Articles Canon Law Other Orthodox

Decision of the Court of California on the Right of the Ownership of the Cathedral in Los Angeles

The decision contains rationale in favor of transferring Transfiguration cathedral from North American Metropolia to the ROCOR

In the Superior Court of the State of California in and for the Country of Los Angeles

Russian Orthodox Church of the Transfiguration of Our Lord, et al, Plaintiffs, vs. Rev. A. Lisen, et al, Defendants.
№ 536, 524
Memorandum of Opinion

 

Overton, Lyman, Plumb & Vermille, by Carl J. Schuck, Attorneys for Plaintiffs; Merton A. Albee, Attorney for Defendants Lisen, et al; Haight, Trippet & Syvertson, and Ralph M. Arkush, Attorneys for Defendant Metropolitan Theophilus.

This is an action for declaratory relief and injunction, involving a determination of the rights of two opposing factions of the membership of the Holy Transfiguration parish and church in Los Angeles, to the control and use of the property of the parish. (It will be referred to herein as “Transfiguration Parish” for the sake of brevity). It is composed of adherents to the Russian Orthodox faith and is a constituent part of the Russian Orthodox Greek Catholic Church. (The latter will be referred to herein as “The Church” for the sake of brevity.) Counsel assert this is a test case for determining the status of all the parishes, thein property and their members, located in the United States, who do not recognize the authority of the present Patriarch in Moscow and his Holy Synod.

All parties profess complete adherence to the faith and dogma of The Church and the court has no reason to believe other than that all of them are sincere in such profession. None of the parties questions the religious sincerity of the others. The plaintiffs represent a group of members of Transfiguration Parish who contend that the existing supreme church administration of The Church is vested in the Holy Bishop’s Sobor and the Holy Bishop’s Synod or Council as organs of the Russian Orthodox Greek Catholic Church Abroad. (It will be referred to herein as “The Church Abroad” for the sake of brevity.) The plaintiffs further contend that that authority is being administered by Archbishop Vitaly, as the ruling bishop of the North American District, and his Bishop’s Sobor and Council, and that Transfiguration. Parish is subject to that authority. The defendants, except for the defendant Metropolitan Theophilus, represent a group of members of Transfiguration Parish who contend that the existing Supreme Church Administration of The Church in North America is vested in the Metropolitan (Theophilus) and his Council, as organs of the North American Metropolitan District Sobor, and that Transfiguration Parish is subject to that authority. The defendant Metropolitan Theophilus is Metropolitan of the North American District and agrees with and supports this contention of the defendant group. Each group contends that the other and its supporters are uncanonical and schismatic. All parties agree that the Supreme Church Administration for which they contend is of a temporary character and will terminate when the Supreme Church Administration is canonically re-established in its former seat in Moscow, Russia, and normal free church life in Russia is restored.

The disagreements between the parties arise out of the chaotic condition in which The Church found itself as a result of the civil war and Bolshevik revolution in Russia, commencing in 1917. The result was a complete disruption of church life in Russia and the execution, imprisonment or exile of a large majority of the bishops and clergy, and millions of the laity.

This court’s approach to the problems involved herein was well expressed by the Honorable Ira F. Thompson in the year 1928 when he wrote the opinion in the case of Dyer v. Superior Court. 94 Cal. App. 260, at 261. The opening paragraph of that opinion reads:

“Everyone who has had occasion to study the nature and character of the controversy which gives rise to the present proceeding, must regret that it ever reached the civil courts. Dissensions among members of a religious body are first to be deplored, but it is more distressing to realize that the sensibilities have been so far excited that means have not been found within the ecclesiastical domain to bring about an amicable adjustment of the disputes. Such, however, is the nature of the judicial calling that although we may be grieved by the consciousness that a body of Christians have been so agitated as to reach to the secular courts for relief from their distress, yet the approach to the problems presented must be with the hope that the principles of justice when applied to the situation cannot fail to be of some benefit to those involved in pointing the way out of the present difficulties.”

The trial of this case has taken eight weeks. Counsel had thoroughly prepared their case and presented all the evidence and law available to them as an aid to the court in determining the issues. To this end scores of exhibits were received in evidence and many witnesses testified. Some of these witnesses were called and were fully qualified as experts in ecclesiastical law. The court was impressed not only with the learning of these expert witnesses but also with their piety and fidelity to the truth as they saw it. Much time was devoted to the study of the Apostolic Canons and those of the Seven Ecumenical Councils and their application to the questions before us. The court was also referred to many standard works of authority upon general and ecclesiastical history. The right of the court to consider such standard works is well expressed in Dyer v. Superior Court supra, at p. 268, where that court said:

“ …To this end it is within the power of the court to consider expert testimony and consult standard works of authority upon the subject. In Arthur v. Norfield Parish Congregational Church Soc., 73 Conn. 718, 731 (49 Atl. 241-246), it is said: ‘What that usage is was a question of fact, as to which, the Court of Common Pleas heard expert testimony and consulted standard works of authority upon the customs and ecclesiastical law which govern this religious denomination. The object and justification of any such resort to printed books is the aid which they may be expected to afford to the court in the exercise of the faculty of judicial notice…”

The history of The Church from the time of Jesus Christ to the present has been most interesting and it is necessary to set forth a brief outline thereof. It was founded by Jesus Christ and His Apostles, and developed as a unit through the early centuries. It has always professed to believe in the doctrine of apostolic succession through the bishops, which succession is regarded as a fundamental and absolutely indispensable feature of The. Church doctrine. Its law is set forth in the Apostolic Canons and those of the Seven Ecumenical Councils held between the years 325 and 781, together with the canons of certain other councils held during the early centuries. The Church was governed by a Patriarch, Holy Synod of Bishops, and a Supreme Church Council. The plaintiffs contend these were and are subject to the final authority of the bishops as they met in a sobor. The defendants contend that the supreme church authority has been and is in a local sobor composed of bishops, clergy and the laity, such as that held in Moscow during the years 1917 and 1918.

As The Church grew it divided into several administrative parts, with separate patriarchs, synods and councils, but has always considered itself as one church, usually referred to as The Eastern Orthodox Church, to distinguish it from the Roman Catholic Church, after their separation in the Tenth Century. Each of these branches is completely autocephalous but considers itself in full communion with the others and accepts the Patriarch in Constantinople as the eldest.

The Orthodox faith developed in Russia in the middle centuries as a part of the supreme church authority in Constantinople and under its Patriarch. Between the years 1448 and 1454, due to theological differences and the capture of Constantinople by the Turks, the Russian Church became independent. From that time until the year 1589 it was autocephalous de facto, and probably de jure. Since 1589 it has. been autocephalous de jure.

The State, through its ruler, whether he was called Emperor or Grand Duke or Czar, always has exercised a powerful influence in church affairs. This has been particularly true in the Russian Church from about the year 1711, under Peter the Great. From that time until the year 1917 it was headed by a Ruling Bishop, usually called a Metropolitan, and was ruled by him and a Holy Synod composed largely of bishops, but to which was attached a layman called the Procurator-General, who represented the Czar and who had an active part in all that was done by the Synod. No general sobor was called during that entire period until the year 1917, when it was called and met in Moscow. There were in attendance all the bishops who were able to attend, two representatives of the clergy and three of the laity from each parish. This sobor elected the first Patriarch (Tikhon) and passed many resolutions of importance. Its enactments are relied upon by all parties. All of these enactments were submitted to a separate conference of the bishops, who attended the sobor, for their approval or disapproval. Shortly after its adjournment in 1918 the life of The Church was completely disrupted by the Revolution and civil war. This was particularly true in so far as the supreme church administration and the Patriarch were concerned. On November 20, 1920, the then Patriarch Tikhon issued a ukaz known as No. 362, which was received in evidence herein as Exhibit 1. This ukaz is relied upon by all parties, although they do not agree as to the meaning of some of its paragraphs. The Patriarch was imprisoned by the Soviet government in 1922 and died shortly thereafter.

In 1919 and 1920 some of the bishops made two or three attempts to form a supreme church administration in southeastern Russia, and succeeded to a certain extent. Thereafter, as the Bolsheviks advanced, they were forced to flee and a number of bishops gathered together in Constantinople for the same purpose. In 1921 twelve bishops, thirty to forty priests, and about one hundred members of the laity, held a sobor in Sremski Karlovski, Serbia. This was done with the approval of the Patriarch of the Serbian Orthodox Church, which was another of the autocephalous churches. This sobor created The Church Abroad as the Temporary Supreme Church Administration for all the faithful outside of Russia. It is upon the canonicity of this administration as it existed from that time forward, and as it exists today, that the plaintiffs, in a large measure, depend. The executive organ of this church has at all times been its ruling bishop and his synod. Zill the bishops throughout the world outside of Russia have from time to time either taken an active part in this synod or have had some connection therewith. There have been some defections from its ranks but it is still recognized as the Supreme Church Administration by many of the parishes in the various countries of the world. These defections. took place mainly in Europe and in North America. The seat of The Church Abroad was removed from Karlovski during World War II and is now in Munich, Germany.

Outside of Russia The Church has for scores of years had parishes in the various countries, of Europe and in parts of the Near East, North Africa, China, Japan, Australia, and North and South America. Some of these were well-organized into Dioceses and others consisted largely of missions. But all of them have at all times considered themselves as an integral part of The Church and were governed prior to 1920 by its executive organs in Moscow.

The North American Diocese was an outgrowth of the Russian colonial expansion from Kamchatka through the Aleutian Islands to Alaska, and down the Pacific Coast, commencing in the Eighteenth Century. By 1900 it was a well-organized Diocese with many parishes throughout the North American continent north of the Mexican line. It was cut off from all communication with Russia in 1919 and more or less existed by itself until 1922. In that year Metropolitan Platon became its head Bishop and continued as such until his death in 1934, when he was succeeded by the defendant Metropolitan Theophilus, who has continued as such Metropolitan until the present time.

There is considerable dispute as to the manner in which Platon became the ruling Archbishop in North America. Prior to 1922 he had served for a time in such capacity. He apparently was elected as such in 1922 by a sobor held in Pittsburgh. On September 23, 1923, the then Patriarch Tikhon wrote a letter declaring that Platon had been appointed as Metropolitan of this district. In 1922 he was appointed Metropolitan of this district by The Church Abroad. Prior to that time and for some time thereafter Platon took an active part in the affairs of The Church Abroad. In 1924 a sobor was held at Detroit which by some of its enactments appeared to claim independence from The Church Abroad. Just prior to the Detroit Sobor, Metropolitan Platon was dismissed by Patriarch Tikhon. In 1927 he was dismissed by the synod of The Church Abroad. He refused to recognize either of these dismissals. From that time until 1935 two separate organizations existed in North America, one under Metropolitan Platon and his successor Metropolitan Theophilus, and the other under certain bishops on behalf of The Church Abroad, each claiming to represent the North American Diocese, and each being acknowledged by many parishes as being their Supreme Church Administration. Many efforts were made to cure this unhappy situation and in 1935 a Bishops’ Sobor was held in Karlovski by The Church Abroad. This was attended by Metropolitan Theophilus and one of his bishops and there was executed a document known as the “Provisional Statute”, about which more will be said later. By this it appeared that the attending parties had composed their differences and that Metropolitan Theophilus was the ruling Archbishop for all the faithful in the North American Diocese under the executive organs of The Church Abroad and that The Church Abroad was the temporary Supreme Church Administration for all the faithful outside of Russia. This agreement was ratified by an All-American Sobor in 1936. Thereafter until 1946 Metropolitan Theophilus and the North American District acknowledged the supremacy of The Church Abroad in many ways.

In November 1946, at an All-American Sobor held in Cleveland, a resolution was adopted which purported to terminate the 1935 Provisional Agreement and to sever all relationship with The Church Abroad. The effect of this resolution was to declare the North American District to be autonomous and subject only to such relationship as it could establish with Patriarch Alexey and his Holy Synod in Moscow.

The Church in Moscow has had a peculiar history from the time of the Revolution. The Bolsheviks were avowedly atheistic and their philosophy of government declared The Church to be an enemy to be destroyed. They made every effort to destroy The Church in the early years, and in large part succeeded in destroying its buildings and in disrupting its services. However, it did not succeed in destroying the faith of its members either in God or in The Church.

In 1923 the Soviet Government caused to be created what was known as the “Renovated” or the “Living Church” and made use for that purpose of a few compliant bishops. By 1927 this Church had ceased to exist. Thereafter a form of supreme church administration was permitted by the Soviet Government under the executive head of a Metropolitan and his synod, which purported to be the supreme church administration for The Church. Some of the activities of The Church and its members were permitted to a limited extent, but always under the rigid control of the Government. By 1939 the Soviets, recognizing the strength of its enemies — particularly Germany — permitted considerable expansion in the exercise of religious functions. This undoubtedly was due to its realization of the necessity of securing the wholehearted support of the Russian people.

In 1945 a so-called All-Russian Sobor was held in Moscow with the permission of the Soviet Government. This sobor was attended by a number of bishops, clergy and laity. It elected Metropolitan Alexy as Patriarch and adopted many resolutions. However, constituted, the Moscow Administration has at all times contended that it is the only Supreme Church Administration. It has been recognized as such by some parishes in North America ever since 1923. Such parishes are grouped together as a North American Diocese, the ruling bishop at the present time being Archbishop Makary. The Moscow Administration has never been a party to this action. However, upon completion of the evidence Attorney Phil Adler, of New York, chief counsel for Archbishop Makary, came before this court, with a local firm of attorneys, and asked leave to appear as amicus curiae. Permission to do so was granted by the court and Mr. Adler made an argument by which he urged that the court find that neither of the parties was canonical and that all parishes of The Church in North America were subject to Archbishop Makary and Patriarch Alexy and his executive organs.

The history of the Transfiguration Parish commences with the year 1930 when a group of those of the orthodox faith in Los Angeles formed a parish under that name for the purpose of practicing their faith under The Church Abroad as the Supreme Church Administration through its ruling bishop of the North American Diocese. In 1934 Transfiguration Parish adopted parochial by-laws which recited: “Pending the restoration of the normal functions of the All-Russian Ecclesiastical Authority and the resumption of the communion with the latter (it) shall be subject to the canonical rule of the Holy Bishop’s Russian Orthodox Synod abroad in the city of Sremski-Karlovtzi and the diocesan Bishop, under the guidance of a priest-rector appointed by the latter.” By virtue of the Provisional Agreement, Transfiguration Church, in 1935, became subject to Metropolitan Theophilus as ruling bishop of the North American District.

In January of 1936 articles of incorporation were filed by certain persons who were members of the church committee of Transfiguration Parish. However, there is no record of any further action being taken thereafter as a corporation and the general membership did not seem to be aware of its existence. The defendants rely in part upon certain paragraphs of these articles, but the court is satisfied that the filing of the articles of incorporation in no way was intended to or did affect the life or the status of the parish, and that no further consideration need be given thereto. The courts of California do not regard the matter of incorporation of religious bodies as of much importance in so far as interchurch matters are concerned. While the law permits such incorporation (Civil Code, secs. 605g, et seq.) it is only as a convenience to assist in the conduct of the temporalities of The Church. The ecclesiastical body is all-important. The corporation is a subordinate factor in the life and purposes of The Church. (Wheelock v. First Presbyterian Church (1897)’ 119 Cal. 477, at 483; First English etc. v. Dysinger (1932) 120 Cal. App. 139, at 148.)

In 1936 a document entitled “The Normal Statutes for the Parishes” was issued by the North American District, being approved by Metropolitan Theophilus, and thereafter the members of our parish in their church meetings appeared to consider that the parochial by-laws and the Normal Statutes contained the rules under which they operated.

Early in 1947 word was received by the members of Transfiguration Parish of the resolution adopted by the Cleveland Sober. This was the immediate cause of the division of the members of the parish into two groups, and eventually resulted in this lawsuit. From February until July 1947 various meetings of the church membership and church committee were held. In one of the early meetings a resolution was adopted by the church membership disapproving the action of the Cleveland Sobor and reaffirming allegiance to The Church Abroad. This resolution was adopted by a vote of almost two to one of those in attendance. Metropolitan Theophilus disapproved this action. Thereafter another meeting was held in July by these among the members who favored the contentions of the defendants, and a resolution was adopted supporting the action of the Cleveland Sobor. This in effect excluded from the parish all those who claimed allegiance to The Church Abroad. Since that time the plaintiffs, under Father Vasily, have been excluded from all participation in The Church building itself and from any control of its real and personal property, and the defendants, under Father Jacob, have been in complete control thereof. Each group has conducted its activities separately, each claiming to represent and be Transfiguration Parish.

The members of Transfiguration Parish, from the time of its organization on, made efforts to obtain a proper building for worship and sufficient personal property to carry on the activities of the parish. Progress was very slow due to the small number of the congregation and their poor financial condition. However, by the middle of 1947, the parish possessed an interest in real property and a church building thereon, a parish house, a small amount of furniture and furnishings, and a few thousand dollars in cash, the exact amount of which is in dispute. If the plaintiffs are successful in this action, we will, by stipulation of the parties, then proceed to take evidence for the purpose of determining the extent and the exact amount of the property to be accounted for by the defendants.

The issue as to the respective rights of the present church administration in Moscow and the parties to this action cannot be determined by the court. Such an issue is not raised by the pleadings, and the admissions and stipulations of the parties are such as to make it necessary for the court to decide this case solely as between the parties themselves. All of them assert abhorrence for the Soviet Government. Mr. Adler, as amicus curiae, made some challenging observations in support of his contentions but had no opportunity to offer any evidence thereon.

A study of all the canons to which the court’s attention has been called has convinced it that the ultimate power and duty to rule The Church was placed in the hands of the bishops (for example Apostolic Canon XXXIV and Antioch IX); That the Grace of God descended from Jesus Christ to His Apostles and from them through the regularly ordained bishops to those who now hold that holy office; That The Church is one whole, composed of the bishops, clergy and the faithful, but that the control of The Church and its maintenance is in the bishops themselves; That when they have determined a matter affecting the whole Church all parts and members thereof must conform thereto; That the bishops must recognize one of their number, usually the oldest in time of ordination, as their head; That neither he nor any of them can act alone on matters that affect the whole Church but that they must consult together for the purpose of securing unanimity of opinion; That if the consent. of all cannot be obtained, then the opinion of the majority must control; That representatives of the clergy and laity may meet with the bishops in a general sobor, but that none of its enactments, on matters that affect the whole Church, become effective until approved by a conference of the attending bishops. These conclusions are well supported by the testimony of plaintiffs’ expert witnesses. Defendants’ experts have given testimony to the contrary but by searching cross-examination their testimony was greatly weakened. They had much difficulty in citing any authority to support their conclusions and in some cases, it was apparent that they were quite uncertain in their own minds.

A study of the history of The Church has served to confirm the above conclusions. While it is true that from time-to-time powerful temporal rulers interfered with affairs of The Church: and the bishops found it necessary to give way, yet the form was always maintained, if possible, so that in theory at least what was done was done by the will of the bishops.

When The Church in Russia was completely disorganized and the supreme administration was destroyed, under the canons it became the duty of the surviving bishops who were not imprisoned to gather together and create a supreme church administration. This was an absolute necessity if the order was to prevail. This is what the bishops who gathered together at Karlovski in the year 1921, did. They invited all the available bishops and many of the clergy and laity to meet with them in a sobor. At that sobor they created the necessary executive organ by electing Metropolitan Anthony, the eldest, as the ruling bishop and by providing for a synod to administer the affairs of The Church until the restoration of a free canonical supreme church administration in Russia. It immediately proceeded to do all things possible to govern all the faithful outside of Russia, wherever situated, and has always continued so to do. A supreme church administration having been created, it was necessary for all bishops, clergy and laity to recognize its authority until the conditions which made its creation necessary ceased to exist. That all the defendants recognized that these conditions had not ceased to exist is shown by the portions of the resolution adopted by the Cleveland All-American Sobor of November 1946, which referred to Patriarch Alexy and his synod in Moscow. This resolution reads in part:

“ …after exhaustive deliberation of our attitude toward the Mother Moscow Orthodox Church, resolved to request His Holiness the Patriarch of Moscow to reunite us (emphasis added) in his fold and to be our spiritual father on condition of our complete autonomy as it exists at present . . Should our terms be unacceptable to His Holiness the Moscow Patriarch, our American Orthodox Church shall also henceforth remain autonomous up to the time when the Moscow Patriarchate deems them acceptable and grants us that which we request.”

If Metropolitan Theophilus and that Sobor had believed that Patriarch Alexy and his synod was the supreme church administration, they would have had no choice in the matter and would not have admitted that they had not theretofore been subservient thereto or attempted to place any conditions upon their recognition of its supremacy.

In addition, the Holy Synod of The Church Abroad has repeatedly declared that a canonical supreme church administration has not been restored in Russia. Since it appears from the pleadings, the evidence and the admissions and contentions of all parties that free church life has not yet been restored in Russia, the court must find that The Church Abroad is still the supreme church administration outside of Russia.

The plaintiffs rely on Ukaz № 362, issued by Patriarch Tikhon and his Holy Synod and Council on November 20, 1920, as well as on the canons, for their adherence to The Church Abroad as the Supreme Church Administration outside of Russia. This ukaz was issued at a time of complete turmoil when it appeared that the Bolsheviks, the enemy of religion and of The Church, were in control of Russia. This ukaz reads in part as follows:

“With the blessings of the Holy Patriarch, the Holy Synod and the Supreme Ecclesiastical Council, in joint session, deliberated upon the necessity — in addition to the instructions already set forth in a circular letter of the Holy Patriarch concerning the eventuality of the cessation of the functions of the diocesan councils — of issuing similar instructions to the diocesan bishops in cases where the dioceses should be isolated from the supreme ecclesiastical administration, or should the work of the latter be terminated. On the strength of the earlier deliberations, it has been resolved:

2. In case a diocese, as a result of the shift of a front, the alteration of the state frontier, etc., should find itself cut off from, all communications with the Supreme Ecclesiastical Administration, or should the latter itself, headed by the Holy Patriarch, for some reason cease to function, the diocesan bishop shall forthwith communicate with the bishops of the adjoining dioceses for the purpose of organizing a supreme organ of ecclesiastical authority [1] (be it in the form of a provisional supreme ecclesiastical government, or a metropolitan district, or otherwise). for several dioceses finding themselves in the same condition.

3. The task of organizing a supreme ecclesiastical organ for a whole group of dioceses confronted with a situation described in cl. 2, constitutes the unfailing duty of the bishop holding the senior rank in that group.

10. All measures which shall be locally adopted, pursuant to the present instructions, shall be later submitted to the central Ecclesiastical Administration for ratification, should that Administration be restored.”

All parties agree that the issuance of this ukaz was in accordance with the canons and that it was valid, but the defendants contend that the administration provided for therein was to be restricted to separate dioceses, or at the most to one or more dioceses that adjoined one another. With this contention, the court cannot agree. A fair reading of the ukaz, in the light of the canons, the necessity that there be but one church with one head and the emergency which existed, has caused the court to conclude that the ukaz was designed for the purpose of causing to be created a supreme church administration for the whole Church throughout the world, outside of the boundaries controlled by the Bolsheviks. It is therefore additional support for the creation and existence of the Supreme Church Administration of The Church Abroad.

The Bishops’ Sobor and the Holy Synod of The Church Abroad constitute the supreme judicial tribunals of the church organization upon matters of faith, discipline, general policy and tenets of the church. Its decisions are binding the civil courts, except when it is clear beyond doubt that the fundamental principles of the church have been destroyed. (Watson v. Jones (1872) 20 L. Ed. 666, at 676; Wheelock v. First Presbyterian Church (1897) 119 Cal. 447, at 482; Horsman v. Allen (1900) 120 Cal. 131, at 136; Committee on Missions v. Pacific Synod, 157 Cal. 105, at 120 and 128; Dyer v. Superior Court (1928) 94 Cal. App. 260, at 269; First English etc. v. Dysinger (1932) 120 Cal. App. 139, at 145.) When a person joins an organized society such as a church, which is under the supervision and control of higher church courts, he necessarily agrees to abide by its rules of government and the judgments of its courts regularly made. (Committee on Missions v. Pacific Synod, supra, at p. 122; Watson v. Jones, supra, at p. 676.) The Bishops’ Sobor and the Holy Synod of The Church Abroad have on numerous occasions declared that all of the faithful outside of Russia, who did not recognize its authority as the supreme church administration were schismatic and that all must recognize its regularly appointed bishops and clergy and be subject to them in all things.

In February 1947 the Holy Synod of the Bishops of The Church Abroad issued a ukaz by which it declared the resolution of the Cleveland Sobor of 1946 to be uncanonical and of no effect, and declared the five bishops, who had disapproved the Cleveland resolution and remained faithful to The Church Abroad, to be the ruling authority, under Archbishop Vitaly, for the North American District. The bishops in North America who remained faithful to The Cnurch Abroad, at an archbishops’ conference held on June 15, 1947, at Jordanville, New York, under the leadership of Archbishop Vitaly, re-affirmed their allegiance to The Church Abroad, and likewise declared the Cleveland resolution to be uncanonical and of no effect. Having found that these ecclesiastical tribunals validly exist, and that they had decided the questions at issue, this court must apply them to the facts found and declare those subjects to these tribunals (the parties hereto) to be bound thereby.

The reliance of the plaintiffs upon the Provisional Statute of 1935 as support for the judgment sought by them is well founded. By that statute all of the defendants submitted themselves to and recognized the executive organs of The Church Abroad as the Supreme Church Administration outside of Russia. Paragraph II reads as follows:

“The supreme legislative, judicial and administrative organ of the Russian Orthodox Church Abroad shall be the Bishops’ Sobor annually convened, and its effective organ shall be the Holy Bishops’ Synod.”

It then provided for the submission to that Sobor and Synod, for their approval, of all acts done by or matters concerning all the dioceses and parishes outside of Russia, generally required by the canons to be so submitted to a supreme church administration. These matters are provided for in great detail by the statute.

While this statute was signed by the defendant Metropolitan Theophilus, he and the other defendants contend that, the resolution of the general sobor of the North American District, which ap wed it, was in such form as to modify it in many respects and that in reality the North American District retained its autonomy. A study of the sobor’s approving resolution does not support this contention of the defendants. That it was not the intention of the defendant Metropolitan Teophilus and his synod and council to modify the Provisional Statute, and that they believed it to be in full force and effect, is shown by their conduct thereafter. The evidence discloses that between 1936 and 1946 the defendant Metropolitan Teophilus, his synod and council, and his bishops did all of the things required by the statute. Counsel for the plaintiffs have submitted to the court a list, under, twenty-three general heads, setting forth matters submitted to the executive organs of The Church Abroad by Metropolitan Teophilus his synod and council, and his bishops. In addition, the evidence discloses many acts and statements by Metropolitan Theophilus and his bishops which can only be interpreted as acknowledgments of the supremacy of the executive organs of The Church Abroad. Defendants have made little if any attempt to dispute this recognition by them of this supremacy during the period in question. However, they contend that they had the right and privilege of terminating the provisional statute at any time they saw fit, and that such termination was effected by the resolution of the Cleveland Sobor of 1946. No right of termination is provided by the Provisional Statute. From the evidence it is clear that the only termination time contemplated was upon the restoration of normal, free church life in Russia. The defendants have cited to the court no canon which can be construed as giving to Metropolitan Theophilus or his bishops, clergy and laity the right to separate themselves from a temporary supreme church administration, such as The Church Abroad, after that administration had been canonically created and the North American District had become a part thereof.

There is another serious weakness to the defendants’ position in relying on the resolution of the 1946 Cleveland Sobor. That sobor was called by a nakaz, issued by the Pre-Sobor Committee appointed by Metropolitan Theophilus, which provided in part as follows:

“35. The bishops-members of the Sobor shall form a Bishops’ Conference to which the decisive vote shall belong concerning all of the decisions of the Sobor except on financial and economic matters.”

The sobor itself, however, refused to abide by the above provision of the nakaz and declared that its enactments would be effective as soon as adopted by the sobor. The defendants have strenuously urged that the Cleveland Sobor had this power and that supreme power has always been lodged in a general sobor composed of bishops, clergy and laity. The only support they have advanced for this contention is the following declaration of the general sobor held in Moscow in 1917-1918:

“1. In the Russian Orthodox Church the highest authority — law-making, administrative, judicial and con-trolling — pertains to the local council convoked periodically at determined periods, composed of bishops, clergy and laity.”

However, all the enactments of that sobor were admitted for approval or disapproval to a separate conference of all the bishops who were in attendance. Furthermore, under the canons, that sobor had no power to control the manner in which any future sobor conducted its affairs. The California Supreme Court, in the case of Horsman v, Allen, supra, at p. 139, while passing upon a similar situation involving the general conference of the Church of the United Brethren in Christ, declared:

“…But it is a fundamental principle of the law that a legislative body cannot derogate from the powers of its successors, and that the latest act must always control. The maxim is, Leges posieriores priores contrarias abrogant (1 Rep. 25 b, cited Broom’s Legal Maxims, 28); and it is difficult to perceive how the application of this maxim can be escaped.”

The defendants have cited no canon to support their contention that supreme power is lodged in a general sobor composed of bishops, clergy and laity. As was previously stated in this opinion, a study of the canons has convinced the court that the control of the church and its maintenance has been placed in the bishops themselves. Unless it is necessary for all matters acted upon by a general sobor, affecting the whole church, to be submitted to the conference of bishops, it would be possible for the control of The Church to be almost completely in the hands of the laity. In all general sobors the proportion of delegates from the laity is so large that their unanimous vote when added to that of a small fraction of the clergy would constitute a majority. In other words, it. would be possible for all the bishops and practically all. the clergy in attendance at a general sobor to be opposed to a resolution affecting the welfare of the entire church and yet for that resolution to be adopted and become effective. The court is convinced that no such state of affairs was ever contemplated by the founders of The Church.

From the time of its founding Transfiguration Parish has been a Dart of and has maintained its allegiance to The Church Abroad. It was founded by a group, composed in part of emigres from Russia, who acknowledged the authority of The Church Abroad. At the request of this group the Ruling Bishop of The Church Abroad in North America assigned to it its first priest. It only acknowledged the immediate supervision of the defendant Metropolitan Theophilus, because he became a part of The Church Abroad by virtue of the Provisional Statute of 1935. Its by-laws specifically provided that it was subject to The Church Abroad and its diocesan bishop, and under the guidance of a priest appointed by such bishop. In 1936 it received the normal parish statutes distributed under the direction of the defendants Metropolitan Theophilus and thereafter conducted its affairs by reference to its by-laws and these statutes. While these statutes made no reference to The Church Abroad, the membership continued to consider that that portion of its by-laws which did refer to The Church Abroad was still binding. When informed of the enactment of the Cleveland Sobor’s resolution of 1946, its membership, by almost a two-to-one majority, refused to be bound thereby and reaffirmed their allegiance to The Church Abroad and elected a Church Committee, the majority of whom were of the same determination.

The subsequent actions of the defendants in electing their own Church Committee and recognizing Father Jacob as their priest, under defendant Metropolitan Theophilus, was of no effect. Transfiguration Parish being an integral part of The Church Abroad, the action of some of its members, or the uncanonical action of the defendant Metropolitan Theophilus, could not affect its status. Transfiguration Parish has always been and is now an integral part of The Church Abroad.

The property of Transfiguration Parish which is at issue in this case is trust property. Through the generosity of its members this property was acquired by the Parish for the use of a religious congregation as an integral part of The Church Abroad. The plaintiffs, being composed of the members who maintain their allegiance to The Church Abroad, are entitled to the use and control of this property. As stated in Watson v. Jones, supra, at p. 676:

“…and so long as any existing. religious congregation can be ascertained to be that congregation, or its regular and legitimate successor, it is entitled to the use of the property. … We are bound to look at the fact that the local congregation is itself but a member of much larger and more important religious organization and is under its government and control and is bound by its orders and judgment.”

While there is some satisfaction in knowing that a majority of the members of Transfiguration Parish will have control of the parish and its property, the plaintiffs would still be entitled to judgment if they were in the minority. The courts have consistently held that whenever there is a minority of a church membership, no matter how small, who acknowledge the authority of the supreme church administration of which that parish is a part, that minority is entitled to the control, use and benefit of the trust property of the parish. (Watson v. Jones, supra; Horsman v. Allen, supra; Dyer v. Superior Court, supra.)

Reference has been made by counsel to litigation between factions of The Church in North America. Only two of these cases were passed upon by the appellate courts. One was a New York case in which the litigation was between the group represented by the defendant Metropolitan Theophilus and the group represented by the Moscow administration. Since we are not concerned with the respective rights of these parties, we need give no consideration to the opinion in that case. In the other case the litigants were representative of the same groups who are now before us. That was the case of Russian Orthodox Greek Catholic All Saints Church v. Kedrovsky, et al, 156 Atl. 688, decided by the Supreme Court of Errors of Connecticut in 1931. While it did not consider some of the issues involved in our case, and the evidence introduced was comparatively limited, some of the observations of the court are of considerable interest to us. After a review of the evidence the court gave judgment in favor of those in accord with our plaintiffs. In the courtse of its opinion it said (p. 691):

“Ordinarily where there is a schism in a member of an associated church body, such as the Russian Orthodox Greek Catholic Church, the rule to determine which division will be accorded the higher right is thus stated: ‘The title of the church property of a divided congregation is in that part of it which is acting in harmony with its own laws, and the ecclesiastical laws, usages, customs, and principles which were accepted among them before the dispute began, are the standard for determining which party is right’ Zollmann, American Civil Church Law (77 Columbia University Studies) 182; Smith v. Pedigo, 145 Ind. 361, 375, 33 N. E. 777, 44 N. E. 363, 19 L. R. A. 433, 32 L., R. A. 838; True Reformed Dutch Church v. Iserman, 64 N. J. Law, 506, 45 A. 771; Barton v. Fitzpatrick, 187 Ala. 273, 65 So. 390…

The vital difference between the two consists of little more than this: One recognizes the right of Archbishop Rojdesvensky (successor to our Metropolitan Platon) to rule the diocese, and the other, that of Archbishop Appolinary (predecessor of our Archbishop Vitaly).

As far as the former is concerned, his appointment by the Karlovtzi Synod having become ineffective by his removal from office by that body, he can only claim under his permanent appointment by the Patriarch. By the laws of the church, the Patriarch is given charge of Tilling in due time the vacant chairs of diocesan bishops,’ but the full provisions elsewhere made in these laws for the choice of bishops by election by other bishops, the Sacred Synod, or the Supreme Church Authority, indicate clearly that the Patriarch has no power by himself to make a permanent appointment of an archbishop to have charge of a diocese. Moreover, the connection of Archbishop Rojdesvensky with the Detroit sobor, which was attempting a virtual separation of the American branch of the church, implicates him in a movement hostile to the continuance of the established organization of the church general. On the other hand, the Karlovtzy Synod is attempting to carry out as best it may, in view of the disruption of the church, a central organization representing the traditional polity of the church, and it is the only body which apparently is attempting to do this. Allegiance to that body by any branch of the church goes as far toward preservation of the unity of the church general as it is now possible to go.”

Counsel for the defendants have urged that the court should apply the rule or doctrine of ekonomie, which according to the witnesses is a rule which permits certain departures from the strict letter of the canons when necessary to preserve the church law in spirit and thought, and when such departures would result in benefit to the church. Examples given of the application of this doctrine have been cases where the punishment provided by the canons for violation of church law have been modified as the circumstances surrounding the offense seemed to justify and the occasions on which The Church has bent to the will of the temporal authorities. Counsel for the defendants seem to be of the opinion that because of the great changes that have occurred since the establishment of The Church, particularly in the social, political and economic life of the people, and the development of democratic principles, the court has the right to apply this doctrine of ekonomie and declare that the action of the defendants in separating themselves from The Church Abroad was valid. In order to do so the court would be forced to find that the canons upon which The Church was founded and under which it has been maintained can be changed by force of circumstances instead of by action of an ecumenical council. With this the court cannot agree. To do so would open the door to the destruction of the very foundations of The Church. The application of such a doctrine should be left to the ecclesiastical courts, especially when there is involved such vital church problems as those before this court.

It is the hope of the court that its decision may have a part in healing the schism that now exists and that these separate groups of devout Christians will once more become a harmonious whole devoted to advancement of the religious life of their faith.

Upon completion of the evidence as to the extent and nature of the trust property involved, judgment will be rendered for the plaintiffs, declaring them to be entitled to the control, use and benefit of all such property and to be the true representatives of The Church in Transfiguration Parish, in substance as prayed for in plaintiffs’ complaint.

Dated this 29th day of November, 1948

JOSEPH W. VICKERS

Judge of the Superior Court

 

OVERTON, LYMAN, PLUMB, PRINCE & VERMILLE

733 Roosevelt Building

Los Angeles, 14, California

VA 7133

Attorneys for Plaintiffs

IN THE SUPERIOR COURT THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES

No. 536524

RUSSIAN ORTHODOX CHURCH OF THE TRANSFIGURATION OF OUR LORD, a non-profit corporation; REV. VASILY SHAPOSHNIKOFF, as Rector of said corporation; V. A. LISITZEN, as Church Karden of said corporation; M. N. STRONIN, NICOLAUS ZANE, GEORGE BLAGOI, GALINA CALWAY, A. SVESHNIKOFF, ELLEN STAROSTIN, as members of the Church Committee of said corporation; ANASTASIA SHEREMETEFF and SOPHIE CHRISTOFF; for themselves and for the benefit of all of the members of the Russian Orthodox Church of the Transfiguration of Our Lord, who adhere and are loyal to the Russian Orthodox Greek Catholic Church Abroad,

Plaintiffs,

vs.

REV. A. LISIN, REV. JACOB PSHENICHNIUK, METROPOLITAN THEOPHILUS, VASILY S. NICOLS, ZLATA POLOVTZOVA, S. G. FINN, S. MOURATOFF, J. MAXIMOFF, A. M. SHIPOV, OLGA BEKISCH; on their own behalf and on behalf of all members of Plaintiff Russian Orthodox Church of the Transfiguration of Our Lord who are allied with said Defendants and who refuse to adhere and be loyal to the Russian Orthodox Greek Catholic Church Abroad; BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, a national banking association, and WILSHIRE FEDERAL SAVINGS & LOAN ASSOCIATION OF LOS ANGELES, a Federal savings and loan association,

Defendants.

The above entitled cause came on regularly for trial in the above entitled Court, in Department 1 thereof, on September 15, 1948, and was continued from day to day thereafter until September 20, 1948, and then it came on for trial in the above entitled Court and was tried in Department 20 thereof before the Honorable Joseph W. Vickers on the following dates: September 20, 21, 22, 23, 24, 27, 28, 29, 30, October 1, 4, 5, 6, 7, 8, 11, 13, 14, 15, 18, 19, 20, 22, 25, 26, 27, 28, 29, November 1, 3, 4, 5, 8, 9, 10, 12, 13, 15, 16, 29, December 6, 7, and 8; Messrs. Overton, Lyman, Plumb, Prince & Vermille by Carl J. Schuck appearing for plaintiffs, Messrs. Morrow & Trippet and Merton A. Albee and Ralph Montgomery Arkush by Merton A. Albee and by Ralph Montgomery as of counsel, appearing for defendant Metropolitan Theophilus; Messrs. Geo. L. Beckwith and Hugo A. Steinmeyer by Geo. L. Beckwith appearing by way of answer only as attorneys for defendant Bank of America National Trust & Savings Association; С. M. Castruccio appearing by way of answer only as attorney for defendant Wilshire Federal Savins & Loan Association of Los Angeles; and Merton A. Albee appearing as attorney for all other defendants not previously in this paragraph named; the existing Moscow administration headed by Patriarch Alexy, claiming to be the head of the Russian Orthodox Church, not being a party herein but having appeared herein by Messrs. Philip Adler and Pacht, Warne, Ross & Bernhard by Philip Adler and Clore Warne as amicus curiae only, by permission of the Court, no permission having been granted, however, to offer or introduce evidence herein,, said permission being limited solely to oral argument, which said argument was made at the conclusion of the trial by said Philip Adler; the Court sitting without a jury, a jury having been expressly waived by all parties hereto, and the cause having been heard, and evidence, both oral and documentary, having been introduced, and received, and the Court having referred to many standard works of authorities upon general and ecclesiastical history and law, and the cause having been submitted for decision, and the Court having heretofore made and caused to be filed herein its written Findings of Fact and Conclusions of Law, and being fully advised:

THEREFORE by reason of the law and the Findings of Fact aforesaid, IT IS ORDERED, ADJUDGED, DECLARED AND DECREED as follows:

I

That plaintiff Rev. Vasily Shaposhnikoff is the duly appointed, qualified and acting rector or pastor of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord, and that defendant Rev. Jacob Pshenichniuk is not the duly appointed, qualified or acting rector or pastor of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord.

II

That plaintiff V. A. Lisitzen is the duly elected, qualified and acting church warden of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord, and plaintiffs Nicolus Zane, Geor¬ge Blagoi, Galina Calvay, A. Sveshnikoff and Ellen Starostin, and each of them, are the duly elected, qualified and acting members of the church committee of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord, and that neither defendants Vasily S. Nicols, Zlata Polovtzova, S. G. Finn, S. Mouratoff, J. Maximoff, A. M. Shipov or Olga Bekisch are the duly elected, qualified or acting church warden or members of the church committee of Russian Orthodox Church of the Transfiguration or Our Lord.

III

That defendant Metropolitan Theophilus is not the lawful diocesan bishop of or over, and has no authority of any nature whatsoever of or over, plaintiff Russian Orthodox Church of the Transfiguration of Our Lord, and that defendant A. Lisin has no authority of any nature whatsoever of or over plaintiff Russian Orthodox Church of the Transfiguration of Our Lord.

IV

That Archbishop Tikhon is the duly elected, appointed, qualified and acting diocesan bishop of and over plaintiff Russian Orthodox Church of the Transfiguration of Our Lord.

V

That plaintiff Russian Orthodox Church of the Transfiguration of Our Lord holds in trust for the use and benefit of the said Church as a constituent member of the Russian Orthodox Church Abroad and for the benefit of all members of said church who adhere to the faith and doctrines of said church and who are and continue to remain loyal to, and abide by, and submit to the orders and jurisdiction of the Russian Orthodox Church Abroad, its governing organs and its duly constituted tribunals, authorities and representatives, all property of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord, including, but not limited to, the following described property:

(a) That certain real property situated in the City of Los Angeles, County of Los Angeles, State of California, more particularly described as follows:

The East half of Lot 9 of the portion of Lot 66 of the West portion of the Lick Tract, in the City of Los Angeles, County of Los Angeles, State of California, as per map in Case No. 7025, Superior Court of said Los Angeles County;

together with all improvements situated thereon, including particularly that certain church building, the street address of which is 5433 Fountain Avenue, Los Angeles, and that certain two-story parish house, the street number of which is 5430 Ferawood Avenue, Los Angeles, California, subject, however, with respect to said two-story parish house only, to the rights of Joe Chiaka under that certain Agreement made between Joe Chiaka and his wife, Domna Chiaka and the Russian Orthodox Church of the Transfiguration of Our Lord on or about January 12, 1939, which said Agreement is recorded in BOOK 19087 at page 19 of Official Records, County of Los Angeles, State of California.

(b) All personal property situated m or on the said real property described under item (a) above, together with all other personal property belonging to plaintiff Russian Orthodox Church of the Transfiguration of Our Lord, including, but not limited to, all that property more particularly described in “Inventory of Personal Property of Russian Orthodox Church of the Transfiguration of Our Lord as of November 30, 1948”, attached hereto as Exhibit “A” and by this reference made a part hereof as if set forth in full.

(c) All cash, funds, moneys, deposits and credits of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord, including particularly, but without limitation, all deposits of said plaintiff with defendant Bank of America National Trust & Savins Association, including all funds, and credits, in the following accounts with said defendant bank, to wit, savings account No. 3545 in the name of “Russian Orthodox Church of the Trans-figuration”, savings account No. 4879 in the name of “Holy Transfiguration Russian Orthodox Church”, and commercial account in the name of “Ladies Association of Russian Orthodox Church”, and all funds and credits belongings to said plaintiff on deposit with defendant Wilshire Federal Savings & Loan Association of Los Angeles, including all funds and credits in account No. 3-3167 of said defendant Wilshire Federal Savings & Loan Association of Los Angeles.

(d) All credits owing to, and causes of action and judgments belonging to, plaintiff Russian Orthodox Church of the Transfiguration of Our Lord, including particularly, but without limitation, the subject judgment against all DEFENDANTS herein.

VI

That plaintiffs Russian Orthodox Church of the Transfiguration of Our Lord, Vasily Shaposhnikoff, V. A. Lisitzen, Nicolus Zane, George Blagoi, Galina Calway, A. Sveshnikoff and Ellen Starostin, and their successors, as well as all members of said plaintiff church who adhere to the faith and doctrines of said church and who are, and continue to remain, loyal to, and abide by and submit to the orders and jurisdiction of the Russian Orthodox Church Abroad, its governing organs and the duly constituted tribunal, authorities and representatives, have the sole right to the use and occupation of the property of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord, including the property referred to m paragraph V hereof, for the purpose of worshiping and of carrying on and conducting all of the affairs of said church.

VII

Plaintiff Russian Orthodox Church of the Transfiguration of Our Lord has the sole right to use the name “Russian Orthodox Church of the Transfiguration of Our Lord” and the name “Holy Transfiguration Russian Orthodox Church”.

VIII

That defendants Rev. A. Lisin, Rev. Jacob Pshenichniuk, Metropolitan Theophilus, Vasily S. Nicols, Zlata Polovtzova, S. G. Finn, S. Mouratoff, О. M. Shipov and Olga Bekisch, and their successors, servants, attorneys, agents, and all others acting in aid or assistance of them, and all other members of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord who are allied or in league with them and are in revolt against the Russian Orthodox Church Abroad, its governing organs and its duly constituted tribunals, authorities and representatives, have no right, title or interest in any of the property of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord, including particularly, but without limitation, the property described in paragraph V hereof, and including also any and all cash, funds, monies, or credits of said plaintiff church held by said defendants, including all sums received by said defendants for and on behalf said plaintiff church as income, donations, or otherwise, subsequent to November 26, 1948, and until such time as defendants deliver up to plaintiffs all of the said property, and said defendants, and each of them, are hereby ordered to vacate, turn over and deliver up to the plaintiffs herein, or to their lawful successors, all of the said property, and to execute and deliver to plaintiffs any and all documents, releases, instruments or papers, of any nature watsoever that may*be necessary or advisable in order to transfer possession and control of said property from said defendants to plaintiffs.

IX

That defendant Bank of America National Trust & Savings Association release and deliver up to plaintiff Russian Orthodox Church of the Transfiguration of Our Lord the following sums, as well as any and all other sums deposited or credited to the following accounts since November 29, 1948:

(a) The sum of $33.80 in savings account No. 3545, in the name of “Russian Orthodox Church of the Transfiguration”;

(b) The sum of $747,73 on deposit in account No. 4879, entitled “Holy Transfiguration Russian Orthodox Church”;

(c) The sum of $1,284.98 on deposit in a commercial account entitled “Ladies Association of Russian Orthodox Church”;

all of said accounts being with the Western and Santa Monica Branch of said bank.

X

That defendant Wilshire Federal & Loan Association of Los Angeles release and deliver up to plaintiff Russian Orthodox Church of the Transfiguration of Our Lord the sum of $1,274.75 on deposit in account No. 3-3167 in the names of Jacob Pshenichniuk (Rev.), Nicols and Sergey G. Finn, and any and all other sums deposited in or credited to said account after November 29, 1948.

XI

That defendants Rev. A. Lisin, Rev. Jacob Pshenichniuk, Metropolitan Theophilus, Vasily S. Nicols, Zlata Polovtzova, S. G. Finn, S. Mouratoff, J. Maximfof, A. M. Shipov and Olga Bekish, and their successors, attorneys, servants and agents, and all others acting in aid or assistance of them, and all other members of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord who are allied or in league with them and are now in revolt against the Russian Orthodox Church Abroad, its governing organs and its duly constituted tribunals, authorities and representatives, be and they hereby are permanently enjoined from in any manner interfering with the right of the plaintiff Russian Orthodox Church of the Transfiguration of Our Lord and the plaintiffs Rev. Vasily Shaposhnikoff, V. A. Lisitzen, Nicolus Zane, George Blagoi, Galina Calway, A. Sveshnikoff and Ellen Starostin, and/or their successors,and members of said church who are and remain loyal to, and abide by, and submit to the orders and jurisdiction of the Russian Orthodox Church Abroad, its governing organs and its duly constituted tribunals, authorities and representatives, to enter upon, occupy, use and otherwise possess the property of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord for religious, educational, charitable, social and other purposes connected with the affairs of plaintiff church.

XII

Defendants Rev. A. Lisin, Rev. Jacob Pshenichniuk, Metropolitan Theophilus, Vasily S. Nicols, Zlata Polovtzova, S. G. Finn, S. Mouratoff, J. Maximoff, A. M. Shipov, and Olga Bekisch, their successors, attorneys, servants, and agents, and others acting in aid or assistance of them, and all other members of plaintiff Rus¬sian Orthodox Church of the Transfiguration of Our Lord who are allied or in league with them and are now in revolt against the Russian Orthodox Church Abroad, its governing organs and its duly constituted tribunals, authorities and representatives, be and they hereby are permanently enjoined from in any manner transferring, assigning, encumbering, secluding or disbursing, or causing to be transferred, assigned, encumbered, secluded or disbursed, any funds, moneys, credits or deposits of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord.

XIII

That plaintiff Russian Orthodox Church of the Transfiguration of Our Lord do have and recover of and from defendants Rev. Jacob Pshenichniuk, Metropolitan Theophilus, Vasily S. Nicols, Zlata Polovtzova, S. G. Finn, S. Mouratoff, J. Maximoff, A. M. Shipov and Olga Bekisch the sum of $9,077.84.

XIV

Jurisdiction is hereby retained, and reserved over the subject matter in this litigation and over the parties hereto to make such other and further orders herein as may be necessary or advisable, in order to obtain performance of the acts ordered herein; until performance of said acts and full satisfaction of said judgment; to determine and declare who are the lawful successors of plaintiff Vasily Shaposhnikoff as rector, plaintiff V. A. Lisitzen as church warden, and plaintiffs Nicolus Zane, George Blagoi, Galina Calway, A. Sveshnikoff and Ellen Starostin as members of the church committee of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord; to require and order defendants herein, other than defendant bank and defendant savings and loan association, to make and render a further accounting to plaintiffs of all funds and property chargeable to said defendants and all credits allowable to them on account of cash, funds and credits belonging to plaintiff Russian Orthodox Church of the Transfiguration of Our Lord, received by them and disbursements made by them during the period from November 26, 1948, to and including the date on which said defendants deliver possession to plaintiffs of all property of plaintiff Russian Orthodox Church of the Transfiguration of Our Lord. Any petition or application for such further accounting must be filed within ninety (90) days after plaintiffs, or their lawful successors, receive possession of all the property of the church from said defendants. Service of process in that regard may be made upon Mr. Merton A. Albee, attorney of record for said defendants, or in any other manner as the Court may order.

XV

That plaintiff Russian Orthodox Church of the Transfigura­tion of Our Lord do have and recover of and from defendants Rev. A. Lisin, Rev. Jacob Pshenichniuk, Metropolitan Theophilus, Vasily S. Nicols, Zlata Polovtzova, S. G. Finn, S. Mouratoff, J. Maximoff, A. M. Shipov and Olga Bekisch the sum of $ ……….as and for costs of suit herein.

Dated: December 31, 1948

Joseph W. Vickers

Judge of the Above Entitled Court

OVERTON, LYMAN, PLUMB, PRINCE & VERMILLE

733 Roosevelt Building

Los Angeles, 14, California

VA 7133

Attorneys for Plaintiffs

IN THE SUPERIOR COURT THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES

No. 536524

RUSSIAN ORTHODOX CHURCH OF THE TRANSFIGURATION OF OUR LORD, a nonprofit corporation; REV. VASILY SHAPOSHNIKOFF, as Rector of said corporation; V. A. LISITZEN, as Churchwarden of said corporation; M. N. STRONIN, NICOLUS ZANE, GEORGE BLAGOI, GALINA CALWAY, A. SVESHNIKOFF, ELLEN STAROSTIN, as members of the Church Committee of said corporation; ANASTASIA SHEREMETEFF and SOPHIE CHRISTOFF; for themselves and for the benefit of all of the members of the Russia Orthodox Church of the Transfiguration of € Lord, who adhere and are loyal to the Russian Orthodox Greek Catholic Church Abroad,

Plaintiffs,

vs.

REV. A. LISIN, REV. JACOB PSHENICH- NIUK, METROPOLITAN THEOPHILUS, VASILY S. NICOLS, ZLATA POLOVTZOVA, S G. FINN, S. MOURATOFF, J. MAXIMOFF, A. M. SHIPOV, OLGA BEKISCH; on their own behalf and on behalf of all members of Plaintiff Russian Orthodox Church of the Transfiguration of Our Lord who are allied with said Defendants and who refuse to adhere and be loyal to the Russian Orthodox Greek Catholic Church Abroad; BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, a national banking association, and WILSHIRE FEDERAL SAVINGS & LOAN ASSOCIATION OF LOS ANGELES, a Federal savings and loan association,

Defendants.

The above entitled cause came on regularly for trial in the above entitled Court, in Department 1 thereof, on September 15, 1948, and was continued from day to day thereafter until September 20, 1948, and then it came on for trial in the above entitled Court and was tried in Department 20 thereof before the Honorable Joseph W. Vickers on the following dates: September 20, 21, 22, 23, 24, 27, 28, 29, 30, October 1, 4, 5, 6, 7, 8, 11, 13, 14, 15, 18, 19, 20, 22, 25, 26, 27, 28, 29, November 1, 3, 4, 5, 8, 9, 10, 12, 13, 15, 16, 29, December 6, 7, and 8; Messrs. Overton, Lyman, Plumb, Prince & Vermille by Carl J. Schuck appearing for plaintiffs, Messrs. Morrow & Trippet and Merton A. Albee and Ralph Montgomery Arkush by Merton A. Albee and Ralph Montgomery Arkush as of counsel, appearing for defendant Metropolitan Theophilus; Messrs. Geo. L. Beckwith and Hugo A. Steinmeyer by Geo. L. Beckwith appearing by way of answer only as attorneys for defendant Bank of America National Trust & Savings Association; С. M. Castruccio appearing by way of answer only as attorney for defendant Wilshire Federal Savings & Loan Association of Los Angeles; and Merton A. Albee appearing an attorney for all other defendants not previously in this paragraph] named; the existing Moscow administration headed by Patriarch Alexy, claiming to be the head of the Russian Orthodox Church not being a party herein but having appeared herein by Messrs. Philip Adler and Pacht, Warne, Ross & Bernhard by Philip Adie and Clore Warne as amicus curiae only, by permission of the Court, no permission having been granted, however, to offer c introduce evidence herein, said permission being limited solely the oral argument, which said argument was made at the conclusion of the trial by said Philip Adler; the Court sitting without a jury, a jury having been expressly waived by all parties hereto, and the cause having been, heard, and evidence, both oral and documentary, having been introduced and received, and the Court having referred to many standard works of authorities upon general and ecclesiastical history and law, and the cause having been submitted for decision, the Court now makes its Findings of Fact as follows:

FINDINGS ОF FACT AND CONCLUSIONS OF LAW

I

Plaintiff Russian Orthodox Church of the Transfiguration of our Lord (hereinafter usually referred to as “Transfiguration Church”) was organized in the year 1930 as an association, parish or congregation composed of members of the Russian Orthodox Greek Catholic Church (hereinafter usually referred to simply as “Church”), consisting of clergy and laity living in the City of Los Angeles. It was organized to enable said persons, united in their faith in Christ to assist each other in achieving salvation by means of prayers, sacraments, Christian teaching and ecclesiastical discipline. On or about February 6, 1936 plaintiff Transfiguration Church was organized as a non-profit corporation, and at all times since said date was and now is a non-profit corporation duly organized and existing under and by virtue of the laws of the State of California. At all times since the said organization of plaintiff Transfiguration Church in or about the year 1930, to and including the present time, plaintiff Transfiguration Church has been, and now is, a constituent, component and integral part of the Church and of the Russian Orthodox Greek Catholic Church Abroad (hereinafter usually referred to simply as the “Church Abroad”) and has been, and now is, subject to the jurisdiction of the governing organs of said Church Abroad.

II

Plaintiff REV. VASILY SHAPOSHNIKOFF (also sometimes known as Rev. Basil Shaposhnikoff and the Rev. V. G. Shaposhnikoff) is now, and for many years prior hereto has been, a duly ordained priest of the Church, and at all times herein mentioned on and after June 8, 1946, was, and now is, the duly appointed, qualified and acting rector or pastor of plaintiff Transfiguration Church, with full right and authority to perform in said Transfiguration Church the Divine Liturgy and administer the Holy Sacraments in conformity with the dogma, rites, ritual and regulations of the Church, and to perform all of the duties and exercise all of the rights, prerogatives and privileges of rector or pastor of plaintiff Transfiguration Church.

III

Plaintiff V. A. LISITZEN at all times herein mentioned from and after the year 1930 to the present date, was, and now is a member of the parish or congregation of Transfiguration Church and at all times since the year 1944 has been, was, and now is, a member in good standing of plaintiff Transfiguration Church, and at all times herein mentioned since on or about the month of March, 1947, has been, and now is, the duly elected, qualified and acting Church Warden of plaintiff Transfiguration Church.

IV

Plaintiffs NICOLUS ZANE (also sometimes referred to as Nicolas Znamensky), GEORGE BLAGOI, GALINA CALWAY, A. SVESHNIKOFF and ELLEN STAROSTIN, and each of them, for many years last past have been, and now are, members in good standing of plaintiff Transfiguration Church, and at all times herein mentioned since in or about the month of March, 1947, have been, and now are, the duly elected, qualified and acting members of the Church Committee of plaintiff Transfiguration Church. M. N. STRONIN, plaintiff herein, was, at the time of the filing of the complaint herein and for many years prior thereto, a member in good standing of plaintiff Transfiguration Church, and at all times herein mentioned since in or about the month of March, 1947, until her death some time prior to the commencement of the trial of this action, was a duly elected, qualified and acting member of the Church Committee of plaintiff Transfiguration Church. In addition to the plaintiffs who are in this paragraph specifically referred to, defendant ZLATA POLOVTZOVA was also a member of said Church Committee. Said defendant was made a defendant herein for the reason that she had renounced her loyalty to and seceded from the said Church Abroad, and it was not possible to obtain her consent to being joined as a party plaintiff herein.

V

Plaintiff ANASTASIA SHEREMETEFF and plaintiff SOPHIE CHRISTOFF are, and for many years last past have been, members in good standing of plaintiff Transfiguration Church, and for many months prior to the filing of the complaint herein had occupied a portion of the premises owned by plaintiff Transfiguration Church, and hereinafter more particularly described, as tenants at will. Some time after the filing of said complaint, and prior to the commencement of the trial of this action, said plaintiffs in this paragraph named vacated the said premises.

VI

Plaintiffs hereinabove named brought this action for the benefit of themselves and for the benefit of all members of plaintiff Transfiguration Church who adhere and are loyal to the Church Abroad. Such members of plaintiff Church were then, and now are, so numerous that it was impracticable to bring them all before this Court.

VII

Defendant REV. JACOB PSHENICHNIUK was, from in or about the month of March 1944 until June 8, 1947, the duly appointed and acting rector or pastor of plaintiff Transfiguration Church. METROPOLITAN THEOPHILUS was, from the early part of the year 1936 until the latter part of 1946, the duly appointed and acting Archbishop in charge of the North American diocese of said Church Abroad. Defendant A. LISIN, prior to the latter part of 1946, was the duly appointed and acting dean of the Southern California district of a Church Abroad. Defendants VASILY S. NICOLS, ZLATA POLOVTZOVA, S. G. FINN, S. MOURATOFF, J. MAXIMOFF, A. M. SHIPOV and OLGA BEKISCH, are members of plaintiff Transfiguration Church who, together with the other defendants in this paragraph named, have seceded from and refused to be loyal and adhere to, the Church Abroad and its governing organs hereinafter referred to. The defendants in this paragraph named, and each of them were sued herein on their own behalf and on behalf of ah other members and parishioners of plaintiff Transfiguration Church who refuse to recognize the authority of, or to adhere or be loyal to, the Church Abroad and its governing organs. All of such defendants and persons had, at the commencement of this action and at all times since then and now have, a common and general interest in this cause of action and were and are so numerous as to make it impracticable to bring them before this Court.

VIII

Defendant BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION is now, and for some time past has been, a national banking association organized and existing under and by virtue of the laws of the United States, engaged in the banking business in the County of Los Angeles, State of California. Defendant WILSHIRE FEDERAL SAVINGS & LOAN ASSOCIATION OF LOS ANGELES is now, and for some time past has been, a Federal savings and loan association and a corporation organized and existing under and by virtue of the laws of the United States.

IX

The Church is a composite and integral unit or body, headed by a supreme administration which has final authority and power in all matters, legislative, judicial, executive and administrative, subject to the power and authority of bishops acting in a sobor or general council. On the local level, the Church is composed of parishes or congregations of laymen (such as plaintiff Transfiguration Church), each generally headed by a priest usually referred to as the rector or pastor. Several or many parishes within a given geographical area constitute what is known as a “diocese,” which is headed generally by a bishop who has full power and authority over purely local matters affecting the parishes under him, subject to the jurisdiction of the supreme church administration and subject to the requirement of joint action with the other bishops on general matters or on matters outside the purely local sphere of his diocese. A diocese is sometimes headed by an “archbishop” whose powers are essentially the same as those of a bishop but who, by virtue of his office and a title, holds a higher rank of honor and dignity and who sometimes has one or more vicar (or assistant) bishops under him. (Whenever the term “bishops” is used herein it shall include within its meaning bishops and archbishops.) In some cases several or many dioceses in a given geographical area are grouped together into a “metropolitan district” headed by a “metropolitan” who is himself a bishop but who, because of his administrative position and rank, has a position of seniority among his bishops. The highest Church dignitary is known as a “patriarch” who is a bishop and, generally speaking, is head of the church administration and who exercises certain broad powers over the spiritual and temporal affairs of the Church.

X

The Church is one of the several eastern orthodox confessions. It is the fundamental law, teaching, doctrine and dogma of the Church, among other things, that: The Church was founded by Jesus Christ; that all of its power and authority, both spiritual and temporal, (including, but not limited to, in all religious, ecclesiastical, dogmatic, doctrinal, moral, legislative, judicial, executive and administrative matters) was derived directly from God through the person of Jesus Christ and was transmitted by Jesus Christ to His Apostles who in turn transmitted the same to their successors, who were the duly appointed, ordained and consecrated bishops, and said power and authority descended from generation to generation of bishops and now resides and is vested in, the presently duly ordained and consecrated bishops; that the Church is one whole, com4 posed of bishops, priests and the faithful, but that the control of the Church is in the bishops themselves; that when the bishops have determined a matter affecting the whole Church, all parts and members thereof must conform thereto and obey; that except as to certain financial and property matters, no action may be taken by priests or laymen affecting the whole of the Church without the separate affirmative action of the bishops; that the bishops must recognize one of their number, usually the oldest in time of ordination, as their head; that neither the oldest bishop nor any of the bishops can act alone on matters that affect the whole Church but that they must consult together for the purpose of securing unanimity of opinion and if the consent of all cannot be obtained, then the opinion of the majority must control; that in certain matters affecting the government of the Church, representatives of the priests and laity may meet and confer with the bishops in a sobor (council or convention) but that none of the enactments of such sobor thus composed of priests, laity and bishops, on matters that affect the whole Church, become effective until approved by the bishops attending the sobor, acting entirely separately from the priests and laity.

XI

Prior to A. D. 1454, the Russian Orthodox Church was administratively a part of the Greek Orthodox Church and subject to its jurisdiction. In 1454 the Church became autocephalous, or independent of the Greek Orthodox Church. The supreme church administration of the Church was situated in Russia from 1454 on until said administration ceased to exist after the Bolsheviks (or Communists) came into power in Russia, as hereinafter found, and during said entire period said supreme church administration existed and functioned canonically and lawfully. In 1917. immediately prior to and during the Bolshevik Russian Revolution, the supreme church administration pf the Church was located in Moscow, and there were, and for scores of years prior thereto there had been, parts of the church in the form of parishes, missions and dioceses, in various countries of Europe and in parts of the Near East, North Africa, China, Japan, Australia, and North and South America, all of which were organized, and considered themselves, as integral and component parts of the Church and were governed by the supreme church administration and authority within Russia.

When and after the Communists came into power in Russia, the Church in Russia was immediately attacked by the Communists and as a result thereof was disorganized and its supreme church administration was destroyed, and its bishops, priests and laity were persecuted and many were imprisoned and executed. Many bishops, hundreds of priests and millions of laities were driven from the territory of Russia and they settled in various other parts of the world, particularly in the Balkan countries and Serbia. The supreme church administration and the life of the Church itself were completely disrupted and all communications between the Church inside the territory of Russia and the part outside Russia were severed and became impossible, and communication with the great body of the faithful and their ecclesiastical leaders is still severed and impossible. The Church itself was driven underground and eventually its supreme church administration was terminated and Patriarch Tikhon, who then held the highest office in the Church, was himself imprisoned and within a few years died. The Communists were, always have been and still are, openly, officially and avowedly atheistic and antireligious and their philosophy of government has always been and still is that the Church is an enemy of the state and as such must be destroyed. Said persecution of the Church and of its members, particularly of its faithful bishops and priests, never ceased and still is carried on inside the territory of Russia. At all times since said Revolution the government has been controlled by the Communist party and Russia has been a police and totalitarian state, and every individual within Russia, including all members of the Church whether layman, priests or bishops, and all organizations of every nature within Russia have been and still are under the absolute and rigid control of the Communist regime.

Prior to 1927 there was a lawful supreme church administration within Russia. During and immediately after the Bolshevik revolution, said church administration existed as an underground organization under constant attack from the Communist regime and it was unable to administer or govern the parts of the Church outside of the territory of Russia. Because of this fact, Patriarch Tikhon and the supreme church administration within Russia, on or about November 20, 1920, issued a decree, known as Ukaz No. 362, received herein as Plaintiffs’ Exhibit No. 1, which, interpreted in the light of the canons and laws of the Church, authorized, and required all dioceses, bishops and parts of the Church outside the territory of Russia to organize a provisional supreme church administration abroad (or outside Russia) for the purpose of maintaining and preserving the unity of the Church outside Russia and for the purpose of exercising, with respect to all parts of the Church outside Russia, all the powers, authority and functions theretofore exercised by the supreme church administration within Russia, until such time as there should be restored within Russia normal church life and true religious freedom and there should be re-established within Russia the supreme church administration of the Church with freedom unhampered by the state to manage its affairs in a normal manner. Said Ukaz No. 362 was and is canonical and lawful, and did require then and always has required all bishops, priests and laymen and all parts, dioceses, missions, parishes and congregations of the Church situated outside of Russia, to be united together, to organize, establish and maintain a supreme church ad-ministration and organization for the government of their affairs and to be integral and component members and parts of such provisional church organization until such time as normal church life returned inside Russia.

XII

When the Church in Russia was completely disorganized and the supreme church administration in Russia was destroyed, as aforesaid, under the canons and law of the Church, and entirely aside from the effect and requirements of said Ukaz No. 362 as above found, it became and was the absolute duty of all bishops, who were not inside Russia, to gather together and to assemble into a provisional church organization all parts and members of the Church outside Russia and to establish a supreme church administration for all of the Church outside Russia until such time as normal church life returned inside Russia and until there was re-established within Russia a supreme church administration by all bishops of the Church acting freely and without control or domination from the state. Such a provisional organization of the Church outside Russia was then and ever since then has been and still is an absolute necessity in order to preserve and maintain the existence, unity, discipline, doctrine and liturgy of the Church and in order to guard against the creation of schisms and heresies in the Church outside Russia, and it was, and still is, particularly necessary in order to preserve the very existence of the Church itself, which in the motherland, Russia, was then and at all times since the Bolshevik revolution has been and still is, under attack from the Communists.

XIII

A provisional organization of the Church was established by certain bishops of the Church in the year 1919 in the southeast part of Russia during a time when that territory was occupied by military forces fighting the Communists. Shortly thereafter when the Communist armies advanced and occupied the whole of the territory of Russia, almost all of those bishops, their clergy and members of the laity were driven from Russia and a provisional supreme church administration was located in the Crimea and later in Constantinople. In 1921 most of the bishops who had been active members of these prior supreme church administrations located themselves in Serbia, in the town of Karlovtzi. Said bishops then called a sobor or council of all the bishops of the Church outside Russia and invited all available bishops and many of the clergy and laity to gather in Karlovtzi and meet with them in a sobor. Thereafter in or about the month of November, 1921, a sobor was held in Karlovtzi and a supreme church administration for all parts of the Church outside Russia was established, said organization to be provisional pending restoration of normal church life inside Russia. Said supreme church administration and organization was called the Russian Orthodox Church Abroad (hereinafter usually referred to simply as the “Church Abroad”), and was established, has continuously thereafter existed and still exists as the only lawful, canonical and valid supreme church administration and organization of all parts of the Church outside Russia, and was established and exists pursuant to and in accordance with said Ukaz No. 362 and the canons and laws of the Church, as aforesaid. From the time of its establishment, as aforesaid, it was and still is necessary under the law of the Church, for all bishops, clergy and laity, and all parts of the Church outside Russia to recognize the authority of said administration, to submit to its jurisdiction and to be loyal to it.

XIV

At said sobor of 1921, there was established a Holy Bishops’ Synod and the Holy Bishops’ Sobor of the Church Abroad and one Metropolitan Anthony (who was second in rank and dignity to Patriarch Tikhon, who was then, and remained until his death, inside Russia) was elected and appointed ruling bishop of the Church Abroad. Said Synod at all times since its establishment, as aforesaid, was and still is composed of bishops representing various regions throughout the world, and was and is the supreme administrative organ of the Church Abroad. Said Sobor at all times since its establishment, as aforesaid, was and still is composed of all the bishops of the Church Abroad. Together the said Synod and the said Sobor were, and ever since have been and now are, established according to the canons and laws of the Church and principles of orthodox ecclesiastical law and tradition, as the supreme legislative, judicial and administrative authority over the Church Abroad and over all members of the Church outside Russia, and all its dioceses and all its parishes, with full power and jurisdiction over all questions of a general ecclesiastical nature on the subjects of doctrine, dogma, morality, worship, ecclesiastical administration, discipline, church organization, heresies and schisms, establishment and discontinuance of dioceses and bishoprics, and all matters dealing with adherence or nonadherence of parishes, dioceses or regions to the said Church Abroad, including the power, in case of strife or division in a parish, diocese or other sub-unit of the Church Abroad, to recognize as the lawful division or unit that part which continues in unity with the faith and with the Church Abroad and its said governing organs and to suspend and depose any bishop, priest or other person who instigates, causes or supports any secession from the Church Abroad, or who otherwise brings dishonor upon the faith or the Church. Said governing organs also were invested with, and at all times have had and now have, the sole power and authority to finally decide whether and when there is or will be a restoration in Russia of normal church life and religious freedom, and to determine when the Church Abroad and all its members and constituent parts shall be reunited with the Church inside Russia. Under the laws of the Church all said power and jurisdiction of the said governing organs of the Church Abroad, and all actions taken pursuant thereto, are now and at all times since their organization have been final, conclusive and binding upon all members of said Church outside Russia, including clergy and laity, and upon all of its constituent parts, districts, dioceses and parishes.

From in or about the year 1921 until 1945, the headquarters of the Church Abroad and its said governing organs were situated in Sremski-Karlovtzi, in Serbia, Yugoslavia. In 1945 said headquarters were moved to Munich, Germany, in the United States zone of occupation, where said headquarters ever since have been and now are located.

XV

At the time of the said Russian Revolution in 1917, there existed in North America (including Canada and Alaska) a diocese of the Church headed by an archbishop and consisting of a large number of parishes. Said diocese was an integral part of the Church and subordinate to the jurisdiction of its supreme church administration. When the supreme church administration inside Russia was destroyed, as above found, said North American diocese was cut off from communication with the Church inside Russia. Upon the establishment of the Church Abroad, said North American diocese, then under the headship of one Metropolitan Platon, adhered to and became, a part of said Church Abroad and said Metropolitan himself became, and thereafter was, a member of the supreme church administration of the Church Abroad, and for several years thereafter took an active part in the government and affairs of the Church Abroad. In or about the years 1926 and 1927, said Metropolitan Platon refused to recognize the authority of the Church Abroad and its governing organs over himself and over said North American diocese and declared himself and the North American diocese to be independent of the Church Abroad. In 1927 the Church Abroad, through its governing organs, duly and regularly issued a decree ordering that said Metropolitan Platon was thereby dismissed from the Church Abroad and deprived of his office and position as head of the North American diocese, and decreed that said acts of Metropolitan Platon, referred to in the next preceding sentence hereof, were uncanonical and unlawful. This Court finds that by operation of said decree of the Church Abroad, Metropolitan Platon was dismissed from the Church Abroad and was deprived of his office as head of said diocese, and that he no longer thereafter was a member of the Church Abroad or head of said diocese. This Court also finds that said acts of Metropolitan Platon in refusing to recognize the jurisdiction and authority of the Church Abroad over him and said North American diocese and in declaring himself and said diocese to be independent of the Church Abroad, were uncanonical and unlawful.

XVI

Metropolitan Platon refused to obey said decree of the Church Abroad and, together with several other bishops of the Church then in North America and together with many members of the clergy and laity and with numerous parishes and congregations in North America, in violation of the law of the Church and in defiance of the Church Abroad and its governing organs and in defiance of said decree of the Church Abroad, wrongfully and unlawfully created a schism within the Church and established, without right, a separate church organization which refused to recognize the jurisdiction of or adhere to the Church Abroad and which had no canonical or lawful validity or existence, at the head of which Metropolitan Platon served from that time until his death in or about the year 1933.

XVII

In said decree of the Church Abroad dismissing Metropolitan Platon, the Church Abroad through its governing organs, also duly and regularly appointed one Archbishop Apollinary in the place of Metropolitan Platon as head of said North American diocese, and said Archbishop Apollinary from then on until his death in or about the year 1933 was the duly appointed and acting Archbishop of the said North American diocese. After the death of said Archbishop Apollinary, one Bishop Vitaly (now Archbishop Vitaly) was duly and regularly appointed his successor by the Church Abroad. Said Bishop Vitaly occupied said office thereafter continuously, except that he was not head of said diocese from 1936 until 1946 (as hereinafter me particularly found), but is now the duly appointed and acting Representative of the Church Abroad in North America and is now Ruling Archbishop of the American and Canadian Diocese of the Church Abroad.

XVIII

Plaintiff Transfiguration Church was founded in 1930 by a group of lay persons who were members of the Russian Orthodox Church. This group was composed in. part of emigrees from Russia and they acknowledged the authority of the Church Abroad as the only true jurisdiction of the Church outside Russia. At the request of this group, Archbishop Apollinary assigned to Transfiguration parish its first two temporary priests and then, early in 1931, its first permanent priest who served the parish as its pastor until his death in or about the year 1942. From the time of its founding in 1930, as foresaid, Transfiguration parish and plaintiff Transfiguration Church has been, always was and still is an integral, constituent and component part and member of the Church Abroad under the diocesan jurisdiction of its North American Diocese, subject to the supreme ecclesiastical authority of the Church Abroad and of its governing organs (the Holy Bishops’ Synod and the Holy Bishops’ Sobor). In or about 1933 the said North American Diocese of the Church was divided into two dioceses, the Western American and the Eastern American, whereupon plaintiff Transfiguration Church became, and still is, a part of the said Western American diocese. In the year 1934 Parochial By-laws of plaintiff Transfiguration Church were duly adopted and have been in full force and effect ever since their said adoption in 1934, and provide as follows in paragraph 1 thereof:

“The Los Angeles parish of the Orthodox Church of the Holy Transfiguration of Our Lord is a congregation of Orthodox Christians, composed of the clergy and laymen, residing within the boundaries of the city of Los Angeles in the State of California, U.S.A., and its vicinity, united in conjunction with the said Church, constituting part of the Western American Diocese, which congregation, pending the restoration of the normal functions of the All- Russian Ecclesiastical Authority and the resumption of the Communion with the latter, shall be subject to the canonical rule of the Holy Bishops’ Russian Orthodox Synod Abroad, in the city of Sremski Karlovtzi and the Diocesan Bishop, under the guidance of a priest-rector appointed by the latter.”

XIX

At the time plaintiff Transfiguration Church was established in 1930, as aforesaid, there existed in North America the separate church organization headed by Metropolitan Platon above referred to. Upon the death of Metropolitan Platon in or about the year 1933, he was succeeded by defendant Metropolitan Theophilus. In 1935 a bishops’ sobor was held in Karlovtzi by the Church Abroad and said sobor was also attended by Metropolitan Theophilus. At said sobor the said church organization headed by Metropolitan Theophilus rejoined and was merged into and made a part and constituent member of, the Church Abroad on the same basis as other dioceses of the Church Abroad and similarly subordinate to the governing organs of the Church Abroad. There was also at said Sobor adopted the “Provisional Statute,” a true and fair translation of the first nine articles of which is attached to the complaint on file herein as Exhibit “A.” An additional article, designated Article X, was added to said Provisional Statute at a bishops’ sobor of the Church Abroad held in Karlovtzi in 1936, said article providing for the trial of bishops and priests. Said Provisional Statute provided, among other things, as follows:

“I. The Russian Orthodox Church Abroad consisting of dioceses, ecclesiastical missions and churches, located outside of Russia, is an indissoluble part of the Russian Orthodox Church, temporarily constituted upon an autonomous basis.

“The name of the Guardian of the All-Russian Patriarchal Throne Metropolitan Peter shall always be invoked in prayers in the course of Divine service in all churches abroad.

“II. The supreme legislative, judicial and administrative organ Of the Russian Orthodox Church Abroad shall be the Bishops’ Sobor annually convened, and its executive organ shall be the Holy Bishops’ Synod.”

Said Provisional Statute and merger were duly adopted, accepted and ratified (except as hereinafter in this paragraph found) by all bishops and parts of the Church Abroad, by Metropolitan Theophilus as head of said formerly separate church organization, and by said organization itself and its representatives. Said Provisional Statute was also signed by one Metropolitan Evlogy who headed certain parishes of the Church situated in Western Europe, known as the Western European diocese or district. Thereafter a sobor of said diocese or district was held which refused to ratify the Provisional Statute. Thereafter Metropolitan Evlogy and those who refused to so ratify, submitted to the jurisdiction of the Patriarch of Constantinople who was and still is the head of the Greek Orthodox Church, and said persons have at all times thereafter continued under the jurisdiction of said Patriarch. Some members and parishes of said Western European diocese or district have at all times remained faithful to the Church Abroad and have accepted the Provisional Statute and there is now and for many years last past has been a Western European District of the Church Abroad, headed by a Metropolitan, under the jurisdiction of the Church Abroad.

Pursuant to said Provisional Statute and the aforesaid merger, said church organization headed by Metropolitan Theophilus became an integral part of the Church Abroad, subject to its jurisdiction, government and laws. Each and every term and provision of said Provisional Statute was and is valid, binding and effective, and said Provisional Statute itself was executed, adopted, accepted and ratified by all parts of the Church Abroad and by defendant Metropoiltan Theophilus and his said church organization, in accordance with the laws of the Church. Said Provisional Statute was and is canonical and lawful and was adopted and accepted, as foresaid, pursuant to said Ukaz No. 362 and in accordance with the laws and canons of the Church.

XX

Pursuant to said Provisional Statute and said merger, the Church Abroad, as reunited and merged, was divided into four metropolitan districts, one of which was the North American. The two North American dioceses referred to in paragraph XVIII above, together with the dioceses comprising the church organization headed by Metropolitan Theophilus, were joined into a metropolitan district called The North American Metropolitan District, and the diocese and parishes in North America were reassigned into eleven separate dioceses each headed by a bishop, and all headed by defendant Metropolitan Theophilus as metropolitan, subject to the jurisdiction and government of the Church Abroad and its governing organs. One of said dioceses was assigned to Archbishop Vitaly and one to Archbishop Tikhon. Transfiguration Church was reassigned from the diocesan administration of Archbishop Tikhon to that of defendant Metropolitan Theophilus as Archbishop of San Francisco.

XXI

When said merger and said Provisional Statute were agreed to, ratified and accepted by the Church Abroad and by the church organization that was formerly independent under defendant Metropolitan Theophilus, as above found, thereupon said church organization under defendant Metropolitan Theophilus ceased to exist as a separate church organization and the North American Metropolitan District then evolved (being a merger of the dioceses and parishes theretofore adhering to the Church Abroad, and the dioceses and parishes formerly a part of said separate church organization) became and was autonomous and independent as to all matter and things which, under the terms of said Provisional Statute, were of a purely local nature and could be acted upon, or done without reference to, or action by, or approval or confirmation of, the Holy Bishops’ Sobor or Synod of the Church Abroad, but had no autonomy or independence with respect to each and every matter and thing which, under the terms of said Provisional Statute were required to be referred to, or acted upon, by said Holy Bishops’ Sobor or Synod of the Church Abroad. After said Provisional Statute was adopted and accepted, as aforesaid, it was never, and none of its terms and provisions were ever, in any manner or matter, either in substance or in form, altered, amended or modified except only that in the year 1936 there was added to said Statute, Article X thereof, entitled “The Ecclesiastical Court,” providing for the trial of bishops of the Church Abroad in the first instance by bishops of the Metropolitan District and on appeal by the Holy Bishops’ Sobor of the Church Abroad, and providing for the trial of preists in the first instance and on appeal within the Metropolitan District itself.

XXII

From and after the time of said merger and said adoption of the Provisional Statute, as above found, continuously until the latter part of 1946, said Metropolitan Theophilus and all members, parishes and dioceses of said North American Metropolitan District wholly abided by and compiled with the terms of said Provisional Statute’ and accorded full loyalty to the Church Abroad and its governing organs, and in all matters and things recognized and accepted the said Church Abroad and its said governing organs as the supreme, legislative, judicial, executive and administrative authority of and over, and as the supreme church administration of and over all parishes and dioceses of the Church Abroad and said North American Metropolitan District.

XXIII

Purely and solely for purposes of political expediency, the communist regime within Russia has from time to time since 1917 permitted an outward form of religious organization to exist within the territory of Russia and within territory controlled by the Russian state, and an outward form of religious organization was in 1946 and is now permitted to exist within Russia, known as the so-called Patriarchal Church, headed by the so-called Patriarch Alexy, but such forms of church organization that were permitted to exist within Russia since 1917 to the present time have been and are completely under the domination and control of the communist regime. The governing organs of the Church Abroad duly and regularly, in or about the years 1927, 1943 and 1946, considered the canonic status of said so-called Patriarchal Church and particularly in 1946 considered the purported election of the so-called Patriarch Alexy as head of said so-called Patriarchal Church, and it was duly and regularly decreed by said governing organs of the Church Abroad in or about 1927, 1943 and 1946 that said so-called Patriarchal Church within Russia never was, after the year 1927, a canonical or lawful administration of the Church, and that it never had since 1927 any authority of any nature whatsoever over any part or member of the Church inside or outside the territory of Russia; and further that since 1927 there has been no canonical or lawful supreme administration of the Church within Russia, and further determined and decreed in 1946 that the so-called Patriarch Alexy was not the canonical head of the Church and that he had no authority as head, or otherwise, over any part or member of the Church outside or inside the territory of Russia. This Court finds that said so-called Patriarchal Church never was since 1927, and is not now, the or a canonical or lawful organization of the Church, or ever had or has any authority of any nature whatsoever over any part or member of the Church outside the territory of Russia. At no time since in or about the year 1927 has there been a canonical and lawful supreme church administration of the Church within Russia, though there always were and still are very large numbers of bishops, priests and laymen within Russia who were and are faithful to the Church. This Court further finds that the so-called Patriarch Alexy was not in 1946, or at any time before or since then has been, the head of the Church; further finds that he has never had any authority of any nature whatever over any part or member of the Church outside the territory of Russia.

XXIV

In the latter part of the year 1946, defendant Metropolitan Theophilus issued a call or proclamation for a sobor (or convention) of the North American Metropolitan District of the Church Abroad, said sobor1 to be held in Cleveland, Ohio, in November, 1946, and said sobor to be attended by all the bishops of the District and by two delegates from each parish in the District, one of said two delegates to be a priest representative, the other a lay representative. Said sobor or convention was officially called the “Seventh All-American Ecclesiastical Sobor.” One of the items on the agenda of said sobor was a proposal that the District withdraw from the Church Abroad and its governing organs, and subject itself to some degree to the jurisdiction of the so-called Patriarchal Church under said so-called Patriarch Alexy.

XXV

Prior to the holding of said Sobor, defendant Metropolitan Theophilus caused a “Nakaz” to be published to all dioceses, parishes and members of the Church in the North American Metropolitan District. Said Nakaz stated the rules of procedure for the Sobor and in part provided as follows:

“35. The Bishops — members of the Sobor shall form a Bishops’ Conference to which the decisive vote shall belong concerning all the decisions of the Sobor, except on financial and economic matters.

“37. On the strength of the Word of God and the Holy Canons, all decisions of the Sobor are subject to the approval of the Bishop’s Conference, and shall become effective only after these shall be signed by the latter.

“39. The Bishops’ Conference shall have the right, if necessary, to adjourn the Sobor even prior to the exhaustion of its agenda.”

The above-quoted provisions are in accordance with the canons and laws of the Church for the conducting of a sobor attended by bishops, priests and laymen.

XXVI

Thereafter, on or about October 6, 1946, a parochial meeting of the parishioners of plaintiff Transfiguration Church was duly called by its then rector, defendant Rev. Jacob Pshenichniuk. At the time of said parochial meeting there were 95 members in good standing of plaintiff Transfiguration Church and approximately 60 of said members attended said meeting. The said proclamation of defendant Metropoltian Theophilus calling said convention or Sobor was read at said meeting, and thereafter said defendant Rev. Jacob Pshenichniuk and one George Maltzeff, a lay member of the parish, were elected as the delegates authorized to represent plaintiff Transfiguration Church at the said Sobor. Pursuant to a resolution unanimously adopted at said meeting said delegates were instructed to vote against the said proposal on the agenda of said Sobor providing for withdrawal by the North American Metropolitan District from the Church Abroad and for the recognition of the so-called Patriarch of Moscow, Alexy, as its supreme ecclesiastical authority.

XXVII

The said Seventh All-American Ecclesiastical Sobor convened and was held in Cleveland, Ohio, from November 26 to November 29, 1946. During the course of the convention a resolution was offered, and purportedly adopted by the general assembly composed of priests and laymen, to the effect that decisions adopted by the said general assembly should be fully and legally binding forthwith and should not be subject to the approval of the conference of the bishops and should not require the signature of the conference of bishops for their effectiveness. Said purported resolution was and is wholly invalid, unlawful and contrary to the canons and laws of the Church in that:

(a) It is a fundamental principle of orthodox canon law, and in particular of the canon law of the Russian Orthodox Church, that all decisions made at a sobor by a general assembly of laymen and priests must always be subject to the approval of the conference of the bishops who attend such sobor and shall have no force or effect whatever until signed by said conference of bishops. Said principle is derived from the fundamental principle of the organization of the Orthodox Church by virtue of which ever since the establishment of the Church, the authority over and responsibility for the Church was vested in the Apostles by Jesus Christ and was delegated through their successors from generation to generation to the presently duly elected and qualified bishops of the Church. Said principle has at all times herein mentioned been and now is fundamental in the organization and administration of the Russian Orthodox Church and in the said Church Abroad.

(b) Said purported resolution was in direct violation of said Provisional Statute under the terms of which the supreme legislative, judicial and administrative authority over the Church Abroad was and is vested in the Holy Bishops’ Sobor and in the Holy Bishops’ Synod, and under which jurisdiction in questions of ecclesiastical administration and discipline was and is vested in the Holy Bishops’ Sobor.

(c) Said purported resolution was and is in direct conflict with the provisions of said Nakaz.

XXVIII

Thereafter at said Cleveland Sobor the following resolution was offered and purportedly adopted by the said general assembly of the Sobor composed of priests and laymen, as follows: “The Seventh All-American Ecclesiastical Sobor of the Russian Orthodox Church, convened in the city of Cleveland, Ohio, on November 26-29, 1946, having reiterated our inviolable faith and loyalty to His Grace Theophilus, our elected Metropolitan, after having exhaustively deliberated on our attitude toward the Mother Moscow Orthodox Church, resolves to request His Holiness, the Patriarch of Moscow to accept us in his hold and to be our spiritual father on condition of our complete autonomy as it exists at present.

“Our periodically convened American ecclesiastical Sobors must remain our supreme legislative instance. At these we elect our metropolitans, elaborate our statutes and fully regulate our life.

“Inasmuch as the Patriarchal Sacredotal authority is incompatible with that of the Synod of the Russian Church Abroad, the American Church germinates all administrative subordination to the Synod Abroad, maintaining brotherly and prayer-loving communion with all the churches in dispersion.

“Should our terms be unacceptable to His Holiness, the Moscow Patriarch our American Orthodox Church shall also henceforth remain autonomous up to the time when the Moscow Patriarch deems them acceptable and grants us that which we request.”

Upon the adoption of said resolution a majority of the persons voting against it promptly filed a protest against it and, in addition, five of the nine bishops attending said Sober, to wit, Archbishops Vitaly, Tikhon and Josaf and Bishops Jeronim and Seraphim (Seraphim attending said Sobor as a guest), which said archbishops and bishops are hereinafter usually referred to as the “loyal Bishops,” also filed a protest, which said protest read as follows:

“We, the undersigned, deem it our duty to declare to the Sobor that according to our conviction, temporarily, we must adhere to the status quo.

“The resumption of relations with the Moscow Patriarchate is premature and dangerous, while the severance with the Synod Abroad provided in the resolution of Father A. Varlashkin, we consider arbitrary and anti-canonic.”

Said purported resolution was and is wholly invalid, unlawful and contrary to the canons of the Church, and had and has no force or effect whatever, in that:

(a) Despite the demands of the said Bishops loyal to the Church Abroad, defendant Metropolitan Theophilus and other persons associated with him in the conduct of the said Sobor failed and refused to submit the said resolution to the bishops convened at the said Sobor for their approval or disapproval, and, furthermore, failed, refused and neglected to submit the said resolution to the Holy Bishops’ Sobor and the Holy Bishops’ Synod for their approval or disapproval; the said resolution, was never signed or approved by the conference of the said Bishops attending the said Sobor nor was it signed or approved by the Holy Bishops’ Synod or Holy Bishops’ Sobor, or by the President of the Holy Bishops’ Synod, or by; any representative on behalf of said Synod, Sobor or President. It is a fundamental principle of orthodox canon law, and in particular of the canon law of the Russian Orthodox religion, that all decisions made at a sobor by a general assembly of laymen and priests must always be subject to the vote of a conference of the bishops attending such sobor and shall have no force or effect whatever until signed by said conference of bishops. Said principle is derived from the fundamental principle of the organization of the Orthodox Church by virtue of which ever since the establishment of the Church, the authority over and responsibility for the Church was vested in the Apostles by Jesus Christ and was delegated through their successors from generation to generation to the presently duly elected and qualified bishops of the Church. Said principle has at all times herein mentioned been fundamental in the organization and administration of the Russian Orthodox Church and in the said Church Abroad.

(b) By said resolution, defendant Metropolitan Theophilus and all persons allied with him and in favor of said resolution, purported to arrogate to themselves the power of breaking off and seceding from the Church Abroad, and setting themselves up as a church organization separate and apart from the Church Abroad and its aforesaid governing organs. Such a division within the Church Abroad could only have been effected with, the express approval of the said governing organs of the Church Abroad, which approval was never given by said governing organs.

(c) By said resolution, defendant Metropolitan Theophilus and all persons allied with him and in favor of said resolution, purported to arrogate to themselves the power of determining finally the question whether there had been a restoration in Russia of normal Church life and whether religious freedom existed in Russia. Such determination could only have been made by the said governing organs of the Church Abroad and not by the North American (or any other) Metropolitan District or by Metropolitan Theophilus or by any sobor of said District. In 1946 said governing organs of the Church Abroad duly and regularly determined and decreed that normal Church life had not been restored in Russia and that freedom of religion did not exist in Russia, and this Court finds said determination and decree to be true.

(d) The intent and effect of said purported resolution was to create and cause a faction, schism and revolt within the Church Abroad, for the purpose of splitting off from the main church body and from its regularly constituted governing organs, a portion of the organization within North America consisting of all those who favored and supported said resolutions.

(e) Said purported resolution was ana is in direct violation of the said Provisional Statute, under the terms of Which the supreme legislative, judicial and, administrative authority over the Church Abroad is vested, in the Holy Bishops5 Sobor and in the Holy Bishops’ Synod, and under which the jurisdiction in questions of ecclesiastical administration and discipline was and is vested on the Holy Bishops’ Sobor, as well as all matters and decisions relating to contemporary heresies and schisms, as well as the discontinuance of Bishops’ Sees and the ratification of decisions of District Sobors concerning the discontinuance of dioceses.

(f) Said purported resolution was and is in direct conflict with the provisions of the said Nakaz.

XXIX

Thereupon defendant Metropolitan Theophilus and the bishops, priests and members of the laity allied with him, including all defendants herein except defendants Bank of America National Trust and Savings Association and Wilshire Federal Savings and Loan Association of Los Angeles, unlawfully and without authority recognized the said purported resolution referred to in the next preceding paragraph as valid, and despite the protests and demands of said loyal Bishops and of the convention delegates loyal to the Church Abroad and of the various persons, both laymen and members of the clergy, who remained loyal to the Church Abroad, refused to submit the said purported resolution to the bishops attending said Sobor for approval and refused to submit the said purported resolution to the Holy Bishops’ Synod or the Holy Bishops’ Sobor for approval and did create a schism within the Church Abroad, and seceded and revolted from the Church Abroad and renounced their loyalty to the said Church Abroad, and its aforesaid governing organs, and from said time to the present date have severed all ties with the Church Abroad and have refused to recognize the said governing organs of the said Church Abroad as the supreme church authority.

XXX

In or about the month of February, 1947, the said loyal Bishops duly resolved and decreed that the said resolution of secession from the Church Abroad adopted at the Cleveland convention, as well as the acts of Metropolitan Theophilus and all persons allied with him in seceding from the Church Abroad were contrary to the laws of the Church and that said loyal Bishops therefore could no longer remain a part of the seceded faction thus created under the leadership of defendant Metropolitan Theophilus. These resolutions of said loyal Bishops were duly submitted to the Holy Bishops’ Synod and were approved by said tribunal in or about the month of March, 1947. The said Bishops’ Synod also duly ruled and decreed that the resolutions adopted at the said Cleveland Sobor purportedly depriving the Bishops of the right to veto decisions of the general assembly composed of priests and laymen and the said resolution of secession from the Church Abroad, referred to in paragraph XXVIII above, were illegal and uncanonic and were founded purely on political considerations and had no force or effect whatever, and further that all interdicts whatsoever which were purportedly imposed by. defendant Metropolitan Theophilus and the persons allied with him, upon members of the clergy and laity loyal to the Church Abroad, were invalid. The said Holy Bishops’ Synod in said decree also appointed Archbishop Vitaly as representative of the said Synod in North America and vested in him the rights and duties of administration in all phases of the life of the Church Abroad in North America and also appointed Archbishop Tikhon as head of the Western American diocese of the Church Abroad, to which diocese plaintiff Transfiguration Church belonged. At all times herein mentioned since said time, Archbishop Vitaly has been and now is the duly appointed and acting Representative of the Holy Bishops’ Synod and the Ruling Archbishop of the American and Canadian Diocese of the Church Abroad, and Archbishop Tikhon has been and now is head of the said Western American diocese and diocesan bishop over plaintiff Transfiguration Church.

Said decrees were validly made by said bishops and by said Holy Bishops’ Synod. Said tribunals were and are judicial tribunals of the Church Abroad and said Holy Bishops’ Synod was then and still is the supreme judicial tribunal of the; Church Abroad, the decrees and decisions of which then were and still are binding on all parts of the Church Abroad.

XXXI

In or about the month of March, 1947, defendant Metropolitan Theophilus., together with certain bishops in league with him, purportedly deprived the said loyal Bishops of their dioceses, because of their refusal to submit to the aforesaid resolutions of the Cleveland Sobor, and terminated all official relations with said loyal Bishops, and further purportedly ordered all parishes to report directly to Metropolitan Theophilus > and to remember his name only on appropriate occasions at divine services. Thereafter each said loyal Bishop was sent a communication by defendant Metropolitan Theophilus purportedly discharging him from the North American. Metropolitan District.

XXXII

On or about February 9, 1947, a parochial meeting of plaintiff Transfiguration Church was duly called for the purpose of electing a Church Warden and a Church Committee. Plaintiff V. A. Lisitzen was duly elected Church Warden, and a Church Committee was duly elected composed of eight persons, five of whom were and now are loyal to the Church Abroad. At said meeting a motion was made for a vote disapproving the action taken by the aforementioned Cleveland Sobor in seceding from the Church Abroad and in recognizing the Moscow Patriarch as the supreme ecclesiastical authority, but defendant Rev. Jacob Pshenichniuk unlawfully and in derogation of the rights of the parochial meeting refused to allow &aid motion to come to a vote. Thereafter the minutes of said meeting were submitted to defendant Metropolitan Theophilus who refused to approve the same.

XXXIII

Thereafter defendant Metropolitan Theophilus ordered and called another parochial meeting of parishioners of Transfiguration Church, to be held on March 16, 1947, under the chairmanship of Rev. John Shakhovskoy. Said meeting was duly and regularly held March 16, 1947, and was attended by 70 members of plaintiff Church. The said Chairman first addressed the meeting and urged that the parishioners pledge loyalty to defendant Metropolitan Theophilus, and further urged the parishioners to renounce their allegiance to the Church Abroad and to its said governing organs. Thereupon the meeting was opened for election of Church Warden of plaintiff Church. Plaintiff V. A. Lisitzen and defendant V. S. Nichols were nominated, the former then and now being loyal to the Church Abroad, the latter then and now renouncing loyalty end being in league with those who seceded from the Church Abroad. Plaintiff V. A. Lisitzen was elected by a vote of 43 to 24, with three persons abstaining from voting. Thereupon the meeting proceeded to the election of eight members for the Church Committee and plaintiffs Stronin, Zane, Blagoi, Calway, Sveshnikoff and. Starostin, together with defendant Polovtzova, were duly and lawfully elected to said committee, all of said plaintiffs then and now being loyal to the Church Abroad and the said defendant then and now being in league with those who seceded from the Church Abroad. One Zina Zdrogoff, also loyal to the Church Abroad, was also elected to said church committee, but she has since then resigned therefrom. Said elections were there-after approved by Archbishop Tikhon as diocesan bishop over plaintiff Transfiguration Church.

At said parochial meeting the said chairman thereof, Rev. Shakhovskoy stated that by demand of Metropolitan Theophilus, only those persons elected at said meeting who signed a written pledge of loyalty to Metropolitan Theophilus and who agreed to submit to the said resolution adopted at the said Cleveland Sobor, renouncing allegiance to the Church Abroad, would receive his approval.

At the close of said parochial meeting, said chairman declared that the meeting had been legally conducted.

Thereafter defendant Rev. Jacob Pshenichniuk and defendant Metropolitan Theophilus unlawfully demanded that the various plaintiffs elected at said parochial meeting sign a written pledge of loyalty to Metropolitan Theophilus and agree to adhere to those who had seceded from the Church Abroad. Said plaintiffs, and each of them, refused to do so, and thereafter defendant Metropolitan Theophilus purportedly attempted to remove said plaintiffs from their respective offices because of their said refusal and purportedly appointed as the Church Committee of plaintiff Transfiguration Church those persons, who had been on the 1946 Committee but whose terms of office had expired and who had already been lawfully succeeded by the 1947 Committee as above in this paragraph found. Said members of the 1946 Committee thus purportedly appointed were defendants Pshenichniuk, Nicols, Polovtzova, Maximoff. Mouratoff and one Ivan A. Lopatin, not named as a defendant herein. In addition, defendant Metropolitan Theophilus also purportedly appointed to said Committee defendants Finn. Shipov and Bekisch.

XXXIV

On or about June 6, 1947, defendant Rev. Jacob Pshenichniuk was duly and lawfully dismissed as rector or pastor of plaintiff Transfiguration Church, and Plaintiff Rev. Vasily Shaposhnikoff was duly and lawfully appointed as said rector or pastor in the place and stead of the former. On or about said date, notices of said actions were duly given to said defendant and said plaintiff by Archbishop Vitaly, as Representative of the Holy Bishops’ Synod and as Ruling Archbishop in North America of the Church Abroad.

XXXV

Another parochial meeting of plaintiff Transfiguration Church was duly and regularly called and noticed for, and was held on, June 29, 1947, and resolutions were duly and unanimously adopted, as more particularly set forth in paragraph XXIII of the complaint herein, pledging allegiance to the Church Abroad, declaring that no allegiance was owed to defendant Metropolitan Theophilus and his seceded faction, repudiating the said resolution of secession adopted at the Cleveland Sobor and authorizing plaintiffs, as members of the Church Committee of plaintiff Transfiguration Church, to cause appropriate legal action to be taken to recover possession of the church building and other property from the defendants.

XXXVI

Plaintiff Transfiguration Church at all times herein mentioned since August 7, 1937, has been and now is the owner of the real property situated in the City of Los Angeles, County of Los Angles, State of California, more particularly described as follows: “The East half of Lot 9 of the portion of Lot 66 of the West portion of the Lick Tract, in the City of Los Angeles, County of Los Angeles, State of California, as per map in Case No. 7025 Superior Court of said Los Angeles County.”

Said property is now improved by a church building, the street address of which is 5433 Fountain Avenue, Los Angeles, California, and by a two-story parish house, the street address of which is 5430 Fernwood Avenue, Los Angeles, California, consisting of certain premises on the first floor and of two apartments on the second floor, one of which is the apartment of the rector of plaintiff Transfiguration Church, and which is now occupied by defendant Rev. Jacob Pshenichniuk.

Plaintiff Transfiguration Church is the owner of the said two-story parish house, subject, however, to the rights of one Joe Chiaka under and pursuant to that certain Agreement made between Joe Chiaka and his wife Domna Chiaka and the Russian Orthodox Church of the Transfiguration of our Lord on or about January 12, 1939, which said Agreement is recorded in Book 19087 at page 19 of Official Records, County of Los Angeles, State of California.

In said property above described and referred to are situated various items of personal property belonging to plaintiff Transfiguration Church consisting of furniture, fixtures and equipment. Attached as Exhibit “A” is a true and complete inventory of said personal property.

As of June 8, 1947, plaintiff Transfiguration Church had on deposit with defendant Bank of America National Trust & Savings Association funds aggregating $5,863.34 in the following accounts:

(a) the sum of $4,082.72 in a commercial account in the name of and entitled “Holy Transfiguration Russian Orthodox Church’’;

(b) the sum of $1,303.62 in a commercial account in the name of and entitled “Ladies Association of “Russian Orthodox Church” and (c) the sum of $477.00 in a savings account number 4879 in the name of and entitled “Holy Transfiguration Russian Orthodox Church.” On or about July 8, 1947, defendants herein (except defendant bank and defendant Savings and Loan Association), unlawfully and without any authority whatever, and for the purpose of diverting and converting funds and deposits above mentioned to their own use and benefit and for the benefit of the faction in league with them in revolt against the Church Abroad and its governing organs, withdrew from the said Bank of America National Trust & Savings Association the sum of $4,143.72 which was then in said commercial account entitled “Holy Transfiguration Russian Orthodox Church” and transferred $2,143.72 thereof on July 8, 1947, into a new savings account then opened with said Bank of America, said account being numbered 3732 and being .in the names of defendants Rev. Jacob Pshenichniuk, Vasily Nicols and Sergey G. Finn, and the same day deposited the remaining $2,000.00 withdrawn from said commercial account, into a new account opened with defendant Wilshire Federal Savings & Loan Association of Los Angeles, said account being designated number 3-3167 and being in the names of defendants Rev. Jacob Pshenichniuk, Vasily S. Nicols and Sergey G. Finn, and in addition at said time also deposited in said latter account the sum of $700.00, which also was the property of plaintiff Transfiguration Church.

As of the date the complaint herein was filed there was on deposit with defendant Bank of America National Trust & Savings Association, Santa Monica and Western Branch, the sums of

(a) $2,143.72 in said savings account No. 3732 under the names of defendants Rev. Jacob Pshenichniuk, Vasily Nicols and S. G. Finn,

(b) $564.48 in said savings account No. 4879 under the name of “Holy Transfiguration Russian Orthodox Church,”

and (c) $1,271.63 in said commercial account under the name of “Ladies Association of Russian Orthodox Church,” and further there was on deposit with defendant Wilshire Federal Savings & Loan Association of Los Angeles the sum of $2,700.00 in said account No. 3-3167.

As of November 29, 1948, there was on deposit with defendant Bank of America National Trust & Savings Association, Santa Monica and Western Branch, the sum of (a) $33.80 in savings account No. 3545 in the name of “Russian Orthodox Church of Transfiguration,” (b) the sum of $747.73 in said savings account No. 4879 in the name of “Holy Transfiguration Russian Orthodox Church” and (c) the sum of $1,284.98 in said commercial account under the name of “Ladies Association of Russian Orthodox Church,” and there was nothing on deposit in said savings account No. 3732, and further there was on deposit with defendant Wilshire Federal Savings & Loan Association of Los Angeles the sum of $1,274.75 in said account No. 3-3167.

All the property, real and personal, in this paragraph referred to, was acquired, and at all times has been held, and now is held by plaintiff Transfiguration Church in trust solely for the use and benefit of said church as a constituent member of the Church Abroad and for the benefit of all members of said church who adhere to the faith and doctrine of said church and who are and continue to be loyal to, and abide by, and submit to the orders and jurisdiction of the Church Abroad, its governing organs and its duly constituted tribunals, authorities and representatives.

XXXVII

Defendant Metropolitan Theophilus is not now and at no time since in or about the month of November, 1946, has been the lawful diocesan bishop of or over plaintiff Transfiguration Church. Defendant A. Lisin is not now, and at no time since November, 1946, has been, the lawful district dean of or over plaintiff Transfiguration Church. Defendant Rev. Jacob Pshenichniuk is not now and at no time since June 8, 1947, has been the lawful rector or pastor of plaintiff Transfiguration Church. None of the other defendants herein have, or at any time since June 8, 1947 (and for sometime prior thereto) have had, any lawful office with respect to plaintiff Transfiguration Church, whether as church warden, treasurer, secretary, or as assistants to such officerships, or as members of the church committee of plaintiff Transfiguration Church. None of the defendants from and after the respective times mentioned in this paragraph have had any lawful authority whatsoever over the said property, real and personal, or over the affairs of plaintiff Transfiguration Church.

XXXVIII

By reason of the aforesaid removal of defendant Rev. Jacob Pshenichniuk from office as rector of plaintiff Transfiguration Church, and the deliberate unlawful secession and revolt from the Church Abroad and its governing organs by all defendants herein (except defendant bank and defendant building and loan association), and by all persons in league with said seceding defendants and all members of plaintiff Transfiguration Church who have aided and abetted, and now aid and abet, the said seceding defendants in their said wrongful and unlawful acts, said seceding defendants and all persons in league and accord with them did under the laws of the Church lose and forfeit all their rights to the use and benefits of, and all their right to participate in the fruits and benefits of, the property hereinabove referred to, and by their acts of casting off their allegiance to, and repudiating the authority of, the Church Abroad, its governing organs and duly constituted authority, did, under the laws of the Church, thereby lose all rights as beneficiaries of the trust so held by plaintiff Transfiguration Church, as hereinabove specifically alleged, and did lose all rights to the use and occupation of the said church property for divine services or otherwise and to the administration of the parish of Transfiguration Church.

Under the laws of the Church, no part of the Church, whether a parish, congregation, diocese or district, or portion of a parish, congregation, diocese or district, and no member or group of members of the Church, whether of the clergy or laity, may lawfully withdraw from the Church and set itself or set themselves up as a separate entity or organization independent of the governing (строка пропущена)

and is schismatic and has no lawful ecclesiastical existence and loses all power and authority held or exercised with respect to the property or affairs of the Church or any part thereof. There is a principle of canon law recognized by the Church known as the principle of “ekonomie,” which is that certain departures may be made from the strict letter of the canons provided always that the principles, spirit and thought of the canons are preserved, and provided the application of the law in Such manner is |pr the benefit of the Church. This Court finds that said principle of ekonomie does not and never did operate in any way to modify the rule stated in the first sentence of this paragraph regarding the effect of a withdrawal of a part or member of the Church, nor does or did such principle in any manner whatever justify or make legal the said action taken at the said 1946 Cleveland Sobor or any of the said acts of defendant Metropolitan Theohilus and those persons and defedants affiliated with him in withdrawing from the Church Abroad and in setting up said seceded faction.

The Court finds that the Church Abroad did not ever withdraw from the Russian Orthodox Church or set itself up as an entity or organization independent of the governing organs of the Church, but, on the contrary, always was and is an indissoluble part of the Church; also that the North American Diocese or North American Metropolitan District at all times herein mentioned has been and still is an indissoluble part of the Russian Orthodox Church. The Court finds that the church organization headed by Metropolitan Platon and Metropolitan Theophilus, in the period from in or about 1926 to the time of the aforesaid merger in or about 1935, and the church organization headed by Metropolitan Theophilus at all times herein mentioned since the said Cleveland Sobor of 1946, were not and are not a part of the Russian Orthodox Church but withdrew from said Church and were set up, existed and functioned unlawfully as separate entities or organizations separately from the Russian Orthodox Church.

XXXIX

Under the laws of. the Church, plaintiff Vasily Shaposhnikoff as the duly appointed and qualified rector of plaintiff Transfiguration Church and his duly appointed successors are entitled to control of its affairs, and plaintiff Lisitzen as the duly elected, qualified and acting Church Warden of plaintiff Church and his duly elected, qualified and acting successors are entitled, jointly with the Said duly appointed rector and plaintiffs Sveshnikoff, Zane, Blagoi, Starostin and Calway, as members of the Church Committee of plaintiff Transfiguration Church, and their duly-elected successors, to the possession, safekeeping and utilization of all funds aforesaid and all other property of plaintiff church, subject to the jurisdiction of the diocesan authority and the governing organs of the Church Abroad — all to be held by plaintiffs in trust for the benefit of all members of plaintiff Transfiguration Church who are and remain loyal and submit to the jurisdiction of the Church Abroad, its governing organs and its duly constituted and appointed authorities.

On or about June 8, 1947, said plaintiffs demanded of defendants herein (except defendant bank and defendant building and loan association) that the church and the rector’s apartment in the parish house be surrendered to plaintiff Rev. Vasily Shaposhnikoff, and that all property, funds and affairs of plaintiff Transfiguration Church be released and surrendered to plaintiffs. At all times since defendant Rev. Jacob Pshenichniuk was dismissed as rector of plaintiff Transfiguration Church, to wit, on or about June 8, 1947, said defendant, together with defendants Vasily S. Nichols, Zlata Plovtzova, S. G. Finn, S. Mouratoff, J. Maximoff, A. M. Shipov and Olga Bekisch and other persons sympathetic with, and acting in league and in accord with, said seceded faction headed by defendant Metropolitan Theophilus, have wrongfully and unlawfully occupied, used and retained possession of all of the said property of plaintiff Transfiguration Church, including, but without limitation, the aforesaid real and personal property, and have wrongfully and unlawfully failed and refused to vacate, turn over and deliver possession of the same to plaintiffs, and have wrongfully and unlawfully occupied, used, possessed and diverted the same for the use of themselves and all other persons in league with them. Said defendants have also, among other things, since said dismissal of Rev. Jacob Pshenichniuk had the exclusive possession of all cash, funds and credits of plaintiff Transfiguration Church, including, but not limited to, those funds, cash and credits referred to above, and have, in addition, received other cash, funds and credits from the church congregation, from church members and from other donors, all for the use and benefit of plaintiff Transfiguration Church, and said defendants have, since the aforesaid dismissal of Rev. Jacob Pshenichniuk, wrongfully used, spent, diverted and converted the aforesaid property of plaintiff Transfiguration Church, including particularly said cash, funds and credits for the use of the said seceded faction headed by Metropolitan Theophilus and not for the use and benefit of plaintiff Transfiguration Church.

XL

Said defendants referred to in the next preceding paragraph, have rendered an accounting herein covering the period from June 8, 1947, to and including November 26, 1948, and the Court finds as follows with respect thereto. Said defendants are chargeable and are charged with the following sums:

  1. Cash on hand plus all bank deposits as of June 8, 1947, except said commercial account entitled “Ladies Association of Russian Orthodox Church,” and except savings account number 4879……………..…..$ 5,588.99
  2. Income derived from June 8, 1947 to December 31, 1947 …………………………2,059.09
  3. Income derived from January 1, 1948 to November 26, 1948………………………..4,391.90
  4. Balance in said commercial account entitled “Ladies Association, etc,” as of November 26, 1948………….1,284.98
  5. Balance in said savings account No. 4879, as of November 26, 1948…………………..747.73
  6. Interest and dividends earned on savings accounts and said account No. 3-3167…………….86.20

Total charges of …………….$ 14,158.89

to which said defendants are entitled to credits of, and are credited with, the following sums:

  1. One-half of 1947 telephone and telegraph expense………….$ 65.58
  2. 1947 water and power expense……………………………………….126.57
  3. 1947 gas expense ………………………………………………………..28.64
  4. 1947 real property taxes……………………………………………….70.58
  5. 1947 expense for advertising, printing welfare, purchase of candles, insurance on church building and miscellaneous expenses………………………………………………………..299.90
  6. One-half of 1948 telephone and telegraph expense…………$ 56.87
  7. 1948 water and power expense…………………………………………81.15
  8. 1948 gas expense …………………………………………………………..119.56
  9. 1948 real property taxes………………………………………………….175.28
  10. 1948 house expense……………………………………………….……….150.00
  11. 1948 office expense…………………………………………………………150.00
  12. 1948 welfare expense………………………………………………………225.00
  13. 1948 expense for purchase of candles……………………………….66.85
  14. 1948 miscellaneous expenses…………………………………………..123.81

Total credits of……………………………………….$ 1,739.79

and there is now due and owing from said defendants to plaintiffs for the use and benefit of plaintiff Transfiguration Church, on account of said accounting, the sum of $12,419.10.

XLI

With respect to the above items of Charges the Court finds as follows: All of the above charges represent items that were and are the property of plaintiff Transfiguration Church and not of said defendants or the said seceded faction headed by defendant Metropolitan Theophilus. Said items numbered 2 and 3 represent the total of funds contributed by members and general parishioners of plaintiff Transfiguration Church, as well as general donors, for the general uses and purposes of plaintiff Transfiguration Church. The majority of such contributions were made by defendants and by those allied with them. No part of said contributions comprising items numbered 2 and 3 was paid to said defendants for the or any special purpose relating solely and exclusively to said defendants or other persons in league with said defendants, nor was any part of said sums paid to said defendants for the use or benefit of said seceded faction headed by defendant Metropolitan Theophilus. Said defendants held said sums with which they are chargeable and are charged, as aforesaid, only and solely as involuntary trustees for the use and benefits of plaintiffs as the only duly elected, appointed, qualified and acting rector, church, warden and members of the church committee of plaintiff Transfiguration Church, said plaintiffs being in turn trustees thereof for the use and benefit of plaintiff Transfiguration Church and all members thereof adhering to the Church Abroad.

XLII

With respect to the above items of Credits, the plaintiffs without conceding the validity thereof, made no objection to those items which were and are allowed under paragraph XL above. In addition to said allowed items totalling the sum of $1,739.79, defendants claimed on their said accounting other items as credits, totalling the sum of $8,251.17, which are as follows, as claimed and itemized by defendants and which are disallowed by this Court:

  1. “Salary to Rev. Pschenichniuk”………………………..700.00
  2. “Telephone, telegrams” (½ disallowed)…………..65.58
  3. “To Clergy on holiday”………………………………….140.00
  4. “Choirmaster” …………………………………………….130.00
  5. “Choir Singers”………………………………………………..2.00
  6. “Other Sources” ……………………………………………18.12
  7. “Legal Expenses (Mr. Albee)” ………………………..100.00
  8. “Salary (Rev. Jacob)” ………………………………….1,100.00
  9. “Choir Master” …………………………………………….400.00
  10. “Choir Singers” …………………………………………..164.00
  11. “Telegrams, telephone” (½ disallowed)…………56.86
  12. “House Expense” disallowed portion) ……………132.86
  13. “Office Expense, Newspapers, Advertising” (disallowed portion)…….100.00
  14. “Court, legal expense, Mr. Albee & Mr. Arkush”…….5,151.75

Tolal:………………………………………….. $ 8,261.17

winch said additional items defendants claimed did represent disbursements made by said defendants in that total sum from the funds of plaintiff Transfiguration Church in the period from June 8, 1947, to November 26, 1948. Said additional disbursements included, among other things, moneys expended under items 1 and 8, by said defendants as compensation to defendant Rev. Jacob Pshenichniuk and under items 7 and 14, money expended as and for expenses, and attorneys’ fees for the defense of the subject litigation. The Court finds that said defendants in good faith defended themselves in this litigation. All of said additional disbursements, totalling $8,261.17, were made by said defendants not for the benefit of plaintiff Transfiguration Church or for the preservation or care of the property of plaintiff Transfiguration Church, but were made solely for the use and benefit of said defendants and for the use and benefit of said, seceded faction headed by defendant Metropolitan Theophilus and all persons adhering to said seceded faction.

XLIII

All of the acts of defendants referred to in paragraphs XXXVI through XLII hereof, were done and performed with the knowledge, acquiescence and consent of, and at the direction and order of Metropolitan Theophilus as head of said seceded faction.

XLIV

Unless restrained by order of this Court, defendants (except bank and defendant building and loan association) threaten and will continue to occupy the property of plaintiff Transfiguration Church, including the church and the parish house thereon situated, and will continue and fail and refuse to vacate, turn over and give possession of said real and personal property to plaintiffs, and will continue to keep defendant Rev. Jacob Pshenichniuk in occupancy of said property in his purported capacity as rector of plaintiff Transfiguration Church to minister unto the seceding defendants and all persons in league with them in revolt against the constituted authority of the Church Abroad and its governing organs, and will continue to use the corporate name of plaintiff Transfiguration Church as the name of their seceded faction and to carry on religious services and public worship in the said church building as if said defendants were the duly constituted and authorized rector, bishop and officers of plaintiff Transfiguration Church, and will continue to hold and control all said property of plaintiff Transfiguration Church and thereby divert said property from the use of the true beneficiaries thereof, to wit, from members of the church who are loyal and submit to the jurisdiction of the Church Abroad and its governing organs, and will divert said trust to the uses and purposes of the faction established by said defendants which has renounced the jurisdiction and authority of the Church Abroad and is in open rebellion against properly constituted ecclesiastical authority.

XLV

Unless restrained by order of this Court, defendant Metropolitan Theophilus, as head of the seceded faction that is in revolt against the duly constituted authority of the Church Abroad and its governing organs and as the purported diocesan authority over plaintiff Transfiguration Church, threatens and will continue to give orders and take action for the purpose of depriving plaintiffs and all members of plaintiff Transfiguration Church loyal to the Church Abroad of their right to the full use and occupancy of the property above described, and for the purpose of converting said property to the use and benefit of the seceding defendants and all persons who are in rebellion against the duly constituted authority of the Church Abroad and its governing organs. Unless restrained by order of this Court, defendants threaten to and will cause the funds aforesaid of plaintiff Transfiguration Church to be transferred and deposited in other accounts or other financial institutions, or to be otherwise spirited away, to the detriment of plaintiffs and all persons entitled to the benefit of said funds.

Unless defendants are restrained by order of this Court, as in the Complaint as amended prayed, plaintiffs and all members of plaintiff Transfiguration Church loyal to the Church Abroad will sustain great and irreparable injury, and a multiplicity of judicial proceedings will result.

XLVI

Plaintiffs have no plain, speedy or adequate remedy at law herein.

XLVII

The Court finds as follows with reference to certain allegations contained in “Answer Of All The Individuals Named as Defendants Except Metropolitan Theophilus”:

That as alleged in paragraph III thereof, plaintiff Transfiguration Church was incorporated by the individuals named in said paragraph and that the Articles of Incorporation contained the provision, “SIXTH: That no unincorporated association is incorporated hereby,” and that thereafter certain meetings were held composed of various members of the congregation of Transfiguration Church, at which the matter of the incorporation of the church was approved. In this respect the Court, finds, however, that no formal action was ever taken by the members or parishioners of Transfiguration Church to set up a formal Board of Directors, no minutes of the corporation as such were kept and that all affairs of the Church were conducted at all times from and after the said incorporation in the same manner as before the incorporation, and were conducted as if there had been no incorporation, and the Court further finds that the incorporation of the church served merely as a means to conduct the temporalities of the church and was not intended to, and did not, in any way establish any independent entity. whether corporate or otherwise.

That it is true that the said Articles of Incorporation made no reference to the Church Abroad or to any church administration with headquarters in Karlovtzi, and that said Articles of Incorporation contained the language quoted on page 7 from lines 1 through 22 of the said Answer.

That it is true that the “Parish Statutes” referred to in the paragraph commencing on page 7, line 27 of said Answer were adopted by the members and parishioners of Transfiguration Church and by Transfiguration Church, and the said statutes were forwarded to and approved by Archbishop Tikhon on May 5, 1936. Said “Parish Statutes” referred to in said Answer are the “Parochial By-laws,” referred to in paragraph XVIII hereof.

That it is true that plaintiff Transfiguration Church, on or about February 14, 1943, formally adopted certain “Normal Statutes” referred to on page 8 of said Answer. Said Normal Statutes consisted of certain general regulations for the government of all the parishes of the North American Metropolitan District and were approved by Metropolitan Theophilus for general use in the District, on December 30, 1935, and were used by plaintiff Transfiguration Church from June, 1936, on. At all times thereafter said Normal Statutes and said parish statutes or Parochial By-laws, together served as the by-laws of Transfiguration Church. Said Normal Statutes contained the provision quoted on page 9, from lines 7 through 15, of said Answer.

That Exhibit “B” to said Answer is a „translation of the Ucaz No. 362 of November 20, 1920, but is not an accurate translation thereof, an accurate translation of said Ukaz being plaintiff’s Exhibit No. 1 herein.

That as alleged in paragraph XI of. said Answer, and particularly at page 16 thereof, Patriarch Tikhon did issue a decree bearing number 348 (not 349) under date of May 5, 1922, under which the “higher church administration” of the Church Abroad was purportedly abolished and the temporary administration of the Russian parishes outside of ‘ Russia was purportedly “left with Metropolitan Evlogy.” Said purported decree was of no force or effect whatever and was unlawful and contrary to the laws of the Church, in that, among other things, it was based on political grounds; in that political grounds do not, and did not, under the laws of the Church furnish a basis for the abolition of a church administration or for the demotion or punishment of clergy; in that it was issued by the Patriarch and adopted by the Holy Synod and Higher Church Council under and only by reason of duress and under and as a result of physical compulsion exercised by the Soviet regime over the parties authorizing and issuing the same; and further in that the church administration within Russia prior to and during the time of the authorization and issuance of the said purported decree was under severe persecution by the said Soviet regime, in the course of which thousands of priests and bishops were imprisoned and very many executed, and the Patriarch’s own assistant was imprisoned and executed, and the Patriarch himself was placed under house arrest and was, in fact, imprisoned a few days after May 5, 1922, the date of said purported order. Subsequent to the issuance of said purported decree, the Church Abroad and its governing organs continuously to the present time existed and exercised all the powers and functions of a supreme church administration for all of the Church outside Russia, and was recognized, accepted and acknowledged as such by the governing organs of the Church inside Russia so long as there was a lawful church administration within Russia as herein found, and was recognized, accepted and acknowledged as such by the bishops within Russia who were imprisoned by the Communists and was recognized, accepted and acknowledged as such by all bishops and priests and by all parts of the Church outside Russia that were and remained loyal and faithful to the laws and canons of the Church.

That as alleged in paragraph XIV of said Answer the delegates of plaintiff Transfiguration Church to the said Cleveland Sobor were given a Nakaz in the language as quoted on page 22 lines 17 through 26, of the said Answer.

XLVIII

Except as expressly or impliedly found to be true herein, each and every fact, matter and thing alleged in each and every answer, as amended, herein, is not true.

CONCLUSIONS OF LAW

And as Conclusions of Law from the foregoing facts, the Court finds:

I

Upon the adoption by the said Cleveland Sobor of the resolution referred to in paragraph XXVIII of the Findings of Fact herein, defendant Metropolitan Theophilus and all bishops, priests and laymen, including all defendants herein (except defendant bank and defendant building and loan association) and all parishes, and congregations, who were and which were in league with him and who severed all ties with the Church Abroad and its governing organs and refused to recognize the authority of the Church Abroad, became, and at all times since then have been, a schismatic and unlawful faction or group and thereafter had no right to the control, use or occupation of any of the property of the Church Abroad, and had no right to the administration of any of its affairs or the affairs of any parish, congregation or diocese thereof.

II

Defendant Metropolitan Theophilus is not now and at no time since in or about the month of November, 1946, has been the lawful diocesan bishop of or over plaintiff Transfiguration Church. Defedant A. Lisin is not now, and at no time since November, 1946, has been, the lawful district dean of or over plaintiff Transfiguration Church. Defendant Rev. Jacob Pshenichniuk is not now and at no time since June 8, 1947, has been the lawful rector or pastor of plaintiff Transfiguration Church. None of the other defendants herein have or at any time since June 8, 1947, (and for sometime prior thereto) have had any lawful office with respect to plaintiff Transfiguration Church, whether as church warden, treasurer, secretary, or assistants to such officerships, or as members of the church committee of plaintiff Transfiguration Church. None of the defendants from and after the respective times mentioned in this paragraph have had any lawful authority whatsoever over the said property, real and personal, or over the affairs of plaintiff Transfiguration Church.

III

At all times since in or about the month of February 1947, Archbishop Tikhon has been, and still is, the lawful diocesan bishop of and over plaintiff Transfiguration Church. At all times since June 8, 1947, Vasily Shaposhnikoff has been, and now is, the (July appointed and lawful acting rector or pastor of plaintiff Transfiguration Church. At all times herein mentioned since in or about the month of March 1947, plaintiff V. A. Lisitzen has been and now is the duly elected, appointed and acting church warden of plaintiff Transfiguration Church. At all times since in or about the month of March, 1947, plaintiffs Nicolus Zane, George Blagoi, Galina Galway, A. Sveshnikoff and Ellen Starostin have been and now are the duly elected, appointed and acting members of the church committee of plaintiff Transfiguration Church.

IV

Plaintiffs are entitled to a judgment decreeing that plaintiff Transfiguration Church holds in trust for the use and benefit of the said church as a constituent member of the Church Abroad and for the benefit of all members of said church who adhere to the faith and doctrines of said church and who are and continue to remain loyal to, and abide by, and submit to the orders and jurisdiction of the Church Abroad, its governing organs and its duly constituted tribunals, authorities and representatives, the said property referred to in the above findings of fact.

V

Plaintiffs are entitled to a judgment decreeing that plaintiff Transfiguration Church and the plaintiffs named herein as Church Warden and members of the Church Committee, and their successors, as well as all members of said church who adhere to the faith and doctrines of said church and who are and continue to remain loyal to, and abide by, and submit to the orders and jurisdiction of the Church Abroad, its governing organs and its duly constituted tribunals, authorities and representatives, have the sole right to the use and occupation of the said property of plaintiff Transfiguration Church, for the purposes of worshipping in and carrying on and conducting all affairs of said church.

VI

Plaintiffs are entitled to a judgment decreeing that plaintiff Transfiguration Church has the sole right to use the name “Russian Orthodox Church of the Transfiguration of Our Lord” and the name “Holy Transfiguration Russian Orthodox Church.”

VII

Plaintiffs are entitled to a judgment decreeing that all defendants herein (except defendant Bank of America National Trust & Savings Association and defendant Wilshire Federal Savings & Loan Association of Los Angeles) and their successors, servants, attorneys, agents, and all others acting in aid or assistance of them, and all other members of plaintiff Transfiguration Church, who are allied or in league with them and are now in revolt against the Church Abroad, its governing organs and its duly constituted tribunals, authorities and representatives, have no right, title or interest in any of the property of plaintiff Transfiguration Church, including the property described in the Findings of Fact hereof, and any and all cash funds, moneys or credits of said church held by said defendants, including all sums received by said defendants as income, donations, or otherwise, subsequent to November 26, 1946, and during such time as» said defendants remain in possession and control of the property of plaintiff Transfiguration Church, and further that said defendants be ordered forthwith to vacate, turn over and deliver up to plaintiffs herein and/or their successors, all of said property, and to execute any and all documents, releases, instruments or papers of any nature whatsoever that may be necessary or advisable in order to transfer possession and control of said property from said defendants to plaintiffs, and that they be ordered to vacate, turn over and deliver up to the plaintiffs herein, and/or their successors, all of the said property.

VIII

Plaintiffs are entitled to a judgment against defendant Bank of America National Trust & Savings Association that said Bank release and deliver up to plaintiff Transfiguration Church the following sums on deposit in the following accounts as of November 29, 1948, as well as all other sums deposited or credited to said accounts since November 29, 1948:

(a) The sum of $33.80 in savings accounts No. 3545, in the name of “Russian Orthodox Church of the Transfiguration”;

(b) The sum of $747.73 on deposit.in account No. 4879, entitled “Holy Transfiguration Russian Orthodox Church”;

(c) The sum of $1,284.98 on deposit in commercial account entitled “Ladies’ Association of Russian Orthodox Church”;

all of said accounts being with the Western and Santa Monica branch of said bank.

Plaintiffs are entitled to judgment, against Wilshire Federal Savings & Loan Association of Los Angeles that said defendant release and deliver up to plaintiff Transfiguration Church the sum of $ 1,274.75 on deposit in account №3-3167 in the names of Jacob Pshenichniuk (Rev.), Vasily S. Nicols and Sergey G. Finn, and any and all other sums deposited in or credited to said account after November 29, 1948.

X

Plaintiffs are entitled to judgment decreeing that defendants (except defendants Bank of America National Trust & Savings Association and Wilshire Federal Savings & Loan Association of Los Angeles), their successors, attorneys, servants and agents, and all others acting in aid or assistance of them, and all other members of plaintiff Transfiguration Church who are allied or in league with them and are now in revolt against the Church Abroad, its governing organs and its duly constituted tribunals, authorities and representatives, be permanently enjoined from in any manner interfering with the right’ of the plaintiff Transfiguration Church and the plaintiffs herein named as Rector, Church Warden and members of its Church Committee, and or their ‘successors, and members of said church who are and remain loyal to, and abide by, and submit to the orders and jurisdiction of the Church Abroad, its governing organs and its duly constituted tribunals, authorities and representatives, to enter upon, occupy, use and otherwise possess the property of plaintiff Transfiguration Church for religious, educational, charitable, social and other purposes connected with the affairs of plaintiff church.

XI

Plaintiffs are entitled to a judgment decreeing that defendants (except defendants Bank of America National Trust & Savings Association and Wilshire Federal Savings & Loan Association of Los Angeles), their successors, attorneys,’ servants and agents, and all others acting in aid or assistance of them, and all other members of plaintiff Transfiguration Church who are allied or in league with them and are now in revolt against the Church Abroad, its governing organs and its duly constituted tribunals, authorities and representatives, be permanently enjoined from in any manner transferring, assigning, encumbering, secluding or disbursing, or causing to ‘be transferred, assigned, encumbered, secluded or disbursed, any funds, moneys, credits or deposits of plaintiff Transfiguration Church, including particularly but without limitation the funds and deposits referred to in the Findings of Fact herein.

XII

Plaintiffs are entitled to a judgment against defendants Rev. Jacob Pshenichniuk, Metropolitan Theophilus, Vasily S. Nicols, Zlata Polovtzova, S. G. Finn, S. Mouratoff, P. Maximoff, A. M. Shipov and Olga Bekisch, in the sum of $12,419.10 less a credit in the sum of $2,066.51 representing funds on deposit as of November 29, 1948, with said bank and less a credit in the sum of $1,274.75 on deposit as of November 29, 1948, with defendant Federal Savings & Loan Association.

XIII

Plaintiffs are entitled to an order decreeing that this Court shall retain and reserve jurisdiction over the subject matter in this litigation and over the parties hereto to make such other and further orders herein as may be necessary or advisable, in order to obtain performance of the acts ordered in said judgment and until full performance of said acts and full satisfaction of said judgment; to determine and declare who are the lawful successors of plaintiff Vasily Shaposhnikoff as rector, plaintiff V. A. Lisitzen as church warden, and plaintiffs Nicolus Zane, George Blagoi, Calina Calway, A. Sveshnikoff and Ellen Starostin as members of the church committee of plaintiff Transfiguration Church; to require and order defendants herein, other than defendant bank and defendant savings and loan association, to make and render a further accounting to plaintiffs of all funds and property chargeable to said defendants and all credits allowable to them on account of cash, funds and credits belonging to plaintiff Transfiguration Church, received by them and disbursements made by them during the period from November 26, 1948, to and including the date on which said defendants deliver possession to plaintiffs of all property of plaintiff Transfiguration Church. Any petition or application for such further accounting must be filed within ninety (90) days after the plaintiffs or their lawful successors receive possession of all the property of the church from said defendants. Service of process in that regard may be made upon Mr. Morton A. Albee or in any other manner the Court may order.

XIV

Plaintiffs are entitled to a judgment for their costs of suit herein.

XV

Such of the Findings of Fact hereinabove which may be in fact Conclusions of Law are hereby found to be Conclusions of Law and are hereby made a part of the Conclusions of Law herein.

XVI

Such of the Conclusions of Law hereinabove which may be in fact Findings of Fact are hereby found to be Findings of Fact and are hereby made a part of the Findings of Fact herein.

Judgment is hereby ordered accordingly.

Dated; December 31, 1948.

 

JOSEPH W. VICKERS,

Judge of said Superior Court

References

References
1 (be it in the form of a provisional supreme ecclesiastical government, or a metropolitan district, or otherwise).

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