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the act.

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"It becomes material then to determine under which act said road is incorporated. An examination of the article of association shows that it was incorporated under the provisions of the act of April 4, 1868. There is nothing in the provisions of this act which requires the incorporators to set forth the width of the proposed road, but provides, inter alia, that the capital stock shall be at least $10,000 per mile.

"As before stated, the articles of association set forth that it was chartered under the act of 1868. This act embraced all kinds of roads. It, however, permitted the incorporation of a road only upon a capital of $10,000 per mile of which $9,000 per mile must have been subscribed and 10 per cent. paid in cash as a condition precedent to incorporation. Without compliance with this condition precedent no road could be chartered. But these conditions were modified by two acts of assembly. One was the Act of May 13, 1876 (P. L. 157), by which a road not exceeding 15 miles in length could be chartered upon the subscription of $2,000 per mile and payment of 10 per cent. thereof. As the Bradford, Bordell & Smethport Railroad was but 10 miles long and was chartered in 1880, it availed itself of this modification, and although there was a capital of $10,000 per mile, there was a. subscription of but $2,000 per mile. The other modification of the conditions prescribed by the act of 1868 was by the provision of the Act of March 18, 1875 (P. L. 28), that modification applied only to a case where a road having a gauge not exceeding three feet should by its incorporation seek to avail itself of its provision. It provides: 'Whenever any number of citizens not less than nine may be desirous of forming a company for a road having a gauge not exceeding three feet, they may state in the article of association which they are required to make, and sign the capital stock of the company and $6,000 per mile for every mile of road contemplated to be constructed and the said article may be filed and recorded when $3,000 per mile is subscribed and ten per cent. paid,' etc. order to establish the fact that the road in controversy was chartered under the act of 1875, it would be necessary to show that it availed itself of the provisions of that act, and this could only be shown by the articles of incorporation fixing the amount

In

[4] "There is nothing in the charter which would indicate that the incorporators were attempting to incorporate under the provisions of that act. But it clearly shows that they were incorporating under the provisions of the act of 1868, and its supplement of 1876. This being established, they then come under the provisions of the Act of April 11, 1853 (P. L. 366), which authorized railroad companies theretofore and thereafter to construct or change their gauge to such width as the directors may deem expedient. It is true that in the articles of association of the Bradford, Bordell & Smethport Railroad Company it is stated that the gauge should not exceed three feet; but, if incorporated under the act of 1868, it was not necessary to state the gauge of the road, and it may be treated as mere surplusage.

"The case of Western N. Y. & Penna. Ry. Co. v. Ry. Co., 193 Pa. 127, 44 Atl. 242, does not rule this case as claimed by the plaintiff. In that case, the Olean, Bradford & Warren Railroad Company was a narrow gauge railroad incorporated under the act of 1875. The article of association shows that $3,000 per mile has been subscribed and 10 per cent. thereof paid. And they also show that the length of the road was to be 50 miles and the capital stock to be $6,000 per mile, which fully complies in every respect with the act of 1875.

"That the proposed construction of the crossing is practical and safe and the best known in railroading is substantially uncontradicted in this case. We do not think that the legislation or authorities bearing upon the question of overhead or undergrade crossing have any application in this case. There are no pleadings and no issue raised which in any way relates to this question and upon which any adjudication by this court could rest.

"We are of the opinion that under all the evidence in this case the plaintiff's bill should be dismissed and the injunction dissolved."

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

John G. Johnson, Edwin E. Tait, Edgar

W. Tait, and Sheridan Gorton, for appellant. Fred D. Gallup, Thomas H. Murray, and Claude W. Shattuck, for appellees.

PER CURIAM. The decree dissolving the preliminary injunction and dismissing the bill is affirmed, with costs, for the reasons stated in the opinion of Judge Ormerod, specially presiding.

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meeting was again announced by the priest. In addition to that, the defendants and a committee of the faction adhering to them issued handbills in effect joining in the call for the St. Mary's Hall meeting of June 8th. These were circulated during the week by the defendants in the same way as those issued by authority of the priest.

"(9) An attempt is made to charge the priest with changing the place as well as the date of meeting. The fact is that the notices in two of the newspapers specified the time and place as follows: 'In St. Mary's Hall, West Market street, on the 8th day of June, at 7 o'clock p. m., instead of the 7th as heretofore announced,' etc.; while in the third paper it read, 'instead of Sunday the 7th and in the Auditorium as heretofore announced,' etc. This on its face implies an earlier notice of the meeting at the Auditorium. But it was the error of some person who prepared the notice for the printer. There had been no such announcement, and the priest was not aware of the error until long after the meeting had been held. It is not shown that any one ever understood the meeting to have been called for any place other than St. Mary's Hall. The action of the defendants and those adhering to them precludes the inference of any misunderstanding in the premises on their part.

"(10) By the law of the church and the regulations in force in this diocese, it is required (1) that congregational meetings shall be called by the pastor and due notice given from the pulpit; and (2) that the right to vote at such meetings shall be restricted to those who are practical Catholics, and have contributed regularly to the support of the congregation by the payment either of pew

rent, a seat in its church, or annual dues.

"(11) In this congregation, the male members of full age have from the start been accustomed to pay as annual dues the sum of $6, very generally in monthly installments of 50 cents. These payments were noted by the secretary in a dues book specially printed in their language for that purpose. Previous to 1906, the congregation had been in harmony, and the accounts seem to have been kept by a secretary, who turned the books over to the defendant trustees after the litigation started. To what extent payments since then have been made to the committee recognized by the trustees, as distinguished from that recognized by the priest, does not

appear.

"(12) But, to avoid controversy on that ground, it was mutually agreed by the factions and announced by authority of the pastor that all male members of full age who had paid dues as late as 1905, the last year when the the congregation was harmonious, should be allowed to vote at the meeting without regard to payments since the dissension began. To that end it was mutually agreed and fully understood that the members should be prepared to show their dues books at the hall.

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"(13) The hall was opened at 7 o'clock in the evening of the day appointed, and between that hour and 8 o'clock the congregation assembled. A committee composed of members of both factions was stationed at the door to see that only those were admitted who were entitled to vote.

"(14) As to what took place from that time until the meeting closed at 11 o'clock, there is a marked conflict in the testimony. On the weight of the credible evidence, it is found: (1) That all male members of voting age were admitted who showed by their due books or otherwise that they had paid as late as 1905: (2) that by 8 o'clock all qualified members who so desired had been admitted; (3) that at that hour the meeting was called to order by the pastor, and was duly organized by the election of a chairman and secretary; (4) that its object was stated as well by the chairman as by the priest, namely, to take action on the question of substituting the bishop as trustee in place of the defendants; (5) that this was followed by prolonged discussion, pro and con, freely participated in by both factions, the speakers addressing the audience from the platform; (6) that eventually the question was submitted in the form of a resolution in writing after its terms had been explained at length; (7) that in substance and practical effect it was a proposal that the bishop be chosen as trustee to hold the title to all the property of the congregation in accordance with the laws, rules, and usages of the Catholic Church in this diocese.

"(15) By direction of the chairman, the vote was taken by a 'division of the house.' cordingly moved to one side of the hall, and Those who favored the proposed change acthose opposed took their station on the other

side. Of the 1,000 or more members thus voting, an overwhelming majority voted in the affirmative. Exact figures cannot be had, but evidently not more than 100 voted in the negative, and it is so found.

"(16) The result was announced by the chairman accordingly, and the meeting closed after the appointment of the plaintiffs as a committee to attend to the details of procuring a transfer of the legal title from the de fendants, with authority to take such proceedings at law or in equity as might be necessary to secure the conveyance from the trustees above mentioned to the Rt. Rev. Michael J. Hoban, Bishop of Scranton, trustee,' for the congregation.

"(17) In this way, as between the defendants and the bishop, a majority of the voting membership expressed its choice for trustee. But on demand being made the transfer was refused by defendants, and that brought on the present suit."

The court entered the following decree: "And now, November 19, 1910, this cause came on to be heard at a regular term of equity court, and was argued by counsel, and upon consideration thereof it is ordered, adjudged, and decreed that the defendants shall

Argued before MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

William Jessup Hand, for appellants. John G. Johnson, T. P. Hoban, and John P. Kelly, for appellees.

STEWART, J. Either the deliverances of this court, as reported in 221 Pa. 213, 70 Atl. 740, and 229 Pa. 47, 77 Atl. 1102, 31 L. R. A. (N. S.) 686, with respect to the ownership of church property and congregational power in connection therewith, have been seriously misapprehended, or the present proceeding is a clear attempt to circumvent the law as we have there declared it. In the first of the cases referred to (Krauczunas v. Hoban), the effort was on the part of the 10 lay members of the congregation, duly chosen trustees of the legal title to the church property, to compel a reconveyance to them of the title by Bishop Hoban, who had previously been designated trustee of the title for a special purpose, which had been fully accomplished. The effort of these trustees was resisted, not on the ground that the congregation was without statutory right to choose its own trustee or trustees for the purpose indicated, or that the election of these particular trustees was in any way irregular, but distinctly on the ground that any such election, except as it resulted in the choice of the bishop of the diocese in which the property was located, offended against the rules and regulations of the Catholic Church. To make this clear, it is only necessary to quote a single finding of fact, and the conclusion derived therefrom, on which the lower court rested its dismissal of the plaintiffs' bill. The finding was as follows: "The canons of the Roman Catholic Church provide and require that the title to the property of the Roman Catholic Congregation which is under the jurisdiction of the Roman Catholic bishop of the diocese in which the congregation has its place of worship, must be in the ordinary, or, in the present case, in the bishop of the diocese." This was the conclusion derived: "If a congregation is formed for the purpose of religious worship according to the faith and rites of the Catholic Church, and has accepted the pastor assigned to it by the bishop of the diocese, has placed itself

tical matters, the title to its property must be taken and held as provided by the canons of the Catholic Church. The property acquired by the congregation under such circumstances is the property of the church, and is subject to its control, and must be held in the manner directed by its laws. * The title to the real estate described in plaintiffs' bill is properly and legally vested in the defendant, Rt. Rev. Michael J. Hoban, Bishop of Scranton, as trustee for St. Joseph's Lithuanian Catholic Congregation, in accordance with the laws and usages of the Catholic Church."

Referring to this language in our review of the case, we said: "It will be seen from this that what was a controversy over an unimportant result-the right to substitute one dry, passive trustee of a legal title for another was made to involve a question of ownership of property. * Conveyance to the church is not pretended; nor is forfeiture on the part of the congregation. Nothing is asserted in this connection but ecclesiastical rules and regulations, which, except as they are aided by legal conveyance, are ineffectual to divest any owner of his property.

[1] But more than this, the position taken by the defendant and sustained by the court is in direct opposition to the law, whose supremacy over all ecclesiastical rules and regulations, when rights of property are concerned, is not to be questioned. The act of April 26, 1855 (P. L. 330) § 7, provides that: 'Whensoever any property, real or personal, shall hereafter be bequeathed, devised or conveyed to any ecclesiastical corporation, bishop, ecclesiastic, or other person, for the use of any church, congregation, or religious society, for religious worship or sepulture, or the maintenance of either, the same shall not be otherwise taken and held, or enure, than subject to the control and disposition of the lay members of such church, congregation, or religious society, or such constituted officers or representatives thereof,'" etc. We accordingly sustained the appeal, and ordered that Bishop Hoban reconvey the church property to the plaintiffs as trustees. It is to be remarked in this connection that these trustees, because of their attempt to vindicate their right under the law, had been excommunicated by the bishop. Appendix, p. 233.

Nevertheless, the bishop complied with the decree of the court, and made conveyance of the title; he followed it up, however, with an episcopal interdict which closed the doors of the church against the congregation. This interdict reads as follows: "The Members of St. Joseph's Congregation-Greeting: court has decided that the Catholic bishop of Scranton must hand over to a band of excommunicated apostates the deed of the Cath

The

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cannot be used for any other worship than Catholic worship, and as it is intolerable to hold Catholic services in a church controlled by members who despise the church and her laws, and who have lost their Catholic faith, I am exceedingly pained to be obliged to place the Lithuanian Catholic Church of St. Joseph's under interdict until the members of the congregation shall turn these faithless men out and place the church once more under the care of the bishop of the diocese of Scranton, according to the laws of the Catholic Church. I now declare that the Lithuanian Catholic Church of St. Joseph's, North Main avenue, in this city of Scranton, is hereby placed under interdiction from midnight of Sunday, May 31-June 1, 1908, and that no Catholic services of any kind shall be held therein, nor shall any Catholic enter therein without incurring ecclesiastical censure, until the interdict shall be removed. [Signed] Michael John Hoban, Bishop of Scranton."

Simultaneously with the proclamation of this edict, a meeting of the congregation was called, elsewhere than in the church, to determine how the title to the property was to be held. We are not now concerned with the factional differences which disturbed that meeting, and resulted in a separate meeting of the dissentients, except to say that the latter repudiated the action attempted at the meeting regularly called, and declined to reconvey the title to the bishop. The present bill was filed to enforce compliance. A protracted hearing resulted; the one issue being the regularity in the proceedings and membership of the meeting, which declared for a reconveyance to the bishop. In the course of two or three days-we use the language of the chancellor before whom the case was heard-it became apparent that if the question were to be decided by review of the action taken at that meeting the result would be unsatisfactory or doubtful. It was consented to by the individual litigants that an election should be held in open court, conducted by the chancellor. Such election was held, covering several days, and resulted, according to the findings of the chancellor, in the election of Bishop Hoban as trustee. A decree followed, requiring a reconveyance of the title to him. On appeal to this court (Mazaika v. Krauczunas, 229 Pa. 47, 77 Atl. 1102, 31 L. R. A. [N. S.] 686), we held that the election before the chancellor in open court was without effect for reasons therein stated at length, and which need not be repeated here, and we accordingly set aside the decree and remitted the record; the case to be proceeded with as though the election in court had not been held. The case was thereupon proceeded with in due form, with like conclusions upon the issues raised by the original bill and answer, and we have this present appeal from a decree requiring a reconveyance to the "Rt. Rev.

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Michael J. Hoban, Bishop of Scranton, as trustee for St. Joseph's Lithuanian Catholic Congregation of the city of Scranton."

If the case rested simply on the findings of fact and conclusions of the learned chancellor with respect to the regularity of the proceedings in the meeting of the congregation at which Bishop Hoban was declared to have received a majority of the votes cast, while much that there occurred is open to criticism, we would not feel justified in prolonging this unprofitable controversy by a reversal. But there are other admitted facts which have a significance not to be overlooked. In this we make no reference to the excommunication of the appellants as a punishment for their appeal to the law of the land for a vindication of the right of the congregation they represented to the control of its property, nor to the episcopal edict which followed at once upon our decision, depriving the congregation of the privilege of Christian worship according to its faith and practice in its own sanctuary until such time as it chose to elect the bishop of the diocese the trustee of the legal title to its property. We will assume that these acts were within episcopal authority under the polity of the Roman Catholic Church, however much they may be at variance with the policy of our civil law, which regards with condemnation all interference with freedom of elections. No one is heard complaining in regard to them, and they concern us here only as they help to an understanding of the real purpose of the meeting of the congregation, whose action in the election of Bishop Hoban as trustee has been sustained by the court below.

The resolution embodying the action of the meeting was as follows: "Whereas, it is deemed advisable and proper, and it is also the desire of the members of St. Joseph's Lithuanian Catholic Congregation of the city of Scranton, Pennsylvania, to vest the title to all the property of said St. Joseph's Lithuanian Catholic Congregation of the city of Scranton, Pennsylvania, in Rt. Rev. Michael J. Hoban, Bishop of Scranton, as trustee for said St. Joseph's Lithuanian Catholic Congregation, in accordance with the laws, rules and usages of the Catholic Church in the diocese of Scranton and state of Pennsylvania: Now, therefore, be it resolved, that all the property of said St. Joseph's Lithuanian Catholic Congregation is, and is hereby declared, subject to the jurisdiction of the Catholic Church and the Catholic bishop of Scranton; and be it further resolved, that Rt. Rev. Michael J. Hoban, Bishop of Scranton, be, and is hereby, chosen and designated trustee for said St. Joseph's Lithuanian Catholic Congregation of the city of Scranton, Pennsylvania, to hold as such trustee all the property of said congregation, and the title thereto in accordance with the laws, rules and usages of the Catholic Church in