Cleveland (Jul. 22)
Much interest was displayed in Jewish circles in this city in the opinion rendered by the Court of Appeals of Cuyahogo County, State of Ohio, 8th District, in the long drawn-out litigation, between the Orthodox and Conservative elements of the membership of the Cleveland Jewish Center.
The Court, which upheld the contention of the Orthodox Committee, headed by Abraham A. Katz, in its legal fight against Dr. Solomon Goldman, former rabbi of the Center, a graduate of the Jewish Theological Seminary, maintained that since the constitution of the congregation specifically states that it was formed for the purpose of preserving orthodox Judaism it is to be considered a trust, and those who changed the character of the congregation from Orthodox to Conservative, committed a breach of trust.
The opinion, dated July 19, 1929, written by Justices Hughes of the Third District, and concurred in by Judge Justice of the Third District and Judge Williams of the Sixth District, sitting by designation, states:
This action is before us on appeal and is submitted to us upon demurrer to the amended petition which seeks to enjoin the use of church property in violation of alleged trust conditions imposed thereon. There are thirteen individuals who join as plaintiffs, asserting that they are members of a committee representing the orthodox members of the congregation.
The amended petition further alleges in substance:
That the congregation is a corporation not for profit;
That the defendant Goldman is the acting rabbi for the congregation, and that the other thirty-two individual defendants are the trustees of the congregation;
That this action was brought by these plaintiffs on behalf of the orthodox members of the congregation who are too numerous to name and be made parties plaintiff, but that they are all in good standing;
That the congregation was incorporated for the purpose of promoting traditional or orthodox Judaism in the worship of God, and to build a synagogue for a like purpose;
That this congregation was formed in 1917 by a consolidation of two orthodox congregations which at all times before accepted and promulgated the doctrine of orthodox or traditional Judaism, and in the church services adopted the rites, ceremonies and practices appertaining thereto;
That traditional or orthodox Judaism means that religious doctrine which recognizes certain things set forth in detail;
That pursuant to the consolidation
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in 1917 there was adopted a constitution for the congregation, and officers were elected, and for six years the congregation was conducted as an orthodox church;
That pursuant to this consolidation agreement, the church property which had been so used for the past six years by the defendant congregation was sold, and that the sale money, together with money raised by contributions from the members of the congregation, a new synagogue was erected and formally dedicated to the promotion of orthodox Judaism;
The real estate is then specifically described;
That by reason of the facts set forth herein above, a trust was imposed upon this church property, and that it should be used for orthodox Judaism only;
That the defendant Rabbi and the trustees are opposed and hostile to orthodox Judaism and the ceremonial observations pertaining thereto;
That they have failed and refused to observe the trust imposed upon the property in this, to-wit, and here follow thirty-eight specifications of alleged omissions and commissions, all of which are alleged to be contrary to and in defiance of the provisions of the constitution which was adopted in 1917 by the congregation, and which is still in force;
That, in 1924, a meeting of the congregation was had for the purpose of adopting a new constitution, where and when a new constitution was adopted, ignoring orthodox Judaism, but its adoption was contrary to the terms of the old constitution relative to the manner in which amendments were authorized or made;
That the defendants are wrongfully operating under this new constitution and refused to permit the plaintiffs to conduct orthodox services within the synagogue.
Then follows the prayer.
There have been many theories presented to us in oral arguments and by briefs, raising nice questions regarding the rights of various congregations to change the use of properties once adopted to certain purposes, or dedicated for certain purposes, but we deem it unnecessary to discuss these various theories because, it will be noted, that in the amended petition there are two paragraphs, or perhaps three, setting forth certain facts which if established by evidence would entitle the plaintiffs, in our judgment, to an injunction.
It will be observed that it is alleged in the amended petition that the congregation was incorporated for the purpose of promoting traditional or orthodox Judaism in the worship of God, and to build a synagogue for a like purpose, and that this synagogue was so built and dedicated to the promotion of orthodox Judaism; and then it is alleged that defendants are guilty of certain wrongful acts set forth in some thirty-eight specifications of alleged omissions and commission, which the pleaders say is conduct contrary to and in defiance of the provisions of the constitution adopted in 1917 by the congregation, and which is still in force. They allege then that the attempted adoption of a new constitution whereby the things now being done by the defendants is authorized, was adopted contrary to the provisions of the old constitution.
It is needless to go further into a discussion of the other questions raised in this case, because if these averments are true, and by the demurrer to the amended petition they are admitted to be true, the plaintiffs are entitled to an injunction.
The demurrer to the amended petition is, therefore, overruled and exceptions noted and defendants given leave to re-file answers within two weeks.
Justice and Williams, JJ., concur.
Counsel for Plaintiffs: Walter Hamilton, Esq.; Counsel for Defendants, Messrs. Stanley and Horowitz.