The petition as brought shows in effect that the supreme authority of the church rested in the congregation, and that the congregation had provided by its constitution that a board of deacons elected by the congregation, who together with the pastor constituted an executive committee, should hold and disburse the funds belonging to the church, and that the petitioners had been duly elected by the congregation as deacons; but that a board of elders appointed by the pastor had usurped the function of the duly elected deacons, by taking charge of the funds belonging to the church and refusing to permit the board of deacons to exercise its functions. We think that the rights of property are thus shown to be involved by the allegations of the petition; that the church is entitled to hold and expend its funds according to the methods and through the instrumentally constituted by it; and that the seizure of the church funds by unauthorized parties constitutes a conversion, irrespective of the manner of its expenditure. While it is not alleged that the funds were being dissipated or perverted for improper uses and purposes, such an allegation is unnecessary as against an alleged usurper of authority. Were the petition against persons duly constituted to hold and expend the funds, the rule would be different, and in such an event it would be necessary to show that the proper custodian was expending the funds for purposes "utterly variant from that to which it was originally devoted." Mack v. Kime, 129 Ga. 1, 21 (58 S.E. 193, 24 L.R.A. (N.S.) 675). Courts being extremely reluctant to interfere in the conduct of religious institutions, if the petition had shown that this case involved a controversy between factions of the church as to who represented the consensus of its supreme governing authority, we would be quick to hold that the controversy should be submitted to its own supreme authority for determination. So far as the petition shows, such is not the case, but according to the allegations the alleged usurpers do not pretend to be acting under any power conferred by the supreme authority of the church. *Page 401
As to the right and duty of deacons to protect the trust conferred upon them and assumed by them, see Bates v. Houston, 66 Ga. 198 and MoCluskey v. Rakestraw, 167 Ga. 199 (144 S.E. 761).
For the reasons above stated, and since the other grounds of the demurrer appear to be without merit, we are of the opinion that the court did not err in overruling the demurrer, and that its judgment should beAffirmed. All the Justices, concur, except Grice and Wyatt, JJ., who dissent.
No. 14946. SEPTEMBER 13, 1944. REHEARING DENIED OCTOBER 7, 1944. The following petition was filed in Floyd superior court: "The petition of J. T. Mitchell, M. M. Cole, and W. D. Fox, as members and deacons of the Calvary Independent Baptist Church, respectfully shows:
"1. That petitioners are members and deacons of the Calvary Independent Baptist Church, and were at all times herein complained of.
"2. That A. S. Hufstetler, John M. Kay, and D. S. Carlson, the defendants herein, are residents of said State and county.
"3. That the Calvary Independent Baptist Church was organized and chartered in the year 1938 as a Missionary Baptist Church, but was to be entirely independent of any church association or organization; and that all contributions for the building of a church edifice and persons joining the same was with that understanding, belief, and purpose.
"4. That said church, except as above stated, was to have the same discipline, rule, church government, and doctrine [as] the Missionary Baptist Church, and did so have until about the time herein complained of.
"5. That large sums of money [were] contributed for a church building, which was erected about said date and belongs to said church, and some six or seven hundred persons joined it as members.
"6. They show further that all officers of said church are elected at congregational meetings, and in no other way or manner.
"7. That under the rule, custom, and church law of the Missionary Baptist Church, there is no such office in said church as elder, and said Calvary Independent Baptist Church never had such an office.
"8. They show that except as reserved in the congregation, all *Page 402 questions and matters of doctrine, discipline, church government, and management thereof vests in a board of deacons.
"9. They show further that [the] constitution and rules of government of said church provide among other things: `Deacons. There shall be five deacons, qualified according to the Word of God, elected for three-year terms if they remain members in good standing, whose duties shall be: to assist the pastor in the ministerial needs of the congregation; to act in an advisory position to the pastor in all spiritual matters in the church; to form, with the pastor, an executive committee whose duties will be designated in the constitution. Executive Committee. The pastor and deacons shall constitute the executive committee. Section E. The pastor and deacons shall provide all pulpit supplies and special pulpit features. Section F. All other powers, and appropriation of all money, shall be vested in the executive committee consisting of the pastor and five deacons. . . Article V. Discipline. The discipline of the church being entirely entrusted to the pastor and deacons by the constitution, it shall be exercised according to the following principles,' etc.
"10. Petitioners show that in the month of September, 1943, at a regularly called church meeting of the congregation, they were duly elected deacons of said church, together with two others who have since left said church, and as they understand have affiliated with some other church.
"11. They show further that outside of the church building and lot on which it is located, . . said church received large sums of money from its members and persons attending its religious services, the amount of which is unknown to petitioners, but well known to the defendants.
"12. That shortly before said election, the defendants claim to have been appointed as elders for life in said church by the pastor thereof, and immediately assumed all of the functions and duties of the deacons in said church, although, as heretofore set forth, there is no such office in said church as elder, and all officers are elected in church meetings for a limited period of time.
"13. They show further that said pastor had no right or authority to name any such officers, or for any such period.
"14. That, as such, said defendants took charge of all money of said church and other property, except the real estate, title to *Page 403 which vests in trustees, and the same has been disbursed under their direction and appropriation.
"15. Petitioners show that, since their election as such, . . said defendants have refused to recognize them as such, and refuse to permit them to exercise the duties of their office, and continue to act in every capacity and exercise every right, authority, and duty of the board of deacons.
"16. That the defendant Hufstetler takes charge of all money contributed to the support of the church, and refuses to permit them to appropriate such money for the uses of the church as an executive committee, in accordance with the constitution and rules of said church.
"17. They show further that said defendants, claiming to be elders in said church, have announced that henceforth . . all persons seeking admission to membership in said church must appear before them as such elders, be questioned by them, and elected to membership in said church by them, or rejected by them — all of which petitioners say is contrary to law, rule, custom, and church government in a Missionary Baptist Church and they thereby depart from the organization and doctrine of said church, and are using the same contrary to the purpose for which said building was erected, and diverting the church property from the trust to which it has been devoted. In this connection, they further show that, by claiming to be elders in said church, they have entirely changed the discipline and church government, . . thereby diverting the church property from the trust to which it has been devoted and the purpose for which said funds were contributed to its building.
"18. They show further, since there is no such office in said church as elder, quo warranto proceedings will not lie to question their title thereto; and since said church is independent in nature and is not a subordinate part of any religious organization, no appeal can be taken to any such tribunal, and they can only resort to a court of equity for redress and to set up their rights in said matter and be granted relief in the premises.
"19. They show that said defendants are illegally disbursing the money of said church, and that the defendant A. S. Hufstetler is paying the same out without any appropriation of the executive committee, and will continue so to do if not restrained and enjoined from so doing. *Page 404
"20. That said defendants will continue to divert the church property from the trust to which it has been devoted, and will, as such alleged elders, continue to usurp all the powers, authority, and duties of the deacons to the exclusion of petitioners, if not restrained and enjoined, and interfere with your petitioners in the exercise of their powers, authority, and duties as such.
"Wherefore, petitioners pray:
"(a) That process issue requiring the defendants to be and appear at the next term of this court to answer this complaint.
"(b) That this court by suitable decree declare there is no such officer in said church as elder.
"(c) That it be decreed that said defendants hold no such office as elder in said church.
"(d) That said defendants be temporarily and permanently enjoined from exercising any power, authority, or duty in said church by reason of the claim of being an elder in said church.
"(e) That said defendants be temporarily and permanently restrained and enjoined from in any way diverting the church property from the purpose and trust to which it has been devoted, or in any way changing the discipline or government of said church so that it will be disciplined or governed by elders instead of deacons.
"(f) That said defendants be temporarily and permanently restrained and enjoined from in any way interfering with petitioners in their right, power, authority, or duty as deacons of said church.
"(g) That said defendants be temporarily and permanently restrained and enjoined from appropriating, paying out, or exercising any official right, power, or authority in reference to the funds of said church, or in any way interfering with the right, power, and authority of petitioners to act on the executive committee of said church which appropriates said money.
"(h) That they have such other and further relief as to the court may seem meet and proper."
The defendants Hufstetler and Carlson demurred to the petition on the following grounds, to wit: that no cause of action was shown; that the suit was brought against them personally and not in any official capacity; that there was a nonjoinder of parties, in that Calvary Independent Baptist Church, which is alleged to be *Page 405 a chartered institution, was not made a party, nor served. They demurred specially to several paragraphs of the petition. On April 27, 1944, the court overruled the demurrer, and Hufstetler and Carlson excepted.
The defendants in error filed a motion to dismiss the writ of error, which in substance was as follows: As appears from the record now before this court, at the conclusion of the hearing on the demurrer before the trial court, an agreement was entered into between the parties, which agreement, as stated in the court's order of that date, to wit, April 27, 1944, was that a congregational meeting of the Calvary Independent Baptist Church be held, to be presided over by the Honorable J. Dean Owens at such time as may be designated by him, and at said meeting such constitution, by-laws, or rules may be drafted and passed for the government and conduct of said church as they may see fit, and that thereafter such officers as may be provided for in said constitution or by-laws be elected or selected as provided for therein. On May 1, 1944, the judge entered an amendment to his order of April 27, 1944, wherein he directed that the parties plaintiff and parties defendant appear before the said J. Dean Owens in the superior courtroom on May 5, 1944, and there present to him such evidence as the parties may have in their possession as to the complete roll of the church in order that it may be there determined by the said Owens in accordance with the court's order as to who are members of said church entitled to vote at said election; and that the said Mr. Owens was authorized to promulgate and define such rules and regulations with reference to the holding of said election and the balloting therein as he might deem advisable; also that parties to the litigation, or any members of said church, might at said hearing on May 5, 1944, present in writing to the said Owens a proposed constitution and by-laws of said church, and as between the parties to this litigation such proposals at said time would be the proposal by them for adoption at the regular meeting, except that amendments might be made thereto at the regular meeting in proper parliamentary procedure.
The report of said J. Dean Owens, approved by the court, was to the effect that at the meeting of the congregation, held in accordance with the court's orders, a constitution and by-laws were adopted by a vote of all members present except two, and that the *Page 406 plaintiffs were elected as deacons. In their motion to dismiss the writ of error, the movants contend that, by reason of said meeting in accordance with the court's orders, the election, and the court's order approving the same, there are no questions for determination by this court.