The decisions in England on this question have been entirely under the statute of 9 Anne, chap. 20, § 4, for they have held that informations in the nature of quo warranto could only issue in relation to such public offices as are mentioned in the preamble to the first section of it, viz.: "the offices of mayors, bailiffs, portreeves and other offices within cities, towns corporate, boroughs and places within that part of Great Britain called England and Wales;" and it was therefore only such offices and franchises as were originally derived from the king, and were of a political and public nature, that they considered subject to their jurisdiction under the statute. Queen v. Mouseley, 8 Ad. El., 946; King v. Ogden, 10 Barn. Cross., 230. But by the same terms the operation of the statute was limited to England and Wales, and was therefore never in force in this or any other of their American colonies; and yet the fourth section of it contains an express recognition of the fact that such proceedings in cases of information in the nature of a quo warranto had been usual before the passage of the statute. And that may have been a less restricted practice than was afterwards sanctioned by the statute, and that may also have been the information and the practice to which our early colonial statute had reference, for it was passed only about twenty years after the statute of Anne. But the counsel for the defendants has distinctly admitted that a different rule prevails in the States of this country and in this State in regard to it, and that it may be maintained here for the usurpation of a franchise or a corporate office of a private corporation, such as a railroad, a banking, an insurance, or a turnpike company incorporated by the legislature; and the American cases are abundant to sustain his concession on that point; he will find no such case, however, in England. The nearest approach to it, perhaps, is the case of The King v. Nicholson et al., 1 Strange, 299, in which it appeared that by a private act of Parliament for enlarging and *Page 382 regulating the port of Whitehaven, several persons were appointed trustees, and a power was given to them to elect others upon vacancies occurring in their number by death or otherwise; the defendants took upon themselves to act as trustees without such an election, and upon a motion for an information in the nature of a quo warranto against them, it was objected by their counsel that the court never granted these informations, but in cases where there was a usurpation upon some franchise of the crown, whereas in this case the king alone could not grant such powers, and, therefore, they constituted no prior franchise of the crown. But the court granted the motion and said that informations had been constantly granted when any new jurisdiction or public trust was exercised without authority. That case occurred eight or nine years after the passage of the statute of 9 Anne, and although it would not seem to fall within the preamble of it, or within the principle of the later rulings in regard to it, and the trust was conferred on the original trustees by a private act of Parliament, it was nevertheless to be considered a public trust, because the subject of it was the enlargement and regulation of a public harbor in the kingdom.
I now come to the consideration of the corporate offices and franchise alleged to have been usurped in this case. The statute of this State for the incorporation of trustees to take charge of the temporalities of religious societies or congregations of Christians was originally passed nearly a hundred and forty years ago, and has always been regarded as a general and public statute, and our courts have taken judicial notice of it as such. Now, a religious society or congregation incorporated under the statute is purely a secular institution like any other civil corporation created by the legislature for business purposes simply, to take, hold and transmit in perpetuity the legal title and possession of all the property, real and personal, of such religious society or congregation, and has nothing whatever to do with the spiritual, religious or ecclesiastical affairs or concerns of it, and as such they have nothing to do with the control or management of the church or congregation in the great object for which it was founded, the worship of God and the salvation of the souls of *Page 383 men. But one of their first and highest duties under the statute, after they have thus been incorporated, is to see that their corporate existence is properly continued and perpetuated according to the design of the statute, by the due and regular election of their successors in office in accordance with the rules and regulations of the society adopted for that purpose. The object of the statute in requiring their incorporation to be recorded in the office of the recorder of deeds in the county was to give the greatest practicable publicity to it, and in this way to furnish record evidence of it accessible to all, and when we consider that in these corporations is vested the legal title and possession and the care and management of all the property, real and personal, of their respective churches or congregations, and that no one can sue or be sued in any action at law for or concerning it, or any part of it, but the corporation by its name, and that such societies are already very numerous and are constantly increasing in the State, and continue from generation to generation, and rarely ever die, although the individual members of them are continually changing, and could not securely hold the immense amount of real estate alone which they now enjoy in the aggregate throughout this State without the intervention of such a body politic having perpetual succession, we can readily perceive the wisdom and propriety of its enactment for those strictly legal and equitable objects. And viewed in this aspect as a body politic incorporated for the sole purpose of taking charge of their real and personal property, and the conduct and management of their temporal affairs merely, why should such a corporation differ in legal principle from any other private corporation created by the legislature for a similar purpose, such as a railroad, a turnpike, a bank, or an insurance company, or any one of the many municipal corporations of the towns and villages in the State made by the legislature in the last few years And yet counsel for the defendants has distinctly admitted in his argument that an information in the nature of a quo warranto can be maintained here for the usurpation of a corporate office or franchise in any such corporation as I have just mentioned.
The preamble to the original act clearly discloses that it was *Page 384 the design of the legislature to secure the churches and the real estate to the denominations of Christians which had procured the land and erected them, and that they should continue to own and control them by a good and available title in a court of law; and although it was enacted, as I have before remarked, nearly a hundred and forty years ago, it has never been repealed, but has been re-enacted without essential alteration in the code both of 1829 and of 1852. It would, therefore, seem to be altogether too late now to raise the question in our courts whether such a religious society or congregation of Christians constituting a corporation aggregate in law has no action or no legal emedy or relief for the unlawful seizure of all its property, real and personal, and the. entire usurpation of its corporate franchise, or of any of the offices existing in the society for the administration of its temporal affairs and concerns merely, as is solely the case with the offices of wardens and vestrymen in the religious society now in question. By the constitution and canons of the Protestant Episcopal Church they have charge of the temporal concerns of their respective churches, among which is that of the oversight of the temporal government of it, attending to the annual elections of the vestry and employing ministers, etc., and by virtue of the same the wardens and vestrymen are to be elected by a plurality of votes of the members of the congregation duly qualified to vote for them by another canon of the church, on Easter Monday in each and every year, and who are to continue in office for one year, or until their successors in office shall be duly elected. Now, it is apparent, if the entire office of the vestry in one of these churches may be usurped without impunity, and without any legal remedy whatever to recover it on the part of those lawfully entitled to it, and who have been wrongfully dispossessed of it, the congregation and the denomination may as effectually and completely lose the church and all its property, and all the temporal uses and benefits of the incorporated trust created by the statute, as if the same were seized and wrested from their possession and control of the incorporated trustees themselves by an equal number of *Page 385 absolute trespassers, while the former would be no less at variance with the design of the statute than the latter would be.
But we are not without American cases of high authority directly on the point presented in this case, and the first I shall refer to is, Commonwealth v. Woelper and Others, 3 S. R., 29, which arose in the adjoining State of Pennsylvania several years before they had any statute in that State in relation to informations in the nature of a quo warranto, and no other law in regard to them than the common law which they had derived from England, and which was very similar to the case now before us, heard at nisi prius before Gibson, J., and verdict rendered for the Commonwealth, and afterwards on a motion for a new trial before Tilghman, C. J., Yeates, J., and Gibson, J., it was refused, the court being unanimous. It was an information in the nature of a quo warranto for usurping the office of vestryman of the corporation called The Ministers, Vestrymen, and Church Wardens of the German Lutheran Congregation in and near the city of Philadelphia, in the State of Pennsylvania. The case of the Commonwealth v. Arrison and Others, 15 S. R., 127, arose several years later, but also before any statute had been enacted in that State, and which was also in principle the same as the case now before the court. It was also on information, in the nature of a quo warranto against the defendants for acting as the trustees of an incorporated religious society in the city of Philadelphia. The case was fully and elaborately argued, by able counsel on both sides, and was as maturely considered in a very able opinion of the court delivered by Tilghman, C. J., that the information in such a case would lie in that State, although he admits he could find no case of the kind either to sanction or condemn it in England. And this last case has been long since fully recognized, and approved by the court in that State in the case of the Commonwealth v. Graham,64 Pa., 339. State v. Ferris, 45 Mo., 183, is also an authority on this point.
And when we consider that the ancient and original writ of quo warranto, which had been superseded by an information in the nature of it prior to the statute of 9 Anne, was the peculiar and appropriate remedy for the usurpation of a royal franchise, *Page 386 and was a prerogative writ which, orginally, issued only at the suit of the king himself to vindicate his prerogative against such encroachments or usurpations, and that it was even doubted by the legal profession in England, down to a comparatively recent period, that an information in the nature of it would not lie for the usurpation of a franchise granted by a public act of parliament, although it was the act of the king, as well as of parliament, we cannot fail at once to perceive that no such royal or executive attribute ever could have attached to the remedy as it was adopted in any of the colonies or States in this country, because, from the beginning, the legislature here had the sole and exclusive power of granting corporate franchises or creating corporate officers; and therefore, it neither has been, nor should it be, confined in this country to the same class of cases to which it is now limited in that country under the statute of Anne.
As this, then, is an incorporated trust, created by a general act of the legislature to hold the property, real and personal of the said religious societies or congregation, to take charge of its business affairs and temporal concerns merely, and as by the law and practice of this church, and churches of that denomination, it is the province and duty of the vestry to attend to the temporal concerns of it, and, among these, to see that the annual elections of their own bodies are duly attended to, and, are conducted in a lawful and proper maimer, and as their allegation is that these important temporal offices, thus held by them in the church and in the said corporation, has been usurped by the defendants, I must say, after the best consideration which I have been able to give to the subject, that I am satisfied that it is in the power and discretion of the court to grant an information in the nature of a quo warranto in this case, for the purpose of redressing the temporal injury and usurpation alleged by the relators, and that the court ought to grant it.
As the case was now before us on a plea to the jurisdiction of the court, the judgment should be respondeat ouster.
The plea before withdrawn was then re-entered in behalf of the defendant, and the next question that was presented in the case *Page 387 was, whether it should be tried on the issue now joined before the court, with or without the intervention of a jury.
A. Harrington for the plaintiff. The counsel for the State were willing that either mode should be adopted as might seem best to the court, but this is not a case for a jury trial necessarily, for a trial by jury is not a right of either party in a case of this kind, but it is a matter resting entirely in the discretion of the court, is grantable ex gratia merely, and the court may if they see proper, direct an issue of fact to be framed and tried before a jury in such a case, for its own information on any question or questions of fact involved in it. High's Extraordinary Legal Remedies, § 740;4 Wis., 567; 26 Ark., 281; 5 Kan., 213; 53 Mo., 97; 55 Barb., 344; 9 East, 252.
The Court stopped Whitely in reply and directed a jury to be empanelled to try the case.
On the trial before the jury the original incorporation of the trustees of the church in question pursuant to the provision of the statute, and also the constitution and canons of the Protestant Episcopal Church in the diocese of Delaware prescribing the time, place and manner of holding annual elections of wardens and vestrymen, and the qualifications of voters therefor at such elections, were put in evidence on behalf of the State, and from which it appeared that Easter Monday in every year was the day thereby appointed for the annual election of them, and that they were to continue in office until the Easter Monday ensuing, or until their successors should be duly elected. And it was also proved that the relators had been duly elected the wardens and vestrymen of it on Easter Monday, 1880, and had performed the duties of their offices up to the time when the alleged usurpation of it by the defendants occurred. Dissension had, however, in the meantime occurred between them and the rector of the church, which resulted in an application by them and a large number of the communicants of the church to the bishop of the diocese that his relations to the church as rector of it might be terminated, and which on consideration by him and *Page 388 the standing committee of the diocese pursuant to the canon of the church in such cases, was favorably entertained, and he was accordingly duly notified by the bishop that his relations to the church as rector of it would cease at midnight on the following Easter Sunday, April 17, 1881. Notice of the annual election of wardens and vestrymen at the church on the next day, Easter Monday, April 18, 1881, had in the meanwhile been given in the usual manner preceding such elections in the church; and by 10 o'clock on that day a full meeting of the congregation had assembled in the church for that purpose, all the wardens and vestrymen being present. A table and chair by their direction had been placed below the chancel for the accommodation of the chairman of the meeting and the voters at the election, but the rector walked up and stood before the chair and between it and the table, as soon as the secretary of the vestry had called the meeting to order for the purpose of proceeding to the election, and had made and put the motion on its being seconded by another vestryman, and pronounced it carried that Capt. Charles Corbitt, should be chairman of the meeting, who then immediately arose from the pew in which he was seated, and proceeded towards the chair and table to take his seat in accordance with it, but on his approaching them the rector still standing retained such a position between him and them that he was unable to take the chair without rudely forcing him from it which he forebore to do out of respect for the place and the congregation assembled, but remained also standing near the chair and table facing the congregation, and immediately announced that he had been elected chairman of the meeting and had accepted the position, and intended to be chairman of it. A motion was then made and seconded that Mr. Charles G. Ash should be the secretary of the meeting which was put to vote by the chairman, and was pronounced carried by him. The rector who was then standing behind him exclaimed "this is illegal," when he, the chairman, drew from his pocket and commenced reading to the meeting a reply received from the bishop to certain inquiries addressed to him by the vestry in regard to the proper persons to hold the annual election of wardens and vestrymen, to judge and decide *Page 389 the qualification of voters, and as to the right of the members of the parish to choose the chairman to preside at a parish meeting, whereupon a great uproar arose on the part of the rector's adherents in the meeting, and the disorder and tumult only increased as he persisted in his efforts to read it loud enough to be heard, until the rector abruptly took the chair at the table and called aloud on the meeting to come up and vote quick, when a number of his party hurried forward in a body and in great confusion to the table, and as rapidly as they could, deposited their tickets in the box which had been improvised for the emergency, and in a few moments the work of voting was over on their part, the residue of the meeting abstaining from any participation in it. No list of voters was called by any one, and none was taken of the names of those who voted, and the votes with the assistance of the rector were put in the box so fast and in such confusion that it was impossible to tell who voted. In the crowd at the table and around the box there were men, women and children, and the treasurer of the church whose duty it was to keep the list of all the members of it in a book testified that not more than nine of them who voted were entitled to vote for wardens and vestrymen of it. Two of the number then took the box to a retired part of the room, and soon afterwards returned and reported that they had counted the votes in it, and that the defendants, naming them, had been elected wardens and vestrymen of the church, the first-named as the senior, and the second as the junior warden of it. No motion was made or put by any one that the rector should be chairman of the meeting or the presiding officer of the election. The rector had now stepped aside from his position in front of the chair and Mr. Corbitt had for the first time taken his seat in it.
After the voting had ceased, those taking part in it returned to their seats in the church and a lull ensued, of which the chairman, Mr. Corbitt, took advantage to state that the object of the meeting to elect wardens and vestrymen of the church for the year commencing that day, consisting of eight in number, two of whom should be designated as the wardens of it on their tickets, and that an election was then in order, and a member of *Page 390 the church moved that the meeting proceed to the election which was seconded and adopted, and thereupon on motion a committee of two members was appointed to hold and conduct it in accordance with the usual practice on such occasions. The usual election box of the church was produced and placed on the table, a complete list of the names of the members of the congregation entitled to vote at such election had been carefully prepared for the occasion by the treasurer and secretary of the church, from which, as the names were called out by one of the committee, the voters stepped up in succession to the table and handed one of them their tickets which he deposited in the box, whilst the other member of the committee took down their names on a list of paper as they voted and which, with the tickets voted, was at the close of election carefully enclosed in the box and produced in evidence on the trial of the case in court; and not less than twenty-six of the qualified voters of the congregation who so voted on that day, were present as witnesses at the trial and severally testified that they each voted on that occasion for the relators, respectively naming them for wardens and vestrymen of the church for the current year. Before, however, the voting at this election had entirely closed there were further efforts made by the opposing party by tumult and disorder and by loud noises to stop the progress of it, but finding that was not sufficient for the purpose, one of the two ministers present first attempted to interrupt the proceeding by making a public speech to the meeting, but finding that to fail also, he finally entered the chancel of the church and commenced the morning service while the voting was still going on, but which was at once suspended as soon as it was commenced, and so remained until it was closed by the rector himself, who found it necessary to take the place of the other in consequence of his memory of it having failed him before he had got through with it; those engaged in the election, however, then going on, took no part in the service, but remained entirely quiescent until it was closed, when they resumed the proceedings and soon after peaceably concluded it by ascertaining the number and result of the votes cast, and by formally announcing in accordance therewith that the relators *Page 391 had been elected wardens and vestrymen of the church for one year from that date.
It was also in evidence before the jury on behalf of the State that it is the usual practice in such churches for the vestry to appoint a committee of the members of them to hold the annual elections of their wardens and vestrymen who are to judge of the qualifications of voters for them; that the members of a parish present at a parish meeting appoint the chairman and other officers of it, and in meetings of the vestry the rector when present is ex officio chairman of them, but he is not so in parish meetings, or in annual meetings of the members of the church held for the election of wardens and vestrymen; and by the constitution and canons of the church no one is entitled to vote at said election who is not a pew or seatholder or renter in the church, or annual subscriber to the support of the minister of it, or an adult male communicant of the same; and by another canon of it, it is made the duty of the vestry to take charge of the property of the church, to regulate all its temporal concerns and to elect and call a minister and to provide for his maintenance, it being understood always that the spiritual concerns of the church are under the exclusive direction of the minister in subordination to the ecclesiastical authority and laws of the diocese. It was also proved that the defendants were, and had been ever since, in possession of the church and the rectory and its property, and are still holding services therein with the rector referred to, and claim to be still the rightful and lawful wardens, vestrymen and legal corporators and trustees of it under the act of Assembly in such case made and provided, and had on demand refused to deliver and surrender the same to the said relators.
Whitely, for the defendants, on the closing of the testimony for the State, submitted a motion for a nonsuit on the ground that as the relators and their party had refused to vote in the first election held in the church that day for wardens and vestrymen, and according to their own evidence there were some legal votes, at least, seven legal votes cast in it, it was necessary that *Page 392 they should have participated in it to have any standing in court in order to contest that election, for by voluntarily abstaining from voting in it, when, as they claim, they had a large majority of the qualified voters with them and might have carried it, and elected their ticket in that election, they voluntarily allowed it to go against them by default.
The Court, however, declined to hear the counsel on the other side in reply, and remarked that there was not only evidence enough as far as they had gone on the part of the State to take the case to the jury, but so far it seemed to be nearly all one way, and the court was certainly not prepared now to say by what authority that election was even attempted to be held, to say nothing of the haste and disorder, confusion and illegality with which it was conducted, so far as the evidence now goes. Even if the rector had then been in full connection with the church, we should be at a loss to find by what authority he could assume to hold, as the presiding officer of it, such an election in the parish without the formality even of any election or the expression of any choice of him for the place by the parishioners assembled in the meeting for the purpose of holding such an election. We are willing, however, to hear all the material facts in the case, and any further evidence the defendants may have to disclose in it, and must therefore refuse the motion for a nonsuit.
Whitely then proceeded to call, and examine several witnesses for the defendant, without adding anything particularly material to the summary of the testimony already given, and at the conclusion of it stated to the court that he would respectfully decline to address the jury in the case.
The Court,