(concurring). A thorough study of the complaint, including the constitution and the articles of incorporation of the original Evangelical Lutheran Emmaus Church congregation of Ashley, North Dakota, has served to convince me that the demurrer to the complaint must be sustained. The basic ground upon which this conclusion is based is that the complaint contains no allegations of the ultimate facts upon which the decision of this case upon its merits must be based. The complaint is wholly devoid of allegations as to church polity, except as the constitution affords an indication of its principles of government, and without allegations supplementing the constitution in this particular, and without evidence in support of such allegations, it cannot be determined ultimately whether or not the defendants have exceeded the power vested in them as executive officers and members of the congregation. A plaintiff in an action of this character should not leave open to conjecture the matter of the minority'right, upon which the claim to relief is based. The weakness of the complaint becomes manifest when it is examined with reference to its significant omissions.
*292First: There are no allegations that the congregation of the German Evangelical Lutheran Emmaus Church ever attached itself or sought to attach itself inseparably to the Missouri Synod. It is stated in the articles of incorporation that “this corporation is founded for the purpose of maintaining and promoting religious worship according to the general usages of the German Evangelical Lutheran Synod of Missouri, Ohio, and other state’s churches,” but this statement in the articles of incorporation falls far short of committing the congregation to an indissoluble union with the particular Synod mentioned. It is generally recognized by the authorities that a church whose form of government is congregational rather than federated or, more properly speaking, centralized, may affiliate with any Synod, conference, or group within the denomination of which it is a constituent element. See Lawson v. Kolbenson, 61 Ill. 405; Duessol v. Proch, 78 Conn. 343, 3 L.R.A. (N.S.) 854, 62 Atl. 152; Schradi v. Dornfeld, 52 Minn. 465, 55 N. W. 49; Wehmer v. Fokenga, 57 Neb. 510, 78 N. W. 28; Heckman v. Mees, 16 Ohio, 583; Fadness v. Braunborg, 73 Wis. 257, 21 N. W. 84. Furthermore the subject-matter of this provision in the articles is more appropriate for a by-law than for the permanent articles. Comp. Laws 1913, § 5009; 34 Cyc. 1117, 1118.
Second: It appears by article 11 of the constitution that the congregation reserved to itself the “supreme power in the external and internal management of its own ecclesiastical and congregational affairs,” and provided that no decision or enactment in behalf of the congregation or with reference to a number thereof, as such, should be valid, unless enacted in the name of the congregation or according to the power confessed by the congregation. As a limitation upon the powers of the congregation in these matters, it was stated that “not even the congregar tion shall be empowered to enact or decide anything contrary to the word of God and the symbols of the Lutheran Church, and any such enactment or decision shall be null and void.” It is apparent from this article that it was the intention of the congregation that it should exercise large powers of control over its own affairs, both temporal and ecclesiastical, and that it should have power to arrange its external ecclesiastical connections. It is also apparent that the congregation was regarded as the supreme governing authority in such matters. The article is en*293titled “Church. Government,” and the sentence which limits the power of the congregation begins with the significant expression, “but not even the congregation shall be empowered,” etc. The manifest implication of this language is that there is no power in church government above the congregation. But as to this I express no opinion. The strength of the language quoted only points to the necessity of allegations of church polity. The limitation upon the powers of the congregation in these particulars does not refer in any way to the Missouri Synod or to any other synod. Apparently, it only limits the congregation to decisions which shall be within the word of God and the symbols of the Lutheran Church. I do not understand that any particular synod professes to include the whole of the Lutheran Church. In calling attention to these matters, it is not meant to indicate that this paragraph of the constitution is necessarily to be taken as the sole expression of church polity, but in view of the expressions referred to, which are certainly exceedingly broad, and in view of the further fact that the authorities which have had occasion to deal with controversies arising within the Lutheran Church have regarded the church as adhering to the congregational form of government, the necessity of allegations showing wherein the congregation has transgressed its power becomes apparent. It is not alleged anywhere in the complaint that the congregation has decided any question contrary to the word of God and the symbols of the Lutheran Church.
Third: It is not alleged in the complaint that the theological questions giving rise to the differences between the plaintiffs and the defendants have been determined by any ecclesiastical authority whatsoever. All that is alleged in this connection is that the plaintiffs have been recognized and adjudged by the Missouri Synod as remaining true to the original confession as set forth in paragraph 10 of the constitution. This does not amount to an allegation that the Missouri Synod is the properly and regularly constituted church tribunal for the decision of such questions; that a controversy within its jurisdiction was submitted to it, and that such controversy was decided adversely to the defendants and in favor of the plaintiffs. Before the decision of the Synod can be given any weight, the jurisdictional facts and a determination of the cause must be alleged in the complaint.
Without allegations of fact in the complaint, touching the matters *294above referred to (and the plaintiffs are required to prove only the allegations in their complaint in order to obtain the relief sought from the defendants), it is apparent that the civil courts will be driven to the necessity of determining purely ecclesiastical questions. The law does not contemplate that courts shall be driven to this necessity where there is any ecclesiastical judicatory within the church for the decision of such questions. In order to avoid making theological questions of law or fact for the determination of civil courts, it has become a well-established principle, applicable to cases of this character, that where the appropriate church judicatory has determined the ecclesiastical questions involved, the courts are prone to follow such determination. See note to Mack v. Kime, 24 L.R.A. (N.S.) 675, at page 699. If parties can come into court, in the first instance, under allegations alleging heresy as the basis for the determination of property rights, and ask to have the question of the alleged heresy determined for the first time in the civil courts, manifestly there would be no longer any necessity for first determining such questions in the appropriate church tribunals; and if a complaint which charges heresy alone as a basis for relief in matters of property rights be held sufficient as against a demurrer, there is no longer anything to prevent purely religious questions from becoming original matters of decision in the civil courts where an allegation of heresy by one party is met with a general denial by the other. According to my understanding of the law, it is a prerequisite to the bringing of an action respecting the right to the use of the property of-a church congregation that there shall first have been a determination by some appropriate authority within the church of the ecclesiastical or doctrinal questions at issue between the contending factions; and a complaint which fails to allege the existence of such a tribunal, the submission thereto of the questions involved, and the decision, is fatally defective. See 34 Cyc. 1185, 1186; Wehmer v. Fokenga, 57 Neb. 510, 78 N. W. 28. ,
It has been suggested that some special significance attaches to the fact that the Articles of Incorporation of the Evangelical Lutheran Emmaus Church of Ashley stated that the purpose for which the corporation was organized was to maintain and promote worship according to the doer trines and usages of the Missouri, Ohio, and other state’s churches. But as previously shown in this opinion, the statement of matter, appropri*295ate only for statement in a by-law, adds nothing to the force of the charter. See 34 Cyc. 1118. Section 5009, Comp. Laws 1913, expressly provides what the by-laws of a religious corporation may contain. Paragraph 5 of this section states that such corporations may, in their bylaws, provide for “other regulations not repugnant to the law of the state and consonant with the objects of the corporation.” Section 4536, Comp. Laws 1913, which is a special section dealing with the matter of by-laws for religious corporations, shows clearly that the legislature contemplated that the officers of a religious corporation should at all times perform their functions “in such manner as may be in conformity with or provided by the general laws, canons, rules, regulations, usages, or discipline of the religious organization to which the members of such corporation are attached.” These statutes only serve to emphasize the indispensability of the allegations that are lacking in the instant ease. There is nowhere any allegation that the officers of the corporation have not acted in conformity with the general laws, canons, rules, regulations, usages, or discipline of the religious organization to which the members of the corporation are attached. A careful reading of the statutes authorizing the formation of religious corporations convinces me that the legislature has not sought to make of the religious corporation an instrument for the perpetuation of religious dogmas or beliefs, save as this result may be attained in conformity with the usages -and discipline of particular religious organizations. The corporation is merely an instrumentality which the association may adopt for the purposes of convenience .in the handling of its affairs, and the changing of the corporate name or the obtaining of a second charter by the same society is not a fact of controlling significance in considering the question of the identity of the congregation which at the particular time is using the property in furtherance of its religious objects.
It is also sought to attach special importance to the fact that a substantial money contribution was made by the Missouri Synod. But it is generally held that this fact is of no special significance in determining the question of identity. See First Baptist Church v. Fort, 93 Tex. 215, 49 L.R.A. 617, 58 S. W. 892.
The case of Watson v. Jones, 13 Wall. 679, 20 L. ed. 666, is distinctly not an authority for an implied trust in such a ease as the one at bar The extremely able and oft-cited opinion of Mr. Justice Miller in that *296case recognizes that there may be a religious trust of property, which is devoted to some specific form of religious doctrine or belief “by the deed or will of the donor, or other instrument by which the property is held.” But it also recognizes that where property is held by a religious congregation “either by way of purchase or donation, with no other specific trust attached to it at the hands of the church than that it is for the use of that congregation as a religious society,” — there being no trust imposed, — “the court will not imply one for the purpose of expelling from its use those who, by regular succession and order, constitute the church, because they may have changed in some respects their views of religious truth.” Ibid. Where this situation exists, as is apparently the case here, the question is wholly one of identity, to be resolved according to the usages of the particular religious organization.
It has also been suggested that the complaint alleges a violation of an express trust, but it is quite obvious that the complaint contains no allegations from which it can be inferred that any express trust was created. It is not alleged that there was any trust created by the instrument of conveyance to the church, nor is any trust to be implied from the allegations relating to the original organization of the society. See Watson v. Jones, supra.
The crucial question is the question of identity of the defendants as the members of .the religious society. If they constitute the society which is engaged in carrying out the purposes of the original organization, they should not be disturbed in their use of the property to that end. As heretofore indicated, it is difficult 'to see how this question of identity can be determined according to the general laws, canons, rules, regulations, usages, and discipline of the religious denomination, in the absence of allegations in the complaint showing what these usages are, and the extent to which they have been relied upon and appealed to by the plaintiff.
Robinson, J.As the complaint shows, several years ago at Ashley, North Dakota, the four plaintiffs and thirteen defendants were united as brethren of a Lutheran church at Ashley, North Dakota. They erected a church building worth $1,200 and organized in accordance with the Missouri Synod. Later the defendants reorganized in accordance with the Iowa Lutheran Synod and held the church property and refused to permit worship according to the ritual of the Missouri Synod.
*297Under the statute any three persons may form a religious corporation by filing with the secretary of state articles of incorporation stating the name of the corporation, its location, its duration, the names of its directors, and that it is formed for religious purposes. The articles may'not adopt or include any religious creed. That and many other things may be included in the by-laws as provided by statute. The-members of the corporation have control of its affairs and property, and they may at their pleasure change both the articles of incorporation and the by-laws. The property and polity of a Religious corporation is under the control of the majority, and not the minority, of its members. Manifestly the four members cannot override the determination of the thirteen members. Hence, the complaint does not state a cause of action.
Demurrer sustained.