166 and remove him out of the audience. The disturbance to justify such action need not be a willful one, in the sense of the criminal statute against the disturbance of religious worship. The nonconformity of the disturber with the rules and regulations of the church, by which a disturbance is created will be sufficient to authorize actual force to remove him if he disregards a request to leave.1 Such disturbance may therefore consist in loud singing persevered in for months167 in conducting funeral services in the church contrary to its rules,168 in harranguing the clergyman from the pew occupied by the disturber,169 in insisting on sitting on the side reserved exclusively for the opposite sex170 and in making grimaces at the officiating clergyman. It may be committed by a member of the church,12 by a person who has been expelled from its or by a stranger.174 The disturber may be removed by the clergyman,175 by the sexton176 or even by a general member of the church. However, the elected or appointed officers of the church whose duty it is by usage and custom to preserve order, naturally have the greatest right to act, and should act in preference to others where circumstances permit.178 In removing the disturber such officers, however, should not use any greater force than is reasonably necessary to accomplish the removal. For any such reasonable force they will not be liable in an action for assault and battery,179 in an action for false imprisonment,180 171 166 Wall v. Lee, 34 N. Y. 141. 167 Beckett v. Lawrence, 7 Abb. Pr. N. S. (N. Y.) 403. 168 Commonwealth v. Dougherty, 107 Mass. 243. 169 Wall v. Lee, 34 N. Y. 141, 146. 170 McLain v. Matlock, 7 Ind. 525, 65 Am. Dec. 746. 171 Sheldon v. Vail, 28 Hun. 354. 172 Wall v. Lee, 34 N. Y. 141; Hamblett v. Bennett, 88 Mass. (6 Allen) 140. 173 Sheldon v. Vail, 28 Hun. 354. 174 McLain v. Matlock, 7 Ind. 525, 65 Am. Dec. 746; Commonwealth v. Dougherty, 107 Mass. 243; Beckett 173 v. Lawrence, 7 Abb. Pr. N. S. (N. 175 Wall v. Lee, 34 N. Y. 141. (6 Allen) 140. 177 Wall v. Lee, 34 N, Y. 141. 178 Wall v. Lee, 34 N. Y. 141. 179 Hamblett v. Bennett, 88 Mass. (6 Allen) 140; Wall v. Lee, 34 N. Y. 141; Sheldon v. Vail, 28 Hun. 354. See Howard v. Hayward, 51 Mass. (10 Met) 408. 180 McLain v. Matlock, 7 Ind. 525, 65 Am. Dec. 746; Beckett v. Lawrence, 7 Abb. Pr. N. S. (N. Y.) 403; Stevens v. Gilbert, 120 N. Y. Supp. 114. or in a prosecution for a criminal assault.181 They may, however, become liable for an assault where they strike the disturber and thus commit an act which is not necessary for the purpose of removing him.182 So also may they become liable for false imprisonment where they retain the disturber in custody longer than is necessary for his removal from the building. In such case their official character, however, may be put in evidence in mitigation of damages. 183 It often becomes the duty of church officers to be active in church trials conducted for the purpose of disciplining or expelling recalcitrant members. Since such trials sometimes deal with sin in its most atrocious forms and often produce intense bitterness, it is not astonishing that libel and slander actions should grow out of them. This, however, need not frighten any church officers who act in good faith and without any malice, however disagreeable the result reached may be to the person who is being disciplined.18 Malice being the very gist of these actions the action must fail where no malice is present. All that an officer has to do to protect himself from such an attack is therefore, to act in good faith and with calm deliberation. If this is done no presumption of malice will be raised against him. "Words spoken or written in the regular course of church discipline or before a tribunal of a religious society, to or of members of the church or society are as among the members themselves privileged communications, and are not actionable without express malice.''185 Since every sect of Christians are at liberty to adopt such proceedings for their regulation as they see fit, not inconsistent with law, or injurious to the rights of others,186 since churches, therefore, have authority to deal with their 181 Commonwealth v. Dougherty, 107 Mass. 243. 182 Commonwealth v. Dougherty, 107 Mass. 243. 183 McLain v. Matlock (supra); Beckett v. Lawrence, 7 Abb. Pr. N. S. (N. Y.) 403. 184 Church of St. Louis v. Blanc, 47 La. (8 Rob.) 51. 185 Hilliard on Torts, p. 355, cited in Lucas v. Case, 72 Ky. (9 Bush) 297, 302. 186 Jarvis v. Hathaway, 3 Johns 180, 183. members, for immoral and scandalous conduct; and for that purpose, to hear complaints, to take evidence and to decide; and, upon conviction, to administer proper punishment by way of rebuke, censure, suspension and excommunication,187 and since this liberty would be abridged if the members of a church tribunal were forced to act under a haunting fear of subsequent libel or slander actions for anything they might say or write, it follows that such proceedings will be treated as "quasi judical" and that those "who complain, or give testimony, or act and vote, or pronounce the result, orally or in writing, acting in good faith, and within the scope of the authority conferred by this limited jurisdiction, and not falsely or colorably, making such proceedings a pretense for covering an intended scandal, are protected by law."'188 While, therefore, an unjust censure pronounced by a board of trustees against their former treasurer189 or a notice copied into a church book unnecessarily casting reflections upon a member190 will not be treated as a privileged communication charges of untruthfulness and deception,191 unchaste language,192 fornication,193 perjury,194 forgery195 and imputations otherwise affecting the plaintiff's moral character196 where made in good faith in the course of a church proceeding though by a non-member of the church197 will not be actionable. Nor will it make any difference that the proceeding may appear to be rather harsh. A charge of fornication against a newly married woman based on the fact that she has 187 Farnsworth v. Starrs, 59 Mass. (5 Cush) 412, 415. 188 Farnsworth v. Storrs, 59 Mass. (5 Cush) 412, 416; Landis v. Campbell, 79 Mo. 433, 440, 49 Am. Rep. 239. 189 Holt v. Parsons, 23 Tex. 9, 76 Am. Dec. 49. 190 Shelton v. Nance, 46 Ky. (7 B. Mon.) 128. 191 Shurtleff v. Stevens, 51 Vt. 501. 192 Lucas v. Case, 72 Ky. (9 Bush) 297. 193 Farnsworth v. Starrs, 59 Mass. (5 Bush) 412. 194 Remmington v. Congdon, 19 Mass. (2 Pick) 310. 195 Jarvis v. Hathaway, 3 Johns 180. 196 Hinman v. Hare, N. Y. Daily Register, May 19, 1884, cited in vol. 8, Abbot's N. Y. Digest, pages 1032, 1033. 197 Remmington v. Congdon, 19 Mass. (2 Pick) 310. within five months after her marriage given birth to a fully developed child will therefore be considered and treated as privileged.1 198 Nor does the privilege end after the termination of the proceeding by an expulsion of the member. It is a custom in many churches to solemnly announce such an expulsion and its causes from the pulpit as a warning to others. With such custom the law finds no fault. The excommunication of a member may therefore be promulgated by reading the resolution of expulsion in the presence of the congregation, according to the practice of the church, and such act will, of itself, furnish no foundation for an action against the person who so reads it.199 Such reading is so much within the scope and order of church discipline that it will be supported by the courts even without proof of a particular custom.200 To sum up: American church officers, whether they are trustees charged primarily with the temporalities of their church or deacons charged with its spiritualities, are ordinarily elective though they may be appointive officers. A majority vote of those members of the church constituting a quorum assembled after due notice and cast at an election properly conducted according to the constitution, bylaws or customs of the church, will be sufficient to make them de jure officers. Even where there has been a defect in the proceedings the persons elected, provided that they are not mere intruders, will be recognized as de facto officers who can be ousted only by a direct proceeding brought by the state for that purpose. The officers known as trustees will be in joint possession of all the property of the church, real or personal, and will be charged with the duty of executing its contracts. To avoid personal liability on such contracts they must not only act as a board by majority vote; they must not only act under express or implied 198 Farnsworth v. Storrs, 59 Mass. (5 Cush) 412. 199 Landis v. Campbell, 79 Mo. 433, 440, 49 Am. Rep. 239. 200 Farnsworth v. Storrs, 59 Mass. (5 Cush) 412, 416. authority from the society and keep within the powers conferred on it; they must not only act as mere agents and indicate this fact clearly, but they must also act for a society which has a legal personality, in other words, is a corporation. Where an officer (whether trustee or deacon) is made the moderator at one of its business meetings he will not be responsible for any mistake which he has made in admitting or excluding a vote, provided that he has acted in good faith. Where it becomes necessary to remove a person who disturbs a religious meeting he will not be responsible in an action for assault and battery or false imprisonment, provided that he has used no more force than is reasonably required for the purpose. Where he acts in disciplinary proceedings of his church he will not be liable to an action of libel or slander, provided that his action, no matter how unpleasant it may be, is taken in good faith. CARL ZOLLMANN. CHICAGO, ILL. |
