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2 F.(20) 17 court, and have transferred the campus to proper party plaintiff to bring this suit? the state of Iowa. The relief sought is an The averments of the complaint which coninjunction against the delivery of the $200,- dition the answer to this question set forth 000 to Coe College and an accounting for these facts: The Church has conducted its the campus.

religious and educational activities in the The defendants made a motion to dismiss United States for over 100 years. Its orthe bill, and after consideration the court ganic law is embodied in the Church Discirendered a decree to the effect that it found pline, which is subject to amendment only "that, under the facts pleaded in the bill, by the general conference of the Church, plaintiff, William E. Schell, should not be which meets quadrennially. In the year permitted to maintain this cause as a class 1856, as part of its religious, benevolent, suit," and "ordered and adjudged that and educational work, it established a plaintiff's bill be, and the same is, hereby church college in the state of Iowa, which dismissed." This appeal is from this order. for many years has been located in the city

By their motion to dismiss the bill the of Toledo, Iowa. Since 1903 this college defendants have admitted, and this court has been known as Leander Clark College. treats as true, the averments of facts well Throughout its existence it has been suppleaded in the bill. Counsel for the de- ported by, has acknowledged allegiance to, fendants urged these three reasons why and has recognized the domination of the in their opinion the order of dismissal Church. Under the provisions of its artishould be affirmed: First, because the cles of incorporation its trustees are elected Board of Education was the only proper triennially by the Iowa, Minnesota, Wisconplaintiff in this suit; second, because there sin, and Illinois annual conferences of the is a misjoinder of causes of action, in that Church, which, in relation to Leander Clark the complaint seeks an injunction against College, are "the co-operating conferences." the college and its trustees, to prevent the With reference to church colleges, the delivery of $200,000 to Coe College, and organic law of the Church—the Church Disalso an accounting for the campus from the cipline-provided for a Board of Educatrustees of the college; and, third, because tion, an Ohio corporation to which the under a statute of Iowa the trustees of the Church delegated general supervisory powcollege are vested with the "control and ers over all church schools, and among them management of its affairs and funds,” and, the power to determine to which annual if they hold the money or property of oth- conferences each school should be tributary. ers in trust for the owners, they are not an- No school or college could be established, swerable to the cestuis que trust or to any discontinued, relocated, or consolidated with court for their violation of their trust or any other without its consent. Leander disposition of the property.

Clark College throughout its existence met [1] By the averments of the bill and the with the requirements and regulations and motion to dismiss it is admitted that the recognized the authority of the Board of Church was an unincorporated association, Education and of the Church Discipline as that its members were too numerous to join adopted by the general conference until the as plaintiffs, and that the plaintiff is a member, and brings this suit as such mem- In June, 1917, a plan of consolidation of ber, for himself and all other members simi- Leander Clark College with Coe College larly situated. If, therefore, the Church was approved by the trustees of the former had any enforceable equity against the de college. In the autumn of 1917 it was prefendants, this plaintiff may maintain this sented to the co-operating conferences, but suit to enforce it. When the question is none of them favored it, and when it was one of common or general interest to many presented to the Board of Education, the persons, constituting a class so numerous consent of which is by the Church Discias to make it impracticable to bring them pline indispensable before any consolidaall before the court, one or more may sue tion can become effective, that board disapor defend for the whole. Story's Equity proved of the plan and refused to consent Pleadings (10th Ed.) $ 97; Federal Equi- to the consolidation. Thereupon the Board ty Rule 38; 1 Foster, Federal Practice (5th of Education made, and in September and Ed.) § 114, p. 423; Helm v. Zarecor, 222 October, 1918, presented, a new plan of U. S. 32, 33, 34, 37, 38, 32 S. Ct. 10, 56 L. consolidation to the co-operating conferEd. 77.

ences at their annual conferences, and they Was the Board of Education the only approved of it, and, believing that this plan

year 1919.

.

would be carried through, these conferences its members, empowered to do certain acts authorized the trustees of the college to and decide specified questions arising in the dispose of the campus property as they saw practical operation of their business and fit. Afterward the college, through its offi- the management of their property. It bears cers and trustees, purporting to act under a relation to the Church analogous to that this authority, conveyed the campus to the which an agent or committee delegated by state of Iowa for use as a state institution a railroad or commercial corporation or asfor destitute orphan children. One of the sociation to manage and direct the operaobjects of this suit is to obtain an account- tion of a small local portion of its business ing from the trustees of the college of the or property does to such corporation or asdisposition of this campus, on the ground sociation. On the other hand, it is alleged that they and their college held it in trust in the bill that the Church established the for the Church.

college, that it has been supported by the Coe College, however, found fault with Church, that the college has acknowledged the board's plan, and the board of trustees its allegiance to the Church and the latter's of Leander Clark College thereupon re- domination over it, and that by the law of scinded all action they had taken adopting the church organization the college and its the plan of the Board of Education and trustees are prohibited from consolidating all other action they had taken looking to with any other college or turning over the ward a consolidation with Coe College. $200,000 endowment fund without the conThereafter the trustees of the college drew sent of the Board of Education, which they up another and materially different plan of have not obtained. consolidation, presented this plan to the These allegations, which the motion to Board of Education, and that board disap- dismiss admits to be true, prohibit any othproved and rejected it. After this disap- er conclusion than that the college holds the proval and rejeetion, the college, in accord- $200,000 endowment fund in trust for the ance with the terms of this rejected plan, use of the Church and its members; that transferred its endowment fund of $200,000 its delivery of that amount to Coe College to the defendant H. J. Stiger, and directed will breach the trust under which it holds, him to convey it to Coe College pursuant and will unavoidably deprive the Church to the terms of the rejected plan. One of and its members of the fund, to their loss the objects of this suit is to prevent the de- in that amount, while such disposition livery of this fund to Coe College and to would inflict no loss or damage upon the preserve it to the Church and its members. Board of Education; and that the latter is

[2] Counsel argue that, because the not and the plaintiff is the proper party to Church delegated to its Board of Education maintain this suit in equity to prevent this the power to supervise its church schools breach of trust and for an accounting for and to determine what church schools and its violation. when should be established, discontinued, [3-5] The second reason why counsel for relocated, or consolidated, it deprived itself the defendants contend that their motion to and its members of the right and power to dismiss the bill was properly granted is bring and maintain suits in equity against that there was a misjoinder of causes of its church schools and colleges and their action, in that the plaintiff by his bill seeks, trustees to prevent violations of the trusts first, an injunction against all the defendunder which they held its property and for ants to prevent their transferring the $200,accountings for property by them disposed 000 endowment fund of Leander Clark Colof through breaches of such trusts. But lege to Coe College, or the carrying out of the proper party to bring and maintain this any plan of merging Leander Clark College suit is the real party in interest in the prop- with Coe College, which does not have the erty or claims in issue—in the $200,000 en- sanction of the Board of Education; and, dowment fund and in the campus or its second, an accounting from all the defendvalue. No facts are averred in the bill that ants that are trustees of Leander Clark Colindicate or tend to prove that the Board lege for the value of the campus and such of Education has or ever had any right, ti- further or other relief as may be necessary tle, or interest in this fund or claim, or and proper in the premises. But there are that the transfer of the property to Coe many reasons why these facts did not warCollege or to the state can ever inflict any rant a dismissal of the bill. In the first damage upon it. The board is nothing but place, if there had been two causes of acan administrative agent of the Church and tion stated in the bill, which could not have 2 F.(20) 17 been conveniently tried together, the court ty of the cestuis or contractees, because secshould not have dismissed the bill, but tion 1647 of the Code of Iowa of 1897, unshould have ordered separate trials. Fed- der which the college was incorporated, eral Equity Rule 26. In the second place, provides that its elected trustees "have the it is not indispensable that all the parties control and management of its affairs and to a suit in equity should have an interest funds”? In support of their contention in all the matters contained in the litiga- that this question should be answered in tion. It is sufficient, if there is a common the affirmative, counsel for the defendants point of litigation, if each party has an first argue that, because the plaintiff did interest in some essential matters involved not set forth at length in his bill the artiin the suit and these matters are connected cles of incorporation of the college, he canwith the others. Brown v. Deposit Co., 128 not insist that the college or its trustees U. S. 403, 412, 9 S. Ct. 127, 32 L. Ed. 468; hold the endowment fund or the campus in Jones v. Missouri-Edison Electric Co., 144 trust for the Church, or have threatened F. 765, 780, 75 C. C. A. 631; Rogers v. to violate or have violated that trust. But Penobscot Mining Co., 154 F. 606, 614, 83 the averments of the bill clearly establish C. C. A. 380. And this bill shows that each such a trust in the college for the use and of the parties to this suit has an interest benefit of the Church, and by their motion in some essential matters involved in it. to dismiss the defendants have admitted the

[6] The vice of multifariousness is the un- truth of those allegations, the trust they esion of causes of action which, or of parties tablished, and the violation and threatened whose claims, it is either impractical or in- violation of it. If there is anything in the convenient to hear and adjudicate in a sin- articles of incorporation of the college or gle suit. Where this vice does not exist, elsewhere in conflict or avoidance of those where it is as practical and convenient for averments, or of the natural and rational the court and the parties to deal with the conclusion from them, the burden was and claims or causes of action presented in one is on the defendants to plead and prove it. suit as in many, the pleading is not multi. Their motion to dismiss and its unavoidfarious, and it should be sustained. West- able admission estop them from presenting inghouse Air Brake Co. v. Kansas City So. such matters here and now. Ry. Co., 137 F. 26, 31, 32, 33, 71 C. C. A. 1, In support of their broad proposition and cases there cited. There can be no that the statute of Iowa, which authorized misjoinder of causes of action in equity in the trustees of the college to “have the conany bill which presents a common point of trol and management of its affairs and litigation, which affects the entire subject- funds," exempted them and the college from matter, and the decision of which will set- liability at law or in equity for such breachtle the rights of all the parties to the suit. es of trust as those alleged in the bill, Watson v. Bonfils, 116 F. 157, 159, 53 C. counsel have cited and we have read the C. A. 535, and cases there cited. The bill opinions in Tash v. Ludden, 88 Neb. 292, tenders a common point of litigation, the 129 N. W. 417, 421; Bradfield v. Roberts, alleged breach of trust of the defendants, 175 U. S. 291, 292, 293, 297, 300, 20 S. Ct. which their motion to dismiss admits, but 121, 44 L. Ed. 168; Allen v. McKean, 1 which, when the grant of that motion is set Fed. Cas. p. 489, No. 229; People v. Presiaside, they may desire to challenge.

dent & Trustees of the College of Califor[7,8] Counsel suggest that the claim for nia, 38 Cal. 166, 173; Lupton v. Leander an accounting for the value of the campus Clark College, 194 Iowa, 1008, 187 N. W. states a cause of action at law. If it does, 496, 501. But we find nothing in the deciit is triable in this court under federal equi- sions or opinions in any of these cases in ty rule 26; but, in our opinion, it consti- support of such a proposition. They go tutes a consistent part of the cause of ac- no farther than to hold that corporations tion in equity for the violation of the trust and their officers may exercise the powers there charged. There was no misjoinder of vested in them rightfully, not wrongfully, causes of action in this bill.

in accordance with, not in violation of, the [9, 10] Are the trustees of the college principles and rules of law and equity, to and the college itself exempt from all lia- convey or dispose of the property they bility at law and in equity at the suit of the hold. cestuis que trust or contractees, for the As this case now stands, under the adbreach of the trusts and the violation of the mitted averments of this bill, the Church contracts under which they hold the proper established the defendant college in 1856. Throughout the existence of this college the 3. Criminal law Om 242(4)–Objection that In.

dictment was insufficient under rules of court Church has supported it. This college has

of district to which removal was sought held acknowledged the domination over it of the without merit. Church. Pursuant to the provisions of the

In habeas corpus proceeding to prevent re

moval from one federal district to another for articles of incorporation of the college, its trial under indictment, objection that indictment trustees have been elected triennially by the did pot disclose names of witnesses who appear: co-operating annual conferences

ed before grand jury, as required by court of of the

district to which removal was sought, is withChurch. During this time the organic law out merit, in absence of proof of rules or deof the Church, the Church Discipline, under cisions to that effect from such court. and subject to which this college was created and supported by the Church, has pro- United States for the District of New Mex

Appeal from the District Court of the vided and still provides that no college shall be discontinued, relocated, or consolidated ico; Orie L. Phillips, Judge. with any other without the consent of the Habeas corpus proceeding by John LoonBoard of Education of the Church. And ey against Secundino Romero, United States now the trustees of this college, and the Marshal for the District of New Mexico. college itself, created and supported as it From a judgment discharging writ, petitionhas been by the Church as part of its re- er appeals. Affirmed. ligious, benevolent, and educational work, William J. Barker, of Santa Fé, N. M., without the consent of the Board of Educa- for appellant. tion of the Church and in violation of its John W. Wilson, U. S. Atty., of Albuorganic law, the Church Discipline, under querque, N. M. (H. S. Bowman, Asst. U. which this college was created and fostered, S. Atty., of Santa Fé, N. M., on the brief), purposes to take its endowment fund of for appellee. $200,000 and its campus away from the

Before STONE, Circuit Judge, and MUNChurch, and from its religious and educa- GER and MILLER, District Judges. tional work, and give them to others. None of the authorities cited sustain such a

STONE, Circuit Judge. [1] This is an course of action. It is unjust, inequitable, appeal from a judgment discharging a writ and it presents a good cause of action for of habeas corpus filed by the appellant to relief in equity. Let the decree of dismissal be reversed, of Illinois for trial under an indictment

prevent his removal to the Southern district and let this case be remanded to the court there charging him with having transported below, with directions to permit the defend- a stolen automobile in interstate commerce, ants to answer the bill, if so advised.

knowing it to be stolen. Two points are here urged. The first is that there was no evidence of probable cause in that there was no evidence tending to show that any

antomobile was, in fact, stolen. The indictLOONEY v. ROMERO, U. S. Marshal.

ment was prima facie evidence of that fact.

Gayon v. McCarthy, 252 U. S. 171, 173, (Circuit Court of Appeals, Eighth Circuit. 40 S. Ct. 244, 64 L. Ed. 513; Tinsley v. October 7, 1924.)

Treat, 205 U. S. 20, 31, 27 S. Ct. 430, 51 L. No. 6586.

Ed. 689. This rule and the reason therefor

are stated by Mr. Justice Brewer in Beav1. Criminal law Om242(5)-Indictment itself is prima facie evidence of probable cause in

ers v. Henkel, 194 U. S. 73, 84, 24 S. Ct. proceeding for removal from one district to 605, 607 (48 L. Ed. 882) as follows: another for trial.

"The thought is that no one shall be subIn habeas corpus proceeding to prevent removal from one federal district to another for jected to the burden and expense of a trial trial, under indictment charging transportation until there has been a prior inquiry and of stolen automobile in interstate commerce, adjudication by a responsible tribunal that of probable cause, and evidence tending to show there is probable cause to believe him guilany automobile was in fact stolen was unneces- ty. But the Constitution does not require sary.

two such inquiries and adjudications. The 2. Criminal law O 242(7)–Proof of identity

and introduction of indictment establishes government, having once satisfied the proprima facie case for removal.

vision for an inquiry and obtained an adjuProof of identity of defendant as one ac- dication by the proper tribunal of the excused in indictment, and introduction of indict; istence of probable cause, ought to be able ment, establishes prima facie case for removal to another district for trial.

without further litigation concerning that

zdajepeal ?

158 (202) 473

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2 F.(2d) 23 fact to bring the party charged into court ment in the federal court for the Southfor trial. The existence of probable cause ern district of Illinois where the indictment is not made more certain by two inquiries was filed. To determine this objection, we and two indictments. Within the spirit of need go no further than to say that no decithe rule of giving full effect to the records sions, rules or rulings to that effect of the and judicial proceedings of other courts, an United States court for the Southern disindictment, found by the proper grand jury, trict of Illinois were offered before the trial should be accepted everywhere through the judge or presented here. United States as at least prima facie evi- This record reveals nothing but an effort dence of the existence of probable cause. by an accused man to delay being brought And the place where such inquiry must be to trial. had and the decision of a grand jury ob- The decree is affirmed and the mandate tained is the locality in which by the Con- ordered issued forthwith. stitution and laws the final trial must be had.

“While the indictment is prima facie evidence it is urged that there are substantial reasons why it should not be regarded as

NATIONAL BANK OF COMMERCE OF conclusive. An investigation before the

NORFOLK v. LAMBORN et al. grand jury, it is said, is generally ex parte -although sometimes witnesses in behalf of

(Circuit Court of Appeals. Fourth Circuita 469,

Od the defendant are heard by it—and the con

No. 2231. clusion of such ex parte inquiry ought not

& du. 17.378. to preclude the defendant from every de- 1. Sales en 177 - Where contract required fense, even the one that he was never with

"shipment” of sugar to be made to Philadel.

phia, buyer was not required to accept shipin the state or district in which the crime is ment made to New York and diverted to Philcharged to have been committed, or

adelphia. thorize the government to summarily arrest “shipment to be made to

Where contract for sale of sugar required

from Java by him wherever he may be found, transport steamer or steamers to Philadelphia," buyers him perhaps far away from his home and were not required to accept sugar which, though

it left Java within time prescribed for shipsubject him among strangers to the difi- ment, was at first consigned to New York, and culties and expense of making his defense. was diverted to Philadelphia only when vessel It is unnecessary to definitely determine this ment," as so used, having a particular meaning.

bound for Philadelphia was disabled; "shipquestion. It is sufficient for this case to de

[Ed. Note. For other definitions, see Words cide, as we do, that the indictment is prima and Phrases, First and Second Series, Shipfacie evidence of the existence of probablement.] cause."

2. Sales 54_Court must give effect to every

term in mercantile contracts. [2] There was ample evidence of the

In construing mercantile contracts, courts identity of the appellant as the one must give effect to every term, and are not at cused in the indictment. This proof of liberty to speculate whether the parties did

or did not attach importance thereto. identity and introduction of the indictment establishes a prima facie case for removal.

In Error to the District Court of the Gayon v. McCarthy, 252 U. S. 171, 173, 40 United States for the Eastern District of S. Ct. 244, 64 L. Ed. 513; Crosland v. Dy- Virginia, at Norfolk; D. Lawrence Gronson, 280 Fed. 105 (5th C. C. A.); Rowe v.

er, Judge. Boyle, 268 Fed. 809, 810 (9th C. C. A.). There was other evidence of probable cause

Action by Arthur H. Lamborn and othintroduced by the government. To some of ers, doing business • as Lamborn & Co., this evidence the objection is made that it against the National Bank of Commerce of was hearsay. Be this as it may, all of that Norfolk. Judgment for plaintiff, and de

Reversed and reevidence may be disregarded and yet, there fendant brings error. remains sufficient to make a prima facie

manded. case for removal. The position of the ap- Tazewell Taylor, of Norfolk, Va., foi pellant at the hearing and his evidence was plaintiff in error. simply to the effect that he did not com- H. G. Connor, Jr., of Wilson, N. C., and mit the crime. That, of course, is a matter Edward R. Baird, Jr., of Norfolk, Va. to be tried out under the indictment.

(Baird, White & Lanning, of Norfolk, Va., [3] The second objection is that the in- and Van Doren, Conklin & McNevin, Louis dictment did not disclose the names of the 0. Van Doren, and Alfred C. B. McNevin, witnesses who appeared before the grand all of New York City, on the brief), for jury, and that such disclosure was a require- defendants in error.

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