INCORPORATION
720
INCORPORATION
1855 the New York legislature had passed a law pro-
viding that "no interest in property, real or personal,
should be conveyable or descendible to any ecclesiastic
or his successor in any ecclesiastical otBce". There
was similar legislation in Pennsylvania and Ohio.
Such legislation, with the waning of the anti-Catholic
spirit which had fostered it, was soon repealed; but in
1863, a measure for the incorporation of Catholic
church property, drawn by the eminent lawyer,
Charles O'Conor, at the request of Archbishop Hughes,
was enacted by the New York legislature. This meas-
ure may be regarded as another deviation in the
policy of the hierarchy, away from the plan of vesting
in fee simple the large temporalities of great dioceses
in one man, even though subject to the trusteeship
prescribed in the canon law, and a return to some of
the features of lay trusteeship, limited and safe-
guarded however by the rules of ecclesiastical disci-
pline.
Meanwhile such instances as the attempt of Euro- pean relatives in 1868 to contest the will of Bishop Baraga, devising the church property of the Mar- quette Diocese to his successor, and the Purcell failure in 1879 (involving two hundred pieces of church prop- erty and a long period of litigation), were so persuasive that "the Third Plenary Council of Baltimore (1884), in its decrees on the suliject of church property, urges the bishops to place all church property under the protection of legal incorporation, where it can be done safely, as in the State of New York; where such incor- poration cannot be made it requests the bishop to nave himself made a corporation sole and thus hold the property as any other corporation would; and where this cannot be done it permits him to hold the property in fee simple " (Rev. J. M. Farley, now Arch- bishop Farley, in "The P^orum ", June, 1894). Justice Strong, formerly of the United States Supreme Court, says: "Almost all, if not all, the questions mooted in the civil courts of this country, relating to church polity, discipline, officers or members, have arisen incidentally in controversies respecting church prop- erty " (Relation of Civil Law to Church Polity, p. 40). It is recognized in numerous decisions of American courts (Am. and Eng. Ency. of Law, XXIV, 3.30), that the terms "church" and "incorporated religious so- ciety" are not identical. The former is the larger term — its ol)jccts and purposes are moral and reli- gious, the church corporation is subsidiary, having to do chiefly with the care and control of the temporali- ties. While for various, and no doubt sufficient reasons, the title to church property continues in the bishop in fee simple as heretofore, in a number of states, e. g. Ohio, Pennsylvania, the tendency is to- wards incorporation, either by special acts making the bishop a "corporation sole " or midcr the terms of gen- eral provisions drawn especially to suit the needs and circumstances of the Catholic Church, e. g. the New York law of 1S63, or agreeable thereto, as the Michigan law of 1897. In Maryland the Archbishop of Balti- more holds all church property as a corporation sole. This title was obtained from the legislature of Mary- land by ."Archbishop Whitfield; its powers and scope were enlarged in the time of .\rchbishop Spalding, and again in the time of Archbishop Bayley and also under Cardinal Gilibons. By an act of the Massachusette legislature (ch. .WO; 1X97) "the present Roman Cath- olic Archbishop of the .Vrclidiocese of Boston, and his successors in office, shall Ix^ and are made a body politic and corporation sole " to receive, take and hold, by sale, gift, lease, devise or otherwise real and personal property of every description for religious, charitable and burial purposes. There are similar .\cts for the other dioceses in Massachusetts. In the ("hicago Archdiocese all diocesan property is held by "the Catholic Bishop of Chicago" as a corporation sole; he is responsible for all matters pertaining to its adminis- tration. This is in accordance with the statutes of the
State of Illinois. Under the provisions of the Cali-
fornia code, the church property in the several Cath-
olic dioceses within the state is held by the bishop or
archbishop as a corporation sole. Section 602 of the
California code provides: "Whenever the rules, regu-
lations or discipline of any religious denomination,
society or church so require, for the temporalities
thereof, and the management of the estate and prop-
erty thereof, it shall be lawful for the bishop, chief
priest, or presiding elder of such religious denomina-
tion, society or church to become a sole corporation,
in the manner prescribed in this title, as nearly as may
be, and with all the powers and duties, and for the uses
and purposes in this title provided for religious incor-
poration and subject to all the provisions, conditions
and limitations in said title prescribed. " By the
terms of the New York Act of 1863 (ch. 45), the
Roman Catholic archbishop or bishop, the vicar-gen-
eral, the pastor of the congregation and two laymen,
the two last being selected by the three first mentioned
or by a majority of them, form the board of trustees.
The two laymen hold office for one year and their suc-
cessors are appointed in the same manner as provided
for the original selection. The New York law has fur-
nished the model for like statutes in Minnesota, North
and South Dakota, and other states. In Wisconsin
(Sec. 2001-10, m. S., ch. 37 ; Laws of 1883) "the bi.shop
of each diocese being the only trustee of each Roman
Catholic church in his diocese, may cause any or ail
congregations therein to be incorporated by adding
four more members as trustees as hereinafter provided.
The bishop and vicar-general of each diocese, the pas-
tor of the congregation to lie incorporated together
with two laymen, practical communicants of such
congregation (the latter to be chosen from and by the
congregation) shall be trustees." It is (provided that
the bishop and vicar-general may be represented by
proxy at any meeting of the board of trustees. The
trustees or directors, may, by unanimous vote, adopt
by-laws not contrary to the statutes of the diocese and
the discipline of the Roman Catholic Church.
In Michigan an Act to revise, amenfl, and consolidate the laws for the incorporation of ecclesiastical bodies, passed in 1897, was regarded by the late Rev. P. A. Baart, an eminent canonist, as "the most liberal of any law in the country " on the subject. He savs that "being a general law which fits all denominations, it will not be easily changed in the future. " Some of the provisionsof this enactment are as follows: "Section 1. The people of the state of Michigan enact. That it shall be lawful for any five or more per.sons of full age to become incorporated as a church, religious society, Sunday school or other society for the purpose of dif- fusing moral or religious knowledge I >y complying with the following contlitions. . . ." (The.se relate to the statements to be contained in the articles of associa- tion and the filing of such articles with the registrar of deeds and the secretary of State.) "Sect ion 4. The per- sons forming such corporations shall adopt by-laws, and execute and acknowle<lge them in the same man- ner as the articles of association above provided for, and such by-laws shall be recorded in the office of the registrar of deeds of the comity where such corpora- tion is to hold its regular meetings. Such by-laws shall prescribe the qualifications of members; the manner in which they shall be admitted, suspended or expelled; the officers of such corporations, their official title, their term of office; the manner of their election and removal from office; their official duties; the time and manner of calling and holding meetings, etc." The constitution of one state. West Virginia, prohil)its the granting of charters of incorporation to religious societies. It may be said that as a rule, all Catholic educational and charitable institutions throughout the L^nited States which have attained any importance or permanence are incorporated, usu- ally under the provisions of general statutes for the
