the county aforesaid, to which said congregation there is a church and a pulpit thereof in Fredericktown aforesaid, belonging and appertaining, which is the same church and pulpit in the said writ mentioned. We do further certify that there are and have been from time immemorial, certain rules and ordinances of the congregation; which said rules and ordinances the congregation, and the members thereof, have been accustomed to and ought to have from time immemorial. We do further certify that the said rules and ordinances are still in full force and virtue and have been from time immemorial; that by the said rules and ordinances of the said congregation, it is ruled and ordained, that the majority of members of the said congregation, at their sole will and pleasure, may at any time elect a person to be minister of the said congregation; and if such person so elected to be minister of the said congregation does agree to serve as minister of the said congregation, he is thereupon, by the rules and ordinances aforesaid, to be by majority of the members of the said congregation, inducted to, and put in possession of, the place and function of minister of the congregation aforesaid, and the use of the said church of the said congregation, and the use of the pulpit thereof, as minister of the said congregation, with all liberties, privileges and advantages, to that place and function belonging and appertaining; and the said minister, when so elected and inducted, and put in possession, holds the said place and function of minister of the said congregation at the will and pleasure of a majority of the members of the said congregation, and removable at their pleasure.

(437) We do further certify that we are members of the said congregation, and duly entitled to all the rights and privileges  of members of the said congregation. That by the rules and ordinances aforesaid of the said congregation, it is further ruled and ordained, that a majority of the members of the said congregation may at any time, at their sole will and pleasure, without any cause, remove and displace the said minister of the said congregation, so elected and inducted, from the place and function of minister of the said congregation, and from the use of the said church of the said congregation, and from the use of the pulpit thereof, as minister et the said congregation, and from all liberties, privileges and advantages, to that place and function belonging and appertaining. We do further certify', that a majority of the members of the said congregation did heretofore, on the 9th day of August, 1784, duly elect the said William Runkel, to be minister of the said congregation, and that the said W. R. did afterwards agree to serve as minister of the said congregation, and that he was thereupon, by a majority of the members of the said congregation, inducted to, and put into possession of, the place and function of minister of the congregation aforesaid, and the use of the said church of the said congregation, and the use of the pulpit thereof, as minister of the said congregation, and all liberties and advantages to that place and function belonging and appertaining. We do further certify, that a, majority of the members of the said congregation, and we, together with the said majority, and being part of the said majority, did duly meet and assemble together, on the 6th day of March, 1794, at the said church in Frederick-town a foresaid, to continue or remove the said William Runkel, from the place and function of minister of the said congregation, and from the said church of the said congregation, and from the use of the pulpit thereof; as minister of the said congregation, and from all liberties, privileges and advantages, to that place and function belonging and appertaining as the said majority should then and there determine, of all which premises the said W. R. had due and timely notice and warning; and that the said majority of the members of the said congregation, and we, together with the said majority, and being part of the said majority, did then and there, on the said 6th day of March, 1794, at the said church in Frederick-town aforesaid, duly remove and displace the said W. R. from the place and function of minister of the said congregation, and from the use of the said church of the said congregation, and the pulpit thereof; as minister of the said congregation, and from all liberties, privileges and advantages, to that place and function belonging and appertaining; which said removal is the said removal complained of in the writ hereto annexed.

(438) "Wherefore, we cannot, nor can either of us, restore the said W. R. into the said place and function of minister of the congregation of the German or High Dutch Reformed Christian Church in Frederick-town, in the said county, and to the use of the church of the said congregation, and the pulpit thereof, as minister of the said congregation, with all liberties, privileges and advantages, to that place and function belonging and appertaining, as by the writ aforesaid we are commanded. Given under our hands and seals this 18th day of October, 1796.

Henry Winemiller
[Also signed and sealed by the other defendants.]

   And thereupon the said W. R. by his attorneys a aforesaid, having read the said return to the writ aforesaid, protesting that the said return and the matters therein contained are insufficient in law to preclude ]him and the said W. R. from having a. peremptory writ of the State of Maryland of mandamus, in this behalf prays the Court here, that by reason of the insufficiency of the said return, a peremptory writ of the State of Maryland of mandamus may be awarded unto him the said W. R. &c.

   But because the Court here are not advised to give their judgment of and upon the premises aforesaid, a day is therefore given to the parties aforesaid, before the Court here, until the second Tuesday of  May next., to hear thereof their judgment, for that the Court here are not, c.

   At which said second Tuesday of May, being the 9th day of the same month, in the year of our Lord 1797, come again into the General Court here the parties aforesaid, by their attorneys aforesaid. Whereupon, for that the Court here are not yet advised to give their judgment of and upon the premises aforesaid: day therefore, by consent of the parties aforesaid: by their attorney's aforesaid, is further given to the said parties, to hear thereof their judgment, until the second Tuesday of October next, for that the Court here as yet are not, &c. [Same appearances and continuances at October Term, 1797, May Term, 1798, October Term, 1798, and May Term, 1799, except that the case was not continued "by consent" at October Term 1797: and October Term, 1798.]

   And now here, at this day, to wit, the said second Tuesday of October, being the 8th day of the said month in the year or our Lord, 1799 come again into the General Court here, as well the said W. R by Luther Martin and Robert Goodloe Harper, his attorneys, as the said H. W. &c. by Arthur Shaaff and Philip Barton Key their attorneys aforesaid.

(439) Whereupon, all and singular the premises being by the Court here seen, heard, and , fully understood, and mature deliberation had, for that it appears to the Court here, that the said H. W. &c. have certified and returned to the Court here an insufficient cause for not restoring, or caused to be restored, the said W. R. into his said place and function of minister of the said congregation of the German or High Dutch Reformed Christian Church in Frederick-town, in the county aforesaid, and to the use of the church of the said congregation and pulpit thereof; as minister of the said congregation, with all liberties: privileges, and advantages, to that place and function belonging or appertaining; and that the said return is insufficient in law to preclude the said W. R. from the preemptory writ of the State of Maryland of mandamus. It is therefore considered by the Court here, I hat the peremptory writ of the State or Maryland of mandamus issue, directed to the said H. W. &c. commanding them, and each of them, absolutely to restore, or cause to be restored, the said W. R. into the said place and function of minister of the congregation of the German or High Dutch Reformed Christian Church in the town and county aforesaid, and to the use of the church of the said congregation, and the pulpit thereof, as minister of the said congregation, with all liberties, privilege, and advantages, to that place and function belonging or appertaining, &c. It is further considered by the Court here, that the said W. R. recover against the said H. W. &c. the sum of _______ for his costs and charges about his suit in this behalf expended, according to the form of the statute in such case made and provided. And thereupon the said W. R. by his attorneys aforesaid, prosecutes and sues forth out of the General Court here, the preemptory writ of the State of Maryland of mandamus, directed to the said H. W.. &c. returnable here on the second Tuesday of May next, &c.

Shaaff, for the defendants, (at May Term, 1795, on the return of services of the rule,) moved the Court for permission to file cross-affidavits against the motion for a mandamus; and the question was then argued by him, and by Pinkney, contra. The Court did not then decide whether cross-affidavits ought to be considered in determining whether a mandamus should issue; but they permitted the defendants to file them and the cause was continued.

440 Sbaaff, (at October Term, 1795,) objected to the form of the rule. That if the office is full it is necessary that the party in possession should be made a party-Esp. 672; 3 Burr. 1453; The rule in this case follows those in  3 Burr. 1266 & 1453; but Schneider being in possession, the mandamus cannot go to him; he not being named in the rule. The rule ought to be in the alternative, Esp. 674; 2 Burr. 1043; 3 Burr. 1265. When the rule is general the mandamus is in the alternative - Lill. Ent. 614; 1 T. R. 331.

   Pinkney, for the prosecutor, cited 5 Burr. 2740, 2743; I Wils. 133, 283; 3 BIk. Com. 111.

   The rule was amended so as to give notice to Mr. Schneider.

Sbaafl, (at May Term, 1796,) against the rule for a mandamus, raiseed the following questions, viz.

   1st. Has the prosecutor shewn sufficient facts to entitle him to the office claimed?

   2nd. Is the office claimed such a one for which a mandamus will he on the prosecutor's Facts?

   3d. Can the adverse affidavits be admitted to contradict the prosecutor's Facts?

   4th. lf the adverse affidavits are admitted will they alter the case?

   As to the first objection--The prosecutor must shew a good title, or he must tail on his own shewing. By the rules of the church the parson must be orainrd. By Gebhart's deposition he must be a member of the synod; and it is not proved that the prosecutor was neither ordained or of the synod. It is only stated that the minister is considered as having an interest for life; not positively that he has an interest for life.. There is a difference between mandamus to restore and to admit.--3 T: R. 575.

   As to the second objection--A mandamus only lies to restore a public officer; where it only relates to private things, the party is left to his ordinary remedy, except in cases founded on charters --T. R. 404; 3 Bac. Ab. 528, 531, 532, as to charters; as to public officers, Comb. 41; 3 Bac. Ab. 532; Comb. 133; 1 Stra. 58; Sty. 457; Vin. tit. mandamus, 185; 2 Sid. 40, 169; 3 Lev, 309; 3 Mod. 332; 1 Shower, 217; 2 Sid. 112; 3 1 Bac. Ab. 529, 530; 2 T. R. 183, (Note;) 2 Barnd. 398. From all these cases it appears that if the function is not of a public nature, a mandamus does not lie. Religion is not a public establishment. 2 Burr. 1043; 3 Ib. 1265; 1 T.R. 404; 2BI. Com. 22; Co. Lit. 344a; 3 Bac. Ab. 532; 3 T. R. 575; Wils. 15; Esp. 665; T. R. 133, 331, 425; 4 Ib. 125; I Bl. Com. 387; Cowp. 523.

   As to the third objection--In all cases of mandamus to admit, restore, &c. adverse affidavits have been received, and the very term seems to import that they are contradictory. The rule in such cases is this; in cases where the prosecutor's affidavits state a clear case, and the adversary affidavits only make it doubtful, in such case a mandamus goes to try the right, but not where the adversary affidavits make it clear--Bull. N. P. 200; Esp. 670, 671; 1 Wils. 11; 2 T. R. 183.

   As to the fourth objections These affidavits most expressly contradict the prosecutor's case in the whole--They state a power of removal in the congregation ad libitum, and that they have removed. 2 T.R.. 197; 1 Stra. 115, 674; 3 Bac. Ab. 540.

   Martin (Attorney-General,) and Pinkney, in support of the rule, contended that the prosecutor had shown himself entitled to the writ, that he was entitled to temporal rights, that the adverse affidavits could not negative the facts stated in the prosecutor's case, and then if the mandamus were refused the prosecutor would be without remedy. 3 Burr. 1045; 2 Stra. 797, 896 2 Burr. 1043; 1 T. R. 333; 2 Ib. 185; Say. Rep. 39, 40; 3 Burr. 1266; T. R. 331.

CHASE, J. [May Term, 1796,] delivered the following opinion. This is a motion to shew cause why a writ of mandamus.  should not issue, commanding the defendants to restore the Reverend William Runkel into the place and function of minister of the congregation of the German or High Dutch Reformed Christian Church in Frederic-Town.

(449) At a former sitting, when the Court was full, several questions of law, arising under this motion, were very fully and ably discussed, and the Court
 were then prepared to deliver their judgment, and recommended to the parties to try the right in a feigned issue, with the view that a decision might take place in an easy and expeditious way, and with less expense to the parties; and that peace, good will and harmony, might be the sooner restored in the congregation; and not from any reluctance to decide the case before them. The recommendation of the Court having tailed, I shall now endeavor to pronounce that judgment, in which the Judges unanimously concurred upon freely conferring together, and interchanging their sentiments.

   The writ of mandamus a prerogative writ, and grantable where the public justice of the State is concerned, and commands the execution of an act where otherwise justice would be obstructed--3 Bac. Ab. 527. It is denominated a prerogative writ, because the king, being the fountain of justice, it is interposed by his authority, transferred to the Court of King's Bench, to prevent disorder, by a failure of justice, where the law has established no specific remedy, and where in justice and good government there ought to be one --3 .Burr. 1267. It is a writ of right, and lies where there is a right to execute an office, perform a service, or exercise a franchise, and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy--3 Burr 1266. It is the true specific remedy to restore a person wrongfully dispossessed of an office or function which draws after it temporal rights 2 Burr. 1045.

   The Court of Kings Bench having a. superintending power over interior Courts of jurisdictions, may and of right ought, to interfere to supply a remedy when the ordinary forms of proceeding' are inadequate to the attainment of justice in matters of public concern--3 Bac. Ab. 529, 530. The position that this Court is invested with similar powers, is generally admitted, and the decisions have invariably conformed to it; and whence the inference is plainly deducible, that this Court may, and of right ought, for the sake of justice, to interpose in a summary way to supply a remedy where, for the want of a specific one, there would otherwise be a failure of justice.

(450)   It has been held to lie to restore a town clerk--a recorder---clerk of the peace--the steward of a Court leet -- an attorney -- a church-warden -- sexton -- parish clerk -- schoolmaster -- constable -- lecturers -- scavengers &c.-- 3 Ba. Ab. 530. The curate of a chapel -- 2 Burr 1044 And since the Act of Toleration, to admit an endowed Protestant dissenter.

   Thus much being premised, a foundation is laid for the opinion of the Court in this case.

   Religion is of general and public concern, and on its support depend, in great measure, the peace and good order of government, the safety and happiness of the people. By our form of government, the Christian religion is the established religion; and all sects and denominations of Christians are placed upon the same equal footing, and are equally entitled to protection in their religious liberty.

   The principles of the Christian religion cannot be diffused, and its doctrines generally propagated, without places of public worship and teachers and ministers, to explain the Scriptures to the people, and to enforce an observance of the precepts of religion by their preaching and living. And the pastors, teachers and ministers, of every denomination of Christians, are equally entitled to the protection of ,the law, and to the enjoyment of their religious and temporal rights. And the Court are of opinion, that every endowed minister, of any sect or denomination of Christians, who has been wrongfully dispossessed of his pulpit, is entitled to the writ of mandamus to be restored to his function, and the temporal rights with which it is endowed.  

 

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   As to the point, whether the Rev. Mr. Runkcel, has shewed sufficient evidence of his right to preach in the church of the German Reformed Congregation in Frederick-Town: It is admitted that prima face evidence is sufficient to induce the Court to grant the mandamus, and the authorities cited unquestionably prove the law to be so. Prima face evidence is that kind of testimony which establishes a presumption of right and is sufficient legal proof It is not conclusive evidence, but is liable to be repelled or defeated by contrary proof. The proof in this case is, that according to the mode of electing a minister by the constitution of this church, the congregation applied to the Synod of Pennsylvania for a minister to supply the place of Mr. Henop who had resigned or left the church. That the Synod recommended the Reverend Mr. Runkel to the congregation, who approved of him, and he had a vocation from the elders, and was received and inducted, and was put in possession of the church and parsonage-house, and became entitled to the emoluments allowed him, by Contract with the elders, and was in possession about eight years, and until the time he was forcibly dispossessed by the defendants. According to the proof; the synod is composed of ministers of the High Dutch Reformed Congregation in the United States of America; and no person can be appointed as a preacher but one of the synod.

(451) And by one of the articles of the church no person can be appointed minister who is not regularly ordained. It is objected, this evidence is not sufficient, because it is not proved Mr. Runkel was a member of the synod, nor is it proved that he was regularly ordained.

   The Court are of opinion, that this is strong prima facie evidence, and that it is necessary to be inferred from the facts proved, that Mr. Runkel was a member of the synod and regularly ordained. The recommendation of Mr. Runkel by the synod; the approbation of the congregation, the vocation of Mr. Runkel by the church; his induction and quiet possession for eight years, and no objection being made to him by the congregation for want of these qualification, is very strong prima facie evidence, and afford a sufficient ground to warrant the Court in presuming these facts, and that the right is in him. The office or function of minister must be endowed, or a mandamus to restore Can not be granted. Endowment does not necessarily mean that land and tithes must be annexed to the living in exclusion of any other provision or means of support; but a stipend, rents, emoluments and advantages, of any kind, given and secured to the minister during the time he shall officiate as minister of such church or meeting house, as a compensation for his services, is an endowment.

   In this case there are temporal rights or emoluments annexed to this living. In the vocation, which is the appointment or the Reverend Mr. Runkel to his function as minister of this meeting-house, there is a contract made by the elders with him, to furnish him with a dwelling-house (rent-free,) eighteen cords of wood, and 80 lb current money annually, for officiating. The right to receive these emoluments commenced with his appointment, and he was to enjoy them during the time he should officiate as minister in that church. The right to the function: as the substance, draws to it these emoluments as appurtenant thereto; for as long as lie officiates as minister of that church, he will have a claim on the elders, who signed the vocation and contract for the emoluments stipulated to be provided by them to the Reverend Mr. Runkel, and  they are personally responsible to him for them; and they must depend on the engagement or voluntary subscriptions of the congregation for their reimbursement.

   As to the parsonage-house, it is admitted Mr. Runkel was put in possession as minister, and that he has ever since remained in possession. The ground on which the parsonage-house is erected, was conveyed to trustees, (since dead,) without words of limitation, lot the use of the congregation.

(452) Congregation means an assemblage or union of persons in society for some religious purpose, to unite in the public worship of their God, in such manner as they deem most acceptable to him; and they have actually appropriated this ground to the use of their minister, who retains possession of it under such appropriation. The congregation have all equitable claim to this ground, and such a right as a, Court of Chancery would carry into effect.

   Here then, is a function with emoluments, and unless the Court interpose and grant a mandamus to restore him to his pulpit and his use of the church, he will be without any specific remedy to recover the pulpit, and without remedy to recover the emoluments stipulated to be furnished, for the emoluments are annexed and appurtenant to the function, and unless he is restored to it he will be without remedy to recover them.

   As to the adversary affidavits; the Court are of opinion that as sufficient prima face evidence has been produced by the prosecutor in support of his claim and right to his function as minister of this church, they cannot try the merits upon affidavit. And the case of  King vs. Blooer, is full and decisive to this purpose, and was not decided on the ground of the refusal of Blooer to try the right in a feigned issue. The evidence in the ease of The King vs. Blooer, produced by the prosecutor, was not so strong and satisfactory as the evidence in this case, Evans, who claimed the nominalization of the curate, only swears that he believes he has the right; of nomination; and Langley had been in possession only eleven weeks he, and had a license.

   The proof in the ease before the Court is, that the synod had the right to recommend, a minister to the congregation; that they did recommend Mr. Runlkel, who was approved by the congregation; had a vocation from the elders, was inducted and put in possession of the church and parsonage-house, and has been in possession and in the exercise of his function upwards of eight years, and until dispossessed by force and violence; and this done pursuant to the mode of appointment established by the church government of the congregation, and no objection ever made to Mr. Runkel, by the congregation, as not being a minister of the synod, or that he was not regularly ordained.

   Adversary or contradictory affidavits are not considered by the Court, for the following reasons:

   The mandamus is summary proceeding, introduced for the advancement of justice. The evidence is taken ex parte without an opportunity to cross examine; no suppletory or additional evidence is admissible.

(453) The persons opposed to the motion come prepared to combat the proof of the prosecutor, who has no opportunity of cross-examining or impeaching such proof by giving further evidence. And where the evidence is contradictory, the weight of it, one way or another may depend on the credit of witnesses; and it is the province of the jury to decide facts and to determine on the credit of witnesses; and by granting the mandamus, the decision of facts will be referred to the proper tribunal, and the right in litigation tried in a constitutional and legal way. But should the mandamus be refused, the prosecutor is without remedy.

THE COURT ordered a mandamus to issue. The writ accordingly issued, vide 2 Har. Ent. 704. And on the return day of the writ, October, 1799,) Martin, (Attorney-General,) and Cooke, for the prosecutor, moved the Court for a. rule on the defendants to shew cause why a return had not been made to the writ. They filed affidavits of the service of true copies of the writ on ll the defendants except two, who had removed out of the State.

Key and Shaa:ff, for the defendants, objected, that it did not appear from the affidavits of the service of the writ that notice was given to each of the defendants, and also that an office copy of the writ was not served on each of the defendants.

THE COURT granted the rule on all the defendants, except the two on whom there had  been no service of the writ, to return the writ by the 22d of October, then instant. On which day the prosecutor, by his counsel, filed affidavits of services of attested copies of the rule on each of the defendants.

   The defendants made a. return to the writ, which see, ante..

Martin, (Attorney-General,) and Cook, moved the Court for a peremptory mandamus, which motion was continued under curia, adv. vult. until the present term, (October, 1799.)

Harper, in Favor of the motion for a  peremptory mandamus. The return made to the mandamus, is sufficient for uncertainty. The question is, whether the cause for not restoring is sufficient. The return does not state that Mr. Runkel had notice, nor does it stale that the congregation had notice. He raised Two objections to the return -- 1st. That the majority is not named; and 2dly. That the congregation had no notice.

(454)  1st Objection.--Every matter of substance ought to be set forth which in this case is not sufficiently done; and the party ought to have an opportunity of controverting the allegations. Cites Com. tit. Pleadings, 532; 5 Com. 43, 49, 70; Doug. 214; Salk. 433; 5 Mod. 11; Doug. 158; 2 .Burr. 731; Salk.. 430; 1. Show. 282; 6 Mod. 309; I Stra. 64; 2 Ld. Ray. 1566; 5 Mod. 288, 289; Doug. I81. "The majority" is too general an allegation; it should be stated who were the majority, that the party might have an opportunity of knowing.

   2nd Objection.--It cannot be said the congregation met when the bare majority met. Notice is necessary in cases of corporations. Cited 2 Burr. 723, 743; Stra. 1051, 385, 115. The return does not: state that the party had notice, which is essentially necessity where he is to be deprived of his fairest rights.

Shaaff, for the defendant, contended:

1st. That the return is a good one.
2ndly. That even if the return is not good on the face of it, the Court will not grant a peremptory writ.
3rdly. That the Court can not quash, the return, because the case is not before them.

   As to the first. The return states, that a majority of the members, at their sole will and pleasure, may elect: a miinister; that they did elect Mr. Runkel, the prosecutor. That a, majority of the members may at ally time, at their sole will, &c. without cause remove. That a majority of the members, and the defendants being a part, met and removed the prosecutor. These facts being stated on this return must be taken as true; and the party compelled to bring this action. 3 Blk. Com. 111; 11 Co. 99; Stra. 115; 4 Com. Dig. 213.

   As to the second. It does not universally follow that: on quashing a return, there will be peremptory mandamus. Comb. 213; Cowp. 523. It would be nugatory to grant such a writ, because those to whom directed could not do what is required.

(456) THE COURT ordered a preemptory mandamus. Vide the writ, 2 Harr. Ent. 706

END
 

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