The following opinion on rehearing was filed June 22, 1905. Former judgment vacated and action dismissed:
Ames, 0.With an exception disclosed by the following discussion, the former opinion, ante, p. 463, contains a sufficiently accurate and ample exposition of the record in this case, and its reproduction here is not requisite. - The authorities cited in that opinion seem to ns also to suffice for the disposition of the action, although the conclusion we draw from them is the exact opposite of that there reached. The plaintiff styles himself in the title to his petition, and elsewhere in that document, “as bishop of the Roman Catholic church of the diocese of Lincoln,” and seeks to recover in that capacity and not otherwise. The substance of the petition is that the defendant is, or was, a priest of the church and subject to the episcopal jurisdiction of the plaintiff, and that the plaintiff acting in his official capacity ordered the transfer of the defendant from Seward, Nebraska, where he had formerly been, ministering, to Red Cloud, Nebraska, for like service, and that the defendant persistently refusing to obey the order, the plaintiff first suspended him from his priestly func*488tions, and afterwards pronounced against him the so-called greater excommunication which, it is said, assumes to interdict him from all Christian fellowship both in this life and in the life to come. It is further alleged that the defendant still remains contumacious and refuses to desist from his ministrations at the so-called “mission” of Seward, which includes a parish church building and parsonage at Seward, in Seward county, and a parish church at Ulysses, in Butler county. The prayer is, in brief, that the defendant may be enjoined from a continuance of the conduct complained of, and, incidentally, that he be required to turn oyer and deliver to the plaintiff the real estate mentioned and certain chattels, and that the title thereto as against the defendant may be quieted in the plaintiff.
Where the title of the property, or any of it, now is, or what lawful authority the plaintiff has oyer or concerning it, the petition does not ayer. It is asserted by his counsel that he is a legal or equitable trustee of it, but the petition does not set forth any declaration of trust nor any facts or circumstances from which the law raises a constructive or resulting trust, so that the sole issue tendered by the petition is as to the spiritual or ecclesiastical status of the defendant as determined by the “laws, canoas, statutes, discipline, rules, regulations and customs of the Roman Catholic church.”
In the attitude of the pleader the matter of transference, or attempted transference, from one mission to another, has long ceased to be of importance, and it is manifest that if his contention is upheld, the defendant is not less disqualified from exercising the priestly office elsewhere than he is so at Seward and Ulysses. And it is solely because of his excommunication from the church that he is disqualified from exercising it there. So that the sole question which the court is asked to decide is, whether the defendant is catholic or recusant. All other relief sought by the petition is incidental to the determination of .that controversy, blow tire authorities cited in the *489former opinion are unanimous to the effect that this is a question with which the lay courts in this country will have nothing to do. The only discordant note is the dissenting opinion of Judges Lawrence and Sheldon in Chase v. Cheney, 58 Ill. 509, 11 Am. Rep. 95; but whoever will read the majority opinion in that case will be convinced, we think, that the, position of the remaining five judges, among whom wore Judges Breese and Mc-Allister, is invulnerable. The case did not differ essentially from that before us. An ecclesiastical court was proceeding, it was alleged irregularly and illegally, as regarded by church laws, to try and depose the plaintiff from the ministry so as to deprive him of the right to officiate or receive a salary as a clergyman of that denomination, and it was held that, inasmuch as the substantive question at issue was his status in the society, the courts would not interfere, although his salary and livelihood were dependent upon the decision of the church authorities.
The answer in this case begins by protesting that the ■petition does not state facts constituting a cause of action, and then proceeds by way of cross-petition to allege that the defendant, according to the laws, canons, statutes, rules, etc., of the Roman Catholic church has not been deprived of his status of a priest of that church, because his alleged excommunication, on account of the prejudice and disqualification of the bishop who pronounced the sentence, is void, and because it has been temporarily taken off or suspended by an appeal to a church court at Rome. “And that the said control, custody or administration of various properties of said Roman Catholic church, remaining always one and the same, is vested directly or indirectly, proximately or remotely, particularly or generally in all of the three following ecclesiastical persons in various degrees and at the same time, namely, in the pope, in the bishop, in the pastor, priest or rector of the said Roman Catholic church according to the laws, canons, statutes,” etc., of that church, and that he is, and *490lias be™, the pastor or rector of the mission of Seward according to tlie laws, canons, rules, etc., of said church, and therefore one of the persons entitled to the control thereof.
Whether, or not these averments mean anything to a churchman we confess ourselves unable to say, but they are certainly without meaning to the courts of the state. Like, the bishop, the defendant omits to say where the title to the property is, or to set forth any declaration of trust, or any facts or circumstances raising one by implication of law. But it is alleged that, in a prior suit, the defendant obtained from the district court a perpetual injunction restraining the bishop from again litigating any of the matters referred to, in the state courts, until the alleged appeal should be finally disposed of in the tribunal to Avhich it was made.
This injunction strikes us as not the least remarkable of the proceedings under review. Let it be supposed to be valid, as it ivas held to be by the former opinion, and let it be supposed, also, that it shall finally be determined upon its merits and the decision made of record and exemplified in a satisfactory manner; and one of two consequences will be inevitable: either the courts of this state will sit in review of it as upon appeal, or, more properly, certiorari, a thing which reason and the authorities are unanimous in saying they can not do, or else they will humbly and unhesitatingly register and enforce the decree or sentence of an independent and alien power, having its seat of spiritual and temporal sovereignty in the ancient city of Rome; a proceeding for which there is no precedent in the United States, nor, it is believed, in any court whose records are written in the English language. But if neither of these consequences is admitted, then the injunction has no practical end or aim, and deals with no controversy of which the courts of this state can rightfully take cognizance, and is wholly void. And so we esteem it to be.
The second opinion in Pounder v. Ashe, 44 Neb. 672, a *491leading case on the subject in this state, and which cites the principal leading cases thereon in other jurisdictions, so far from sustaining the former decision, is in direct conflict therewith. That case, as we gather from the somewhat meager statement of facts in the earlier decision in 36 Neb. 564, was begun by the trustees of a local protestant church society incorporated under the laws of this state. Their complaint was that no one could, according to the constitution and laws of their society, which derived their force and obligation from the statutes of the state, rightfully he employed or officiate, as pastor, in the property under their charge, unless he should be a member in good standing of their society and have the sanction and authority of a representative body, called in the opinion a conference. And it was alleged that Ashe had been expelled by the conference, but still persisted'in officiating in the church buildings against the wishes and protest of the plaintiffs, who were unable to prevent him so doing without the aid of the court. The defendant contended that the proceedings of the conference, at the time of his removal from the ministry, were upon charges not constituting an offense against the discipline of the society, and that the proceedings were so irregular and informal that the body trying him did not acquire jurisdiction of the subject matter. With this defense, this court, in an opinion by the then Chief Justice Harrison, expressly declined to have anything to do, quoting with approval the following from German Reformed Church v. Seibert, 3 Pa. St. 282:
“The decisions of ecclesiastical courts, like every other judicial tribunal, are final; as they are the best judges of Avhat constitutes an. offense against the word of God and the discipline of the church. Any other than those courts must be incompetent judges of matters of faith, discipline, and doctrine; and civil courts, if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction, would only involve themselves in a sea of uncertainty and doubt, which would do anything but improve either religion or good morals.”
*492The court considered that it sufficed for the disposition of the case that the body, whose authority the trustees of the title were hound to respect, and who were empowered by the constitution of the society to decide upon the qualifications of the defendant, had condemned him. Whether the condemnation was regular or irregular', or with or without jurisdiction, or just or unjust, the court refused to inquire; it was enough to know that the sentence was pronounced by a body to whom authority was committed by the society for pronouncing a like sentence in any case. The court, haying before it the persons recognized by law as haying or representing the legal title to the property in dispute, contented itself with protecting such persons in its peaceable possession and enjoyment for the uses to which it had been deyoted, and under the direction of the authorities designated by the articles of the association or discipline for its government. Such, we think, is the consensus of judicial opinion in this country.
The only recent case that has been brought to our attention that lends color or countenance to the former decision is that of Bonacum v. Harrington, 65 Neb. 831. The opinion in that case is seemingly somewhat self-contradictory. After haying at considerable length and with great vigor, clearness and learning expounded the doctrine that the civil courts will not review the proceedings of church tribunals, nor concern themselves with the discipline, modes of procedure or jurisdiction of such bodies, or attempt to decide upon the spiritual or ecclesiastical status of members, or alleged members, of religious societies, the opinion denied intervention to a local incorporation, or its legal representatives, being, seemingly, the only body having, under the laws of the state, the title or right of possession of the property in dispute, and proceeded to dispose of the case with sole reference to the ecclesiastical status of the defendant. According to our view, and to the nearly unanimous voice of the authorities, the persons denied intervention were not only proper and necessary, but the only indispensable parties plaintiff to the action. *493The opinion does indeed say that the property had, in that instance, been conveyed to the bishop, who was plaintiff, but the remark seems to have been casually made, and is not stated to have been founded upon the pleadings or evidence, and the fact was, apparently, regarded as of no importance or significance in the case.
It is assumed in the briefs and argument on both sides, and perhaps also in a vague way and extremely qualified sense, in the pleadings, that the title to the Seward and Ulysses property is in the Roman Catholic church. To our minds this is an inconceivable assumption. That church is not, in contemplation of the laws of this state, a corporation, or a partnership, or a legal entity of any sort., and does not claim so to be. It is a hierarchy composed of a series of clerical dignitaries of various ranks and degrees, scattered over the whole world, and deriving their power •and importance from the papal court at Rome, to whom they owe allegiance, and from whom they are liable at any time to suffer degradation. That court claims to be an independent sovereign power, a political as well as an ecclesiastical state having universal dominion, superior to all other principalities and powers of whatever description and wherever situated. As such it can acquire territorial rights in Nebraska, if at all, only with the consent of its legislature, by treaty with the government at Washington. The parties evidently regard the title to the property in dispute to be in the church, in the sense that it is subject to church jurisdiction and government, in much the same way as the ultimate title and eminent domain of all property within the territorial boundaries of the commonwealth are said to be in the state. The pleadings of both parties in this case proceed upon the assumption that the church tribunals, both local and foreign, have a jurisdiction of their own over church property, or property devoted to church uses, and over members of the catholic priesthood, concurrent with, but superior .to, that of the courts of the state, and that the whole duty of the latter, with respect to such matters, is to lend their aid for *494the carrying into execution the judgments and Sentences of the former. In former days, and in the mother country, such a pretense would have incurred the penalties of prcemunire, and the application for the injunction, instead of having been granted, would have been visited with swift and severe punishment for contempt of the ■ court to whom it should have been presented. In these days, such measures are not necessary or desirable, but the civil courts ought, nevertheless, jealously to guard their own dignity and prerogatives, lest precedent followed by precedent shall gradually encroach upon the domain of the civil law and revive the abuses of a bygone age.
It is recommended that the former decision of this court and the judgment of the district court be wholly reversed, vacated and set aside, and the cause remanded with directions that the action, both upon the petition and upon the cross-petition, be dismissed, each party to pay his own costs, but with out prejudice to the future litigation of the rights of either party, if either has any, under the laws of this state, to the property in dispute.
Letton and Oldham, CO., concur.By the Court: For the reasons stated in the foregoing opinion, it is ordered that the former decision of this court and the judgment of the district court be wholly reversed, vacated and set aside, and the cause remanded, with directions that the action, both upon the petition and upon the cross-petition, be dismissed, each party to pay his own costs, but without prejudice to the future litigation of the rights of either party, if either has any, under the laws of this state, to the property in dispute.
Judgment accordingly.