185, 108 Fed. 46; People v. City, 31 Chi- | affirmed a decree of a Circuit Court discago Legal News, 247. Judgment reversed and cause remanded, with a direction to quash the indictment. Mr. Justice Harlan did not hear the argument, and took no part in the decision. missing a bill in a suit for the distribution of the property and assets of a society alleged to have ceased to exist. Affirmed. See same case below, 43 C. C. A. 323, 103 Fed. 561. Statement by Mr. Justice McKenna: This suit was brought for the distribution of the property and assets of the Har CHRISTIAN SCHWARTZ et al., Petition-mony Society, which the bill alleged had ers, JOHN S. DUSS et al. (See S. C. Reporter's ed. 8-41.) Presumptions - from lapse of time ceased to exist. The bill also prayed for an injunction against John S. Duss to restrain him from in anywise dealing with the property of the society, and also for a receiver. The bill was exceedingly voluminous. stated the origin and principles and plan of com-government of the society; that many in It munistic society resulting trust-con-dustries were started and conducted by it, current findings of fact. mand satisfied. including a savings bank; the town of Economy, Pennsylvania, founded by it; and 1. Any claim which, as a matter of right, could that its acquisitions, including 3,000 acres have been made on a communistic society of land in the city of Pittsburg, amounted under a provision of its plan that members in 1890 to upwards of $4,000,000; and "all who contributed no property to the soclety of said possessions, up to and until the should, on withdrawing, receive such sum as the leaders of the society should deter- grievances hereafter complained of, were mine, will from long lapse of time be pre-scrupulously used for the benefit of all its sumed to have been demanded and the de- members, and for the advancement, benefit, and continuation of the society;" that until those grievances the society, "from the period of its inception until a recent date, adhered rigidly to its plan of government, and became illustrious and highly respected by reason of its sincere advocacy of the equality of man, its espousal of the highest principles of Christianity, and its honesty and benevolent administration of all public functions, whether in the management of its internal affairs, or in its many transactions with the citizens of western Pennsylvania." 2. A communistic society will be presumed so to have discharged its obligation to deceased members who contributed no property to the society, but in consideration of support dedicated their labor and services, as to leave no undischarged obligations or rights for distant relatives of such deceased members to assert or claim against the community or its property. 8. The adoption by the members of a communistic society of a plan by which all property contributed to the use and benefit of the community was to be "joint and indivisible stock," and all contributions were to be irrevocable, was not the creation by the members of a trust in the property for the benefit of the society, as such, which, on the doctrine of resulting trusts, conferred on the descendants of members who contributed no property to the society any such proprietary right or interest as entitled them on the dissolution of the society to share in its prop-government of the society, wasted nearly its erty or assets, or to have an accounting. 4. The disputed facts involved in concurrent findings of a master and both the circuit court and the circuit court of appeals that a society had not been dissolved, either by the consent of its members or by the abandonment of the purpose for which it was founded, will not be reviewed by the Supreme Court of the United States. [No. 38.] The bill also averred that the society "but once in a period of ninety years suffered [11] from serious internal disorder," which arose from the induction into the society of one Count De Leon, his artifices and subsequent secession. That in 1890 there "began a second conspiracy, the results of which overturned and destroyed the entire entire wealth, depleted its membership to a few aged and infirm women, and placed the management of the society and the control of its remaining assets in the hands of one man, and certain associates and confederates within and without the ranks of the society." That the acting and directing mind of the conspiracy was John S. Duss, and he obtained his power as follows: In 1847 a Argued April 22 and 23, 1902. Decided plan of regulation and government of the October 27, 1902. United society was adopted, by which its internal affairs were managed by a "board of elders," composed of nine members, and its external N WRIT of certiorari to the Third Circuit to review a judgment which NOTE.-A8 to presumption of payment from lapse of time-see Dixon v. Gourdin (S. C.) 1 L. R. A. 628, and note. Circuit were managed a board On resulting trusts-see notes to Fink v. L. Baker and Jacob Henrici were chosen the tees," composed of two members. Romulus first board of trustees. Baker died in 1868, and Henrici and Jonathan Lenz became the board of trustees; the latter was succeeded, upon his death in 1890, by Ernest Woelful; Woelful also died in 1890, and Duss became his successor. Henrici died in 1892, and one Samuel Sieber was appointed, and, on his retirement from the society, Gottlieb Riethmueller, a relative of Duss, was elected trustee. At the time of the filing of the bill, Duss and Riethmueller were trustees. The bill detailed the acts and purposes of Buss at great length. It is, however, enough to say that the bill alleged that he became senior trustee and a member of the board of elders, and conceived the purpose of wrecking and dismembering the society, and attempted to execute such purpose. That the condition of the society gave him opportunity; that he caused the expulsion of at least one member, and induced or paid others to withdraw. That the increase in the society could only be through the admission of new members, and he directed that no new members be elected under any circumstances whatever, and as a result thereof the said Duss and Susie, his wife, were the last members admitted in the four years preceding the filing of the bill. [12] That he entered into certain arrange ments with one Henry Hice and John Reeves, of the town of Beaver, Pennsylvania, by which he used $1,000,000 of the society's money, without the knowledge or consent of its members, "to pay off the alleged indebtedness of the Economy Savings Bank, of which said Hice and Reeves were the principal officers," though at the time he knew that the bank was wholly insolvent by reason of the overdrafts made by said Hice and Reeves, and although he knew that they had caused a loss to the society of over $2,000,000, "as officers and stockholders in said bank, and officers and stockholders in the Beaver Falls Cutlery Works and File Works, the debtors of said bank;" that he had not sued to recover back the money, but, on the contrary, had abetted them in obtaining further assets of the society. of large sums of money," induced, within two years preceding the commencement of the suit, to withdraw from the society, and that he was endeavoring to compel remaining members "to depart, by means of intimidation and oppression." *That the membership of the society was [13] reduced to eight persons, none of whom were aware of the actions of Duss, or were consulted by him. "That on the 12th day of April, 1894, the said Duss, without any authority from the members of the Harmony Society, and in the utmost disregard to his trust, secretly entered into an agreement with said Hice, Reeves, and one James Dickson, whereby he, the said Duss, agreed to convey the town of Economy, the surrounding properties, and certain other lands of the Harmony Society, situate in Allegheny county, to the Union Company, an alleged corporation created under the laws of the state of Pennsylvania. And your orators allege that a conveyance has been made by said Duss for the lands as aforesaid, and that the same was made without the knowledge of your orators, or any members of the said society, excepting, possibly, Susie C., wife of said Duss, and Gottlieb Riethmueller. That by the said pretended conveyance and sale of the home of the Harmony Society and its other properties, the said Duss has attempted to wholly terminate the existence of said society, not only as to the government thereof by the board of elders and by the members, but also as to the ownership of any prop crty. That the said Union Company, in addition to said Duss and Riethmueller, is composed of said Hice and Reeves, debtors of the said Harmony Society, as hereinbefore stated, and one James Dickson, the private bookkeeper and confidential agent of said Duss, whose interest in said corporation was acquired by gift from said Duss. "That your orators are advised that it was not competent for the said trustees to convey said properties to the said Union Company, but such transfer was a breach of trust, and wholly invalid." That in pursuance of his scheme to defraud the society, and to pay the indebtedness of the Economy Savings Bank, and for paying off claims upon which the society was only partly liable, if at all, he and his cotrustee, Henrici, executed a mortgage for the sum of $400,000 upon the real estate It was further averred that the principle of the society, but that Henrici, at the time of equality had been departed from. That of its execution, "was in articulo mortis, Duss and his family enjoyed every luxury, and wholly beyond any power of compre- while the aged and infirm members were hension of his act." And on the day of obliged "to be content with the bare necesJune, 1893, he caused to be executed an-saries of life, awarded with grudging, stintother mortgage, without the knowledge or ing hands." consent of the members, for $100,000, bearing interest at 6 per cent, upon the land described in the former mortgage, to raise a fund "wherewith to secretly secure and induce removal of those members most likely to inquire into the validity or propriety of his conduct as trustee." It was averred that the society had certain dividend-paying stocks which Duss, in pursuance of his scheme, disposed of with out the knowledge of any member of the society, except possibly his wife and Gottlieb Riethmueller. The names of ten persons were stated, who, it was alleged, Duss, "by representation, coercion, and the payment And it was finally averred "That recently said Harmony Society has become dissolved as aforesaid; that all[14] of its purposes and practices, established as aforesaid by the founder of said society and by the ancestors of your orators, have been abandoned; that the pursuit of agriculture no longer exists in said society; that its chief assets, consisting of bonds, stocks, and other securities, and the town of Economy, with its buildings, and the adjacent lands of said society, consisting of some 3,000 acres, and which constituted the basis of organization and business of said society, have been sold and conveyed away by the said Duss as aforesaid, in fraud, however, of the rights of your orators and their cotenants; and that, by reason of the facts hereinbefore set forth, your orators and the said last members, except the said Duss and wife, are now tenants in common of all said lands and tenements, and entitled to partition thereof in proportion to their respective interests. Messrs. George Shiras, 3d, and S. Schoyer, Jr., argued the cause and filed a brief for petitioners. Messrs. S. B. Schoyer, J. J. Miller, S. Schoyer, Jr., and Shiras & Dickey filed a brief for petitioners in support of the petition for writ of certiorari. Messrs. D. T. Watson and Johns McCleave argued the cause and filed a brief for respondents. Contentions of counsel sufficiently appear in the opinion. Mr. Justice McKenna delivered the "That for some time past the members of said Harmony Society have been retiring therefrom, and have received the amount of their interest in said association in the land or money, or both, the land being set apart in severalty to them, and have re-opinion of the court: leased all of their rights and interests in said association in consideration for such payment or conveyance to them; and that, by said retirement and withdrawal, the membership of said association has been reduced to the persons hereinbefore named members; that by common consent this as sociation has ceased to exist as an association; and that, if the property thereof has ever been impressed with a trust (which your orators deny, as being contrary to public policy, and void in law or equity), such trust has wholly ceased, and the assets of such dissolved association have reverted to the donors thereof, among whom were the ancestors and intestates of your orators, as hereinbefore fully set forth." Duss, Hice, Reeves, and the Union Company answered separately. The other defendants joined in an answer. By agree ment of the parties the case was referred to a master, with "authority to hear and take all the testimony, and to find all the issues of law and facts, and to report the testimony and such findings to the court; and if the report of such master shall suggest a decree that the plaintiffs, or any of [15] them, are entitled to an account against the defendants, or any of them, and the same be confirmed by the court, then the case shall be referred again to the master to state such an account, and report thereon to the court." Under the orders of the court the master considered the following questions: Two questions were submitted to the master: (1) Have the plaintiff's such a proprietary right or interest as would entitle them, upon the dissolution of the society, to share all its property or assets, or which entitles them to an accounting? (2) Has the society been dissolved by consent or by an abandonment of the purposes for which it was formed? A negative answer to ei ther of the propositions determines the controversy against *petitioners, and both were[16] so answered by the master and by the circuit court and the circuit court of appeals. The case, therefore, seems not to be as broad or as complex as presented in the argument of counsel. The case is certainly clear from any disputes of fact, and we may dismiss from consideration the accusations against Duss, not only as to his motives in joining the society, but also as to his motives and acts as a member and officer of it. concerned alone with the legal aspect and consequences of his acts, and those of his associates. They, however, pertain more particularly to the second proposition. We are This is not the first time that the Harmony Society has been before the cou.is. Its history has been recited, and its principles characterized and defined, not only by the supreme court of Pennsylvania, but by this court. Schriber v. Rapp, 5 Watts, 351, 30 Am. Dec. 327; Baker v. Nachtrieb, 19 How. 126, 15 L. ed. 528; Speidel v. Henrici, 120 U. S. 377, 30 L. ed. 718, 7 Sup. Ct. Rep. 610. "1st. Have the plaintiffs, or any of them, The society was formed by one George such a proprietary right or interest in the Rapp, who, with his son and others, came property and assets of the Harmony So- from the Kingdom of Wurtemberg to the ciety as entitled them, upon the dissolu- United States in 1803 or 1804, and settled tion of the society, to any part of, or share at Harmony, in Butler county, Pennsylin, such property or assets, or as entitles vania. In 1814 the society moved to Posey them to the account prayed for in the bill? county, Indiana, and later removed to Econ"2d. Has the Harmony Society been dis-omy, Pennsylvania, its present abode, in solved by the common consent of the members or by an abandonment of the purposes for which it was formed?" On both propositions the master reported adversely to the claim of the petitioners, and recommended a decree dismissing the bill. His conclusions of fact and law were approved and accepted by the circuit court, and a decree entered dismissing the bill. The decree was affirmed by the circuit court of appeals. The case was then brought here by certiorari on petition of the plaintiffs in the circuit court. Other facts will be stated in the opinion. 1825. Its members "were associated and combined by the common belief that the government of the patriarchal age, united to the community of property adopted in the days of the apostles, would conduce to promote their temporal and eternal happiness." 19 How. 126, 15 L. ed. 528. Their relations, principles of government, personal and property rights, were provided for by written contracts, executed respectively in 1805, 1821, 1827, 1836, 1847, 1890, and 1892. The present discussion is concerned with the first four. By article 1 of the contract of 1805, each subscriber to that contract delivered up, re-, about 3,000 acres, now known as 'Economy,' where they have since remained, and which has since become very valuable, and on which they have erected many buildings, including dwellings and factories of various kinds, and made many valuable improvements." In 1827 another agreement was entered into, the preamble of which was as follows: "Whereas, by the favor of Divine Provi dence an association or community has been formed by George Rapp and many others, upon the basis of Christian fellowship, the principles of which, being faithfully derived from the sacred Scriptures, include the gov ernment of the patriarchal age, united to the community of property adopted in the days of the apostles, and wherein the single object sought is to approximate, so far as human imperfection will allow, to the fulfilment of the will of God, by the exercise of those affections and the practice of those virtues which are essential to the happiness of man in time and throughout eter [17] *In article 2 they pledged obedience and submission to the society, and promised "to promote the good and interest of the community," and to that they pledged their children and families. But, recognizing a possible weakness and inability to "stand to it in the community," they promised (article 3) never to demand any reward for themselves or children for "labor or services," and declared whatever they should do would be "as a voluntary service for our brethren." In consideration of this renunciation of property and dedication of labor and services, George Rapp and his associ-nity. ates promised to supply the subscribers to the contract with all the necessaries of life, not only in their "healthful days, but when they should become sick or unfit for labor." And if, after a "short or long period," a member should die or otherwise depart from the community, "being the father or mother of a family," such family should "not be left widows and orphans, but partakers of the same rights and maintenance." Article 5 was as follows: "And if the case should happen, as above stated, that one or more of the subscribers, after a short or long period, should break their promise, and could or would not submit to the laws and regulations of the church or community, and for that or any other cause would leave Harmony, George Rapp and his associates promise to refund him or them the value of his or their property brought in, without interest, in one, two, or three annual instalments, as the sum may be large or small; and if one or more of them were poor, and brought nothing into the community, they shall, provided they depart openly and orderly, receive a donation of money, according to his or their conduct while a member, or as he or their circumstances and necessities may require, which George Rapp and associates shall determine at his or their departure." The society became the owner of about 7,000 acres of land at Harmony, which, on May 6, 1815, was conveyed by Frederick Rapp, as attorney in fact, to Abraham Ziegler for $100,000. That year, or in 1814, the society removed to Indiana. There a second agreement was entered into January 20, 1821. This agreement expressed, as that of 1805, the submission of the subscrib[18]ers to the society, the dedication of their service and labor, and contained the same promises of support. The master found that "in 1825 the society removed from Indiana to Beaver county, Pennsylvania, where they purchased and settled upon a tract of land containing "And whereas, it is necessary to the good order and well being of said associations that the condition of membership should be clearly understood, and that the rights and privileges and duties of every individual therein should be so defined as to prevent mistake or disappointment on the one hand, and contention or disagreement on the other." This agreement was an amplification of that of 1805. Article 5 of the latter became article 6. This agreement was signed by 522 members of the association, and afterwards, and until February 14, 1836, was signed by 144 additional members. In 1832, dissensions having arisen, a large number of the members withdrew, under the leadership of one Count De Leon. They received $110,000, and granted a release unto George Rapp and his associates of all of their right and title in any of the prop-. erty "belonging to the society of George Rapp and his associates." *In 1836 another agreement was entered [19] into revoking and annulling the 6th article of the agreement of 1827,-5th article of the agreement of 1805. The agreement recited the 6th article "And whereas, the provisions of the said 6th article, though assented to at the time, manifestly depart from the great principle of a community of goods, and may tend to foster and perpetuate a feeling of inequality, at variance with the true spirit and objects of the association; "And whereas, the principle of restoration of property, besides its pernicious tendency, is one which cannot now be enforced with uniformity and fairness, inasmuch as the members of the association, in the year 1816, under a solemn conviction of the truth of what is above recited, did destroy all record and memorial of the respective contributions up to that time; "And whereas, continued happiness and prosperity of the association, a more intimate knowledge of each other, have removed from the minds of all members the least "1st. The said 6th article is entirely annulled and made void, as if it had never existed; all others remain in full force as heretofore. and well being of the association, that some "2d. All the property of the society, real, "3d. Should any individual withdraw from the society or depart this life, neither he in the one case nor his representatives in the other shall be entitled to demand an [20] account of said contributions, whether in land, goods, money, or labor, or to claim anything from the society as matter of right. But it shall be left altogether to the discretion of the superintendent to decide whether any, and, if any, what, allowance shall be made to such member or his representatives as a donation." These agreements, the master found, "are the agreements and documents under which, or some of which, the plaintiffs claim the right to share in the property and assets of the society as heirs of former members." And as to the relations of the plaintiffs to the society, the master found as follows: "1st. That none of the plaintiffs were ever members of the society. "2d. That all of those members of the society through whom Christian Schwartz claims as their heir signed the agreements of 1836 and 1847, and continued members until their death. "3d. That Antony Koterba claims as heir The agreement was signed by all who were then members, and subsequently by thirty-of his father, Joseph Koterba, and his halfthree others. brother, Andreas Koterba; that Joseph Ko- Prior to his death, in 1834, Frederick Rapp, a member of the society, had been its business agent, and transacted its external affairs. After his death the members of the society (July 5, 1834) executed a power of attorney to George Rapp, constituting him such general agent, with power to ap"4th. That the grandparents of David point agents and substitutes under him. Strohaker, viz., Christian Strohaker and On the same day he appointed Romulus L. wife, and Matthias Rief and wife, joined Baker and Jacob Henrici his substitutes. the society in 1805, and all remained memThis power of attorney was signed by 402 bers until their death,-all dying between members, and recited the death of Freder-1820 and 1825, except Mrs. Rief, who died ick Rapp, and the consequent necessity for the appointment of a new agent, so that the temporal affairs of the society would continue to be managed in a mode which had proved convenient and satisfactory, constituted George Rapp such agent with power of substitution, invested him with all necessary powers, including the receipt and the execution of conveyances of real and personal property. George Rapp disclaimed any greater interest in the then resources or future earnings of the society than other members. George Rapp was the founder of the society, and continued to be its head, or superintendent, and to rule and govern it until his death, in 1847. After his death another agreement was executed (August 12, 1847). It was signed by 280 members. The agreement recited the death of Rapp, and expressed the necessity, "to the good order between 1830 and 1836. That his father, "5th. That Lawrence Scheel and Jacob *"6th. That none of the parties through [22] whom the plaintiff's claim contributed any money or property to the society." He divided the persons from whom the plaintiffs claim as follows: "1st. Those withdrawn from the society before the execution of the agreement of 1836. |