The defendant is a benevolent society, organized under chapter 42, article 10, of the Eevised Statutes of Missouri (1889). The defendant issues to each of its members a certificate of insurance, in -which it agrees to pay to the heirs of the member, sixty days after his death, the sum of $1,000, provided the member, at the time of his death,' is in good standing in the order. In May, 1888, one Peter Franta, now deceased, became a member of the society, and a certificate was issued on his life, as above provided. Franta died in 1896, and the plaintiffs, who claim to be his heirs, instituted this suit to recover the amount of the benefit certificate.
The answer sets up the special defense that, under the constitution and laws of the society, none but members of the Catholic Church can lawfully become members of the defendant order; that the by-laws further provide that all members are compelled to observe the requirements of the Catholic Church, and afailure in this respect renders the member liable to suspension. The answer then sets forth certain forms, ceremonies and duties which the Catholic Church imposes upon its members, which the defendant averred Franta failed to observe after he had become a member of the defendant, and that by reason of this he had been regularly suspended as such member, and stood so suspended at the time of his death. On motion of the plaintiffs, the circuit court struck out this defense, upon the ground, among other things, that the by-law, pleaded and relied on as the foundation of the alleged suspension, was in conflict with article two (2), section five (5) of the constitution of Missouri. The defendant made no *36further defense. There was a judgment for the amount of the certificate, and the defendant has appealed.
The motion to strike out challenges the validity of the by-law upon constitutional grounds. The judgment sustaining the motion rests solely upon the conclusion reached by the circuit judge — that the enforcement of the by-law would destroy rights of property by reason of the failure of Eranta to perform certain religious ceremonies, which, in the opinion of the judge, was an infringement of the foregoing section of the constitution, which guarantees to every one religious liberty. We are not authorized, under the constitution establishing this court, to deal with this question. The jurisdiction of the appeal is in the supreme court. The cause will, therefore, be transferred to that court for final disposition.
All concur.