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Ginossi v. Samatos





Appeal by plaintiffs from the Superior Court of Cook county; the Hon. DONALD S. McKINLAY, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1953. Order and decree affirmed. Opinion filed October 19, 1954. Released for publication January 4, 1955.


The parties to this controversy were, until recently, members and officers of one church, St. Nicholas of Chicago. A dispute arose among the members and officers as to whether the church would remain affiliated with the Albanian Orthodox Diocese in America, Boston, Massachusetts, of which the Rev. Fan Stylian Noli is the bishop, or whether the church would be placed under the ecclesiastical jurisdiction of the Albanian Orthodox Episcopacy, Boston, Massachusetts, affiliated with the Holy See at Constantinople, Patriarchate of all Eastern Orthodoxy, of which the Rev. Mark Lipa is the bishop. On March 16, 1952, by a vote of 120 to 2 the membership of the church amended the by-laws so that in the future they would be affiliated with and recognize Bishop Lipa rather than Bishop Noli, who is considered to be controlled by the procommunist regime in Albania.

Plaintiffs, officers of the church representing the pro-Bishop Noli group, a minority of the membership, filed their complaint on behalf of themselves and all other members of St. Nicholas Church. Plaintiffs seek to restrain the defendants, who are a part of the majority, from transferring possession or control of the church building, or any of its assets, or from interfering with the conduct of religious services by Father Dode, or from interfering with or preventing Vito Nako or Thanos Titos from acting as members of the board of directors. Defendants answered, denied the complaint's allegations and filed their countercomplaint, in which they were joined by 110 or more members of the church. They pray that the plaintiffs be restrained from interfering with the operation of the church and use of its property, that the action of the board purportedly dismissing certain officers and members of the church be held null and void and the meeting amending the constitution and by-laws of the church be declared proper and legal. The court referred the cause to a master who after extensive hearings filed his report recommending that the relief prayed for in the countercomplaint be granted. Plaintiffs filed objections to the master's report which were overruled and allowed to stand as exceptions. The court after a hearing on the exceptions adopted the master's findings and recommendations and entered the decree pursuant thereto from which the plaintiffs appeal. The decree permanently enjoins them from in any way interfering with the operation of the church and use of its property except in conformity to its constitution and by-laws and the laws of the State of Illinois.

A voluminous record reveals, in substance, that about twelve members joined in Illinois in 1944 to incorporate under the name "The Albanian Orthodox Church, St. Nicholas of Chicago." They acquired their present church building in 1947. That same year, too, they acquired a priest, Father Dode, sent them at their request by Bishop Noli of the Boston Diocese. Their constitution and by-laws were reduced to printed form in November 1950. These, by stipulation, control the present controversy. In Boston, in December 1950, a group of Albanian-Americans established the Albanian Orthodox Episcopacy, with Bishop Lipa, recently arrived from Constantinople for that purpose, appointed to the episcopate. In March 1951, the members of St. Nicholas received literature concerning Bishop Lipa and the Episcopacy. Sporadically, thereafter, they conversed upon the relative merits of the Boston Diocese and its bishop, Noli, and the Boston Episcopacy and its bishop, Lipa. The membership slowly grew until in December 1951, it numbered 65 persons. The members and officers meanwhile exchanged conflicting views with respect to the Lipa-Noli question. Many of the members and officers were dissatisfied with Father Dode, who was pro-Noli. In March 1952, the membership of the church had increased to about 204 and because of the Lipa-Noli conflict, the minority group, plaintiffs, undertook to dismiss certain defendants, members of the governing committee of the church, and a large number of members. The majority group, defendants, undertook to amend the constitution and by-laws to effect withdrawal of the church from the Diocese, removal of Father Dode, and connection with the Episcopacy. Both groups have organized themselves as the self-constituted St. Nicholas Church of Chicago. No fundamental difference in church doctrine exists between them or between the Diocese and Episcopacy.

Plaintiffs make several principal contentions as grounds for reversal. First, they attack the courts' jurisdiction to entertain this controversy on the ground that the master and the trial court, which adopted the findings and conclusions of the master, assumed jurisdiction based on "discussions off the record [that] . . . in maintaining church functions there have been indications of violence." This, they contend, violated the constitutional requirement of due process of law that all proceedings be open and notorious and in the presence of all parties, and violated, too, the constitutional guarantees accorded voluntary religious societies against state interference. Second, they contend that there was evidence of an agreement between the Boston Diocese and St. Nicholas Church whereby St. Nicholas became a part of a national ecclesiastical organization. Third, they contend that the court has no jurisdiction to review the expulsion of church members in the absence of a showing that civil or property rights have been violated or threatened. Fourth, they contend that the master's finding that the plaintiffs failed to establish a conspiracy is contrary to the manifest weight of the evidence.

Our jurisdiction arises from the conflicting claims to church property. While religious organizations enjoy the guarantee of the Fourteenth Amendment with respect to state action which violates the First Amendment (Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 115), still like other voluntary associations for benevolent or charitable purposes, their rights of property, or of contract, are equally under the protection of the law, and the actions of their members subject to its restraints. Watson v. Jones, 13 Wall. (80 U.S.) 679, 714. See also Kedroff v. St. Nicholas Cathedral, supra, 113-5, 122; Engel v. Walsh, 258 Ill. 98, 103.

Plaintiffs on this point challenge the decree finding that St. Nicholas Church at no time became a part of the Boston Diocese, that is, of a national ecclesiastical and jurisdictional religious association. They point to Articles II and VII of St. Nicholas' constitution and by-laws, wherein, respectively, St. Nicholas "recognizes as its head (Ecclesiastical Jurisdiction), the Diocese of the Albanian Orthodox Church of America," and "Any Albanian man or woman who is eighteen years of age or over and accepts and abides the Christian Orthodox Religion of the Eastern Orthodox Church, its Canons, Laws, Discipline, Ecumenical Synods, Governing, Constitution and By-Laws of this Church, and the Albanian Orthodox Diocese in America, may become a member of St. Nicholas Church." Too, they point to the prayer and hymn books used by St. Nicholas and obtained from and translated by Bishop Noli of the Boston Diocese; the annual contributions, and the proceeds from the Christmas and Easter special offerings, donated by the membership of St. Nicholas to the Diocese; finally, the representative sent by St. Nicholas to the annual conference of the Diocese at Boston in 1951.

The court in its conclusions placed principal reliance upon (1) the provision of Article XIII that, "The Constitution and By-Laws may be added to or amended according to the need in the future"; (2) the minutes of the numerous meetings prior to 1952 when the old timers voted to attempt to hire another priest without consulting Boston. There is, in addition, a letter of 1947 from St. Nicholas to Bishop Noli which, although requesting him to recommend a priest, indicates strongly that the request was made only because the two enjoy a common religious belief and language, and because of his obvious position with respect to finding and recommending a priest of Albanian extraction who could conduct St. Nicholas' services in the mother tongue. Beyond this, there was available to St. Nicholas in the language of the constitution of the Boston Diocese a clear manner of expressing its allegiance by "sending to the Council of the Diocese a list of its members, with a statement of its organization signed by its secretary, and evidence of its ability to support a priest." Besides the bare allegation contained in the complaint (denied by the defendants in their answer), there is no evidence in the record that this was in fact done. Finally (3) the court relied on the fact that although there is and has been in Illinois a method of incorporating so as to indicate a church's adherence to a higher or national church organization (Ill. Rev. Stats., ch. 32, pars. 176-186 [Jones Ill. Stats. Ann. 32.269-32.279]), St. Nicholas has not been so incorporated.

Plaintiffs cite numerous cases, among them Church of God, Decatur, Illinois v. Finney, 344 Ill. App. 598; Ferraria v. Vasconcelles, 23 Ill. 403; Christian Church of Sand Creek v. Church of Christ of Sand Creek, 219 Ill. 503; Kuns v. Robertson, 154 Ill. 394; and Kedroff v. St. Nicholas Cathedral, supra, in support of their contention that the defendants by their attempted amendment of the constitution and by-laws to provide for the hegemony of the Albanian Episcopacy, against the will of the plaintiffs and other members of the church, and in violation of its constitution and by-laws, withdrew themselves from St. Nicholas and forfeited their membership. It is true that property held in trust for the benefit of a particular religious denomination, or rather for the inculcation of certain defined religious tenets, cannot be held subject to be conveyed away or improved and used in accordance with the dictates of a society or congregation. Calkins v. Cheney, 92 Ill. 463, 477-8. Under these circumstances, members repudiate them at the risk of effecting their voluntary withdrawal, whether a minority or majority, and the property remains with those adhering to the original denomination or tenets. Ferraria v. Vasconcelles, supra. In none of the cases cited by the plaintiffs, however, is there considered language and provisions such as we find before us in the constitution and by-laws of St. Nicholas.

Most obviously property held in trust for the use of a society or congregation demands that the wishes of the society or congregation with respect to its use and disposition be regarded. The society or congregation alone exercises discretion; it alone acts in obedience to its own sense of what is needful and proper now and in the future. The sole restriction imposed is, not that its rules and regulations shall conform to the canons of the church with which the society or congregation professes connection, or subject to the supervision and control of any body of persons representing such church, but simply that they shall not be inconsistent with the constitution and laws of this State or of the United States. Calkins v. Cheney, supra, at 477-8. In Article VI of St. Nicholas' constitution and by-laws is found the following language:

"The wealth of St. Nicholas Church, real or personal, for the spiritual needs of our congregation, are the following:

"The wealth of the Church, real or personal, concerns all the members of the church in which they are represented by the Committee in every case. The committee of the Church has no authority or power to sell or to buy, neither to build nor to change important acquisitions or belongings before receiving the authorization of the members at a general meeting. (Italics ours.)

"Any property of St. Nicholas Church, real or personal, will be fully governed according to the Laws of the Religious Corporations of the State of Illinois, and other ...

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