Wagner The Relations of Session and Trustees Library of Che Theological Seminary PRINCETON * NEW JERSEY CP PRESENTED BY The Estate of Victor H. Lukens KF 4869 .P7 w2 1906 Wagner, Hugh D., The relations Of session and trustees THE RELATION. . FEB 11 1953 G Ng ISSION AND TRUS OF ; PRESBYTERIAN FORM OF GOVERNMENT CONSID- RED IN ITS BEARING ON THE CONTROL oF Ec- | CLESIASTICAL PROPERTY; WITH PARTICU- LAR REGARD TO STATE LAWS IN RELATION TO INCORPORATED ECCLESIASTICAL SOCIETIES, ra By HUGH K. WAGNER. PHILADELPHIA } Hee RESBYTERIAN BOARD OF PUBLICATION. 1906. Copyright, 1906, by é The Trustees of The Presbyterian Board of Publication anc Sabbath-School Work INDEX PAGE PROALU eK E LUSLGeS MUSE ACE AS \, '< ats s sc, e'e.0 eo 61s «'s 26 pee DSSS TMEEIACE ASoI= ss, Sicin sere 0.0 85 c's ons 8 27 Buudiges: Church, usecof oo. cence +s. Liens eChurche meaning of term...) os... oes. cots 22, 23 Committee on Temporalities, report of, ........ 12 Congregation, meaning of term, .......... 22, 23 Corporation) meaning Of term, sel... s 6s sls «+ 22, 23 ROEM ATER DOUVS mortars hale oun be ae avas coke. ens 25 DGACOMS ama tere a Beane AiG ec eelemiete © roa erates 13-16 EOE ROT Stine Sey aires hur wlotxsaiad ere nla oa aed Bese CaO Elders. mentioned in’Scripturé, ...... 2000. 0fees 8 BIMATI CES Merrett alee Pen aciee oie nae 28, 20, 44-46 Hormrots Governiinenit lt vires owas eds cicaters tees 7-19 Crevice SAGSEIN Dy secrier ction sehr oe eaten esse ok 7-21 re one 023° 9 TR [Bel Neha Sure a Semen ie GS HS i a EAR 7 A LCE PE DINSLICAl Pere han Oe seer ey tsbrore nan 33 Law, Gigi and otate;.,<.. 55 ss 15; 10; 21,.22, 23, 33 IMEEISICHE SEE Sete rnereack 5 le ON aes oe ae 10, 43 - Report of Committee on Temporalities, ........ II Roberts’ Manual cited, ..9, 27, 28, 30, 32, 33, 38, 39 [icta) oS cg U2) Be pele) Cote 8 Re Ce Sn a a 45 6 INDEX Session, authority Olas oe Q, 10, 18, 19, 24, 25, 27 Relation to Trustees, ....27, 37, 39, 41, 42 Society, meaning of term,). <2. 4a... 6 bs pene 22 Spiritual: Interests. A ase eo eae eee ee 10, 39 Temporalities, Committee on, report of,........ II Title to church property, ........26, 28, 30, 32, 37 Trustees, origin of custom of having, ........ ey. Trustees, Fae ts ae ke seam eee 12-14, 16-29, 37 Trustees,Power ofc. 2s ofan. ena ree 3294 Trustees, relation to Session, ..... 27,1375 30, Alma Trustees and Session cannot act on Temporal Matters in Joint Meeting, but Board of Trustees must separately pass thereon,...... 27 THE RELATIONS OF SESSION AND TRUSTEES The fundamental principle of church gov- ernment is expressed in I Cor. 14: 40: “Let all things be done decently-and in order.” It is not peculiar to the Presbyterian Church to have a distinctive form of church government or mode of procedure. Every denomination has its own particular way of conducting its affairs. Naturally the Con- gregational way of managing the matters of that body is peculiar to that sect. In like manner the Presbyterian Church has its own way of doing things. To the officers of a Presbyterian Church, it is important, therefore, to know what the Presbyterian method is. This paper is merely an endeavor to set forth plainly some of those principles of Presbyterian polity in which members of the Session and members i 8 THE RELATIONS OF of the Board of Trustees of a Presbyterian Church may be supposed to be jointly inter- ested. In the first place, it may not be amiss to say that, while “elders” are mentioned in the New Testament (I Tim. 5:17; Titus 1:5; I Pet. 5:1; Jas. 5:14; Acts 20: 17), trustees are not. Evidently, therefore, the arrange- ment whereby certain functions are com- mitted to trustees is one of human expedi- ency merely, being sometimes necessitated by the civil law of the place where the parti- cular church is located, though not by the ecclesiastical law. In fact, there is no defi- nite provision in the “Form of Government” of the Presbyterian Church for trustees, and their existence is only indirectly recognized by the “Form of Government” and Acts of the General Assembly. The origin of the custom of having trustees for the property of Presbyterian churches was as follows: “The Presbyterian churches in the Ameri- can Colonies were not churches which were — maintained by the Colonial or British governments. The established or State churches in those early days were the Con- gregational in New England, the Dutch Re- ell i EE SESSION AND TRUSTEES 9 formed in New York, and the Protestant Episcopal in a number of the Colonies. As a consequence, Presbyterian churches were obliged to provide for the care of their prop- erty by conveyances to individuals, who were regarded as trustees, and it was not until about the middle of the eighteenth century that charters began to be issued to them. The trustee system finds its origin, therefore, in the antagonism of the State in the early period of American history to the Presby- terian and other so-called dissenting churches. With the achieval of American independence came religious liberty, and leg- islation which enabled all the churches freely and adequately to hold and manage their temporalities as churches” (Roberts’ “Manual for Ruling Elders,” p. 378.) We must have recourse to authoritative enactments and judgments of the Presby- terian Church in the U. S. A. (acting by its General Assembly), and expressions by other Presbyterian authorities, as well as to decisions of the civil courts, etc., to find in what way the respective relations of Session and Trustees to each other and to the church have been defined. IO THE RELATIONS OF Fundamental as to the jurisdiction and authority of the Session may be quoted from Chapter IX, Section 6, of the Form of Gov- ernment (pages 360, 361), the following: “The church session is charged with main- taining the spiritual government of the con- gregation; for which purpose they have power'to . . . supervise the Sabbath school and the various societies or agencies of the congregation.” In 1898, an amendment to the Form of Government was adopted by the General Assembly, constituting Section 7, and imme- diately following the section from which I have just quoted, said amendment reading as follows :— “Subject to the provisions of the Directory for Worship, the Session shall have and exercise exclusive authority over the worship of the con- gregation, including the musical service; and shall determine the times and places of preaching the Word and all other religious services. They shall, also, have exclusive authority over the uses to which the church building may be put, but may temporarily delegate the determination of such uses to the body having management of the temporal affairs of the church, subject to the superior authority and direction of the Session” (Form of Government, p. 361). SESSION AND TRUSTEES uA The reason for the enactment -of the amendment just set forth is manifestly to be found in the recitals of an Act of the General Assembly in 1893 (1893 Minutes, p. 90), as follows :— “The General Assembly takes notice that the exclusive authority of the Session over the wor- ship of the Church, including not only the times and places of preaching the Word, but also the music and the use of the church buildings, is not sufficiently appreciated by the Chufch at large, and that there are frequent complaints that Trus- tees of congregations assume powers and author- ity, especially over music and the use of church buildings, which are not warranted by, but in con- flict with, the Constitution of the Church. “The Assembly enjoins upon the churches loyal adherence to our Form of Government, pro- viding that the authority of the Session over all matters of worship is paramount, and at the same time recommends that all such questions be treated by the Session with Christian tact and courtesy in the spirit of love and forbearance” (1893 Minutes, p. 90; “The Constitution of the Presbyterian Church in the U. S. A.,” ed. 1906, pp. 468, 469). As generally illuminative of the subject with which we are dealing, the Report of the Special Committee on the Temporalities of the church which recommended the adoption I2 THE RELATIONS OF of the act just set forth, may very well here follow, or, at least, the major portion there- of :— “The Committee to which was referred the Temporalities of the Church, met in Washington, D. C., December 14, 1892, and, after full delibera- tion and some correspondence and consultation, have agreed upon the following Report, which is hereby submitted to the General Assembly: “Overtures from thirty-two Presbyteries reached the last Assembly, asking ‘that some proper inquiry be made into the generally prevalent methods of managing the temporal affairs of our churches by means of Boards of Trustees, and that if these methods are found to be defective or injurious, that some means shall be taken to amend them.’ Twenty-nine of these petitioning Presbyteries ‘are strongly of the opinion that many features of the present methods of man- agement need such amendment, and that to be effective it may require some amendment to the Form of Government, defining the proper fune- tions of such Trustees, and their precise relations to the deacons and to the Session’ (see ‘Minutes’ of Assembly of 1892, pp. 52-58), and they there- fore ask ‘that a thorough inquiry be made into the whole matter, with a view to whatever subse- quent action may be found necessary.’ “In considering these Overtures, the following considerations immediately became prominent :— — “7, The Committee were embarrassed by the SESSION AND TRUSTEES 13 fact that they possessed neither the power nor the means of making a thorough official investi- gation into the methods of Trustee management in use in our congregations. There are no off- cial data accessible to the Assembly accurately informing us what churches have Trustees, and under what charters, and with what connection with the deacons or the Session they exercise their powers. “2. The very presentation of the Overtures, however, demonstrates beyond question that there is a widespread impression or conviction existing throughout the Church that the present system of Trustee management is not altogether satis- factory, and ought, if possible, to be amended. “3. To this fact further witness is borne by the report submitted to the last Assembly (‘Min- utes, p. 168) by the Special Committee on the Diaconate, which, while reciting the useful ends secured by the present system of Trustee man- agement, points out that ‘it does not conform - wholly to the permissive instruction of the Form of Government, authorizing us to commit the charge of the temporal affairs of the Church to deacons’ (Form of Government, Chap. vi.). This report recommends to the churches ‘a stronger emphasis upon the opportunity and propriety expressed in the language of the book for the sake of a more consistent organization of our official life.’ “4. In addition to this, members of the Com- mittee had much private information, gained in 14 THE RELATIONS OF part by laborious inquiry previous to their meet- ing, and showing clearly that there are certain defects in our mode of administering congrega- tional finances which are hable to become, and often do become, injurious to the peace and order of the churches. We presume it to be within the knowledge of ministers and elders generally, and such inquiry as we have been able to make abundantly confirms the impression, that hurtful misunderstandings not infrequently arise between the Trustees and the Session, less fre- quently between Deacons and Trustees, as to their mutual relations and duties. Contentions thus begun are hard to settle, and sometimes are car- ried to the civil courts, to the scandalizing of the Church, but often burn, half smothered for years, marring the harmony of the Church. These mis- understandings are due, we believe, chiefly to the absence in our organic ecclesiastical law (Form of Government) of any provision whatever for the existence of Trustees, or any definition of their functions and sphere of duties, designating their due relation to the Session, and providing for the peaceable adjustment of any misunder- standings. It is increased by the fact that the civil legislation in the different States regulating the powers of such Trustees varies widely in the different States, and is often very imperfectly understood both by ministers and elders, and by Trustees themselves, and much more by the body © of the laity, and sometimes, too, it seems to be shaped to suit the usages of other denominations -* SESSION AND TRUSTEES T5 rather than our own, so that financial management based upon it cannot be in entire accord with the genius of Presbyterian government. “It is true that the various decisions of our General Assembly and of the civil courts have done much to correct these evils, but they have not prevented, and cannot wholly prevent, occa- sional conflicts of authority with regard to such matters as the management of the music, the care of the Church property, and its use for other than strictly congregational purposes, and in gen- eral to that class of matters where the care of temporal affairs affects directly the watch and care of souls. “The Committee are impressed with the feeling that the nexus between these interests is a delicate one, and that the adjustment of the functions of the two bodies which are charged respectively with the temporalities and spiritualities, is a delicate and difficult task. On the other hand, a definition of these mutual rights and duties cannot be made mathematically exact. Much must be left to Christian tact and prudence. On the other hand, it is exactly the absence of clear and authoritative direction which has often pro- duced unhappy conflict between brethren, and even where no conflict exists, there is often a lack of that cordial and sympathetic feeling so neces- sary to mutual helpfulness. They, therefore, would recommend to the Assembly, the adoption of a deliverance given below; but before propos- ing this, they beg to call attention to the follow- 16 THE RELATIONS OF ing suggestions for the cure of these evils, made by the Chairman of the Committee. The Com- mittee have taken no action upon it, but regard it as deserving the attention of the Church and of some further inquiry before being either accepted or rejected. “It is suggested by the Chairman that the As- sembly might overture the Presbyteries to amend the Form of Government (Chap. VI, Of Dea- cons): ‘To them may be committed the tem- poral affairs of the Church,’ so as to read, “To them should ordinarily be committed,’ etc., and then follow this by a more explicit definition of the duties of Deacons, and their relation to the Session, providing for their being empowered (when it was possible) to act as Trustees under the civil law. Such an amendment should not make this practice obligatory for all churches without variation, but should recognize it as desirable wherever possible. There should then be an alternative practice recognized in the Form of Government, consisting of the one now gen- erally prevalent by Boards of Trustees, whose relation to the Session and Deacons could then - be better defined in the Form of Government itself and regulated. “Such a change as this would encourage our congregations to seek to attain to a diaconal man- agement so far as possible, without compelling them thereto. The reasons for it can only be briefly stated here. “It is certainly contrary to sound Presbyterian- SESSION AND TRUSTEES I ism, or to safe government of any kind, to com- mit affairs so important as the revenues of our congregations, which aggregate (see ‘Minutes,’ 1892, p. 750) upwards of $10,000,000 yearly, to a body of officers whose warrant for existence is wholly extra-constitutional, and whose actual conduct of affairs may be, and sometimes is, in open disregard of our organic law, and that without adequate remedy save by appeal to the civil courts. “Tt is no answer to this to say, what is gladly admitted, that the general management of affairs by Trustees is prudent and useful, or that the general body of Trustees are excellent brethren. The fault lies not in the administrations of the system, but in the system itself. This system has great advantages, but these advantages might all be retained while its evils were avoided, by simply giving to the managers of temporal affairs, by whatever name called, a proper standing in ecclesiastical law, prior to and not conflicting with their civil law warrant. “Tt is known to the Committee that this ar- rangement of a double tenure of office is actually in vogue in some of our congregations, and that it works satisfactorily. A similar practice obtains in other churches of the Presbyterian family, while in general it may be said that most of the Protestant churches of Europe and America make the control of temporalities part and parcel of their ecclesiastical law, subjecting it to far more stringent regulations than we have ventured 18 THE RELATIONS OF on. It might be added that the office of Deacon, so generally disused among us (three-fifths of all our churches being wholly without deacons), seems to have been shorn of its powers and dig- nities and then disused altogether, partly by reason of the general transfer to the Trustees of what naturally belonged to the Deacons. The appropriate remedy, and the only real cure, for the faults of our management of congregational funds would seem, therefore, to be a revival of the spiritual office, making the Deacons ordinarily the managers of temporal affairs and e.-officio Trustees, though allowing variations from this by means of an alternative practice which should be duly legitimatized and regulated” (1893 Min- utes, G. A., pp. 87-90). From all the foregoing, three truths will be evident :— (1) That “the Session is charged with maintaining the spiritual government of the congregation,’ incidental to which, it is given power to “supervise the Sabbath school and the various societies or agencies of the congregation.” The Session has, also, expressly been given “exclusive author- ity over the worship of the congregation, in- cluding the musical service,” over all relig- ious services, and over “‘the uses to which the church buildings may be put.” With SESSION AND TRUSTEES 19 relation to the control of the Session over the uses to which the church buildings may be put, if the Session see fit temporarily to delegate the determination of such uses to the body having management of the tem- poral affairs of the church, such temporary delegation is limited by the organic law of the church to be “subject to the superior authority and direction of the Session.” (2) That, while the Form of Government expressly provides for the existence of the body known as the Session, and confers on ~ that body paramount authority over the re- ligious interests of the congregation, yet the Form of Government does not provide for the existence of a body known as the Board of Trustees, nor does the Form of Govern- ment require that in all cases the temporali- ties of the church shall be held or adminis- tered by a Board of Trustees, but allows that the Board of Deacons may likewise act in that capacity. (3) That the rights, powers, authority, jurisdiction, and duties of the Trustees can- not be determined solely by ecclesiastical law, but must primarily be determined by the statute law of the place where the par- 20 THE RELATIONS OF ticular church is located, and the general principles of the law of trustees as adminis- tered by the courts of the State or jurisdic- tion in which such church is situated, and in cases where some of the members of the par- ticular church are citizens of a State other than the State under the laws of which the church is incorporated, or of which some of its officers are citizens, the law of trustees, as administered by the United States Courts, will also enter as a determining factor. In an act of the General Assembly relating to the records of congregational meetings and Boards of Trustees, providing that “the rule is not discretionary, but mandatory, that the church Session shall order the incor- poration of proceedings of congregational meetings with their own records,” and further providing how said rule is to be construed, the General Assembly enacted as follows: “This construction of the rule in question is to be understood to apply to the proceedings of trustees in all cases in which, under the laws of the places where they ex- ercise their functions, their action is subject to review by the Session” (1887 Minutes of the General Assembly, 117, 118). SESSION AND TRUSTEES 21 From this it is evident that the General Assembly recognizes that the law of the place must control, and that in some places the action of the Board of Trustees, in certain cases at least, is not subject to review by the Session. In an act of the General Assembly in the year 1897 (Minutes, pp. 136, 139; Presby. Dig., p. 880), in which it was determined who shall be entitled to vote “at elections for trustees or other persons to manage the tem- poral affairs,” the General Assembly expressly added the following proviso: “Provided, That nothing in this regulation shall be valid which contravenes the provis- ions of the laws of any of the States, of the United States, or of special church charters.” Doubtless, without this proviso, the civil courts would have ignored the act of the General Assembly in so far as, in any par- ticular jurisdiction, it contravened the pro- visions of the civil law, but I cite this pro- viso to show the recognition by Presbyterian authority of the fact that the law of the State where the church is located, and the laws of the United States, and the church charter 22 THE RELATIONS OF 2 (if there be one) are, after all, the para- mount authority to which all must bow. In similar strain, Dr. J. A. Hodge, in his work on church government, entitled “What is ‘Presbyterian “Law,*, says? (pee “In some Presbyterian churches also the so- ciety is a distinct body (under the State law) from the congregation and from the church. In others the word is used to designate the congregation. As a separate body, how- ever, it is foreign to our Form of Govern- ment.” We thus see that the State law sometimes introduces features into Presby- terian churches which are not contemplated by the Constitution of the Presbyterian Church, but, under such circumstances, the State law, and not the Presbyterian law, must prevail. I may here remark parenthet- ically that the records of some Presbyterian churches show that the word “Society” has been applied to the ecclesiastical organiza- tion, while the word “Congregation” has been used in connection with the corporation, or legal association. That this usage is in- correct, and that the words “congregation” and “society” (including the word “corpor- ation” in some States) mean the same thing, SESSION AND TRUSTEES 23 and something different from the word “church,” is evident from the following au- thorities :— Wilson vw. Presbyterian Church, 2 Rich. Eq. (a) Cat.), 198. Robertson v. Bullions, 9 Barb. (N. Y.), 64. First Baptist Church v, Witherell, 3 Paige (N. Y.), 301, Chancelor Walworth. 24 Am. & Engl. Encl. of Law (2d ed.), 327, and cases there cited. Idem, 340. Before taking up the question of the pre- cise relations between the Session and Board of Trustees of Presbyterian churches, with a view of determining their status in rela- tion to each other, and in relation to the law, I will quote from the work of Dr. Hodge referred to before (p. 40), certain general propositions on this subject, for which Dr. Hodge cites his authorities in footnotes, but with relation to which it is probably hardly worth while going into detail in this pam- phlet :-— “What power have Trustees over church property? This is determined by the char- ter and the State laws. “They have no moral right to convert the house of God into a place of business or amusement.’ So the O. 24 THE RELATIONS OF S. Assembly declared in 1860. In 1863 it gave a fuller deliverance: That ‘the custody and care of the property pertains to them for the uses and purposes for which they hold the trust’—that is ‘for the worship of God and the employment of such other means of spiritual improvement as may be consistent with the Scriptures, and according to the or- der of the Church.’ “The Session is charged with the supervision of the spiritual interests of the congregation; and this includes the right to direct and control the use of the building for purposes of worship.’ “The Trustees are bound to respect the wishes and action of the Session as to the use and occu- pation of the house of worship. The Ses- sion is the organ or agent through whom the Trustees are informed how and when the church building is to be occupied; and the Trustees have no right to refuse compliance.’ If the house is desired for other purposes than for worship, the Trustees may refuse, but they have no right to grant it for pur- poses which the Session disapprove. If they go contrary to the expressed wishes of the Session, the proper appeal is first to the congregation, to whom the Trustees are SESSION AND TRUSTEES 25 responsible, then to the Presbytery, and finally, if necessary, to the legal- tribunals. In 1874 our Assembly decided ‘that the Con- stitution of our church charges the Session with the supervision of the spiritual interests of the congregation, and all the services and matters pertaining thereto; and that any action by the Board of Trustees unauthorized by the congregation, tending to annul or contravene in any way such supervision and control, is illegal and void;’ ‘that, as regards the church building, Sabbath-school and lecture room, the Trustees have no right to grant or withhold the use of either against the wishes or consent of the Session.’ ” It may be slightly in the nature of a sur- prise to some persons, judging from the way in which the matter is commonly discussed, to learn that in the case of a church which is incorporated the title to the property is not in the Board of Trustees of that church. The so-called Trustees of such incorpor- ated body are not trustees in the ordinary sense, nor are they trustees in the sense in which that term is commonly used in rela- tion to ecclesiastical property. The Trustees of incorporated churches are merely the di- 26 THE RELATIONS OF rectors of the corporation. The corporation itself supplies the place of the ordinary trustees, to hold the title to property (Pot- ter on Corporations, p. 691, sec. 565). It being true that the corporation owns the property of the church and of the corpora- ’ tion and the revenues thereof, we may say that the fact that the trustees of the church are directors of the corporation which owns everything, rather than mere trustees of the realty, might be held to enlarge their powers, rather than to restrict them. It makes them answerable to the corporation for their acts, and not to the Session. In other words, there are two bodies in the church that have authority—the Session (under the Presbyterian Form of Govern- ment), and the corporation (under the laws of the particular State). | In this connection, two things should be noted :— (1) The Trustees must act as a board. “The trustees of a religious corporation are the only persons empowered to bind a cor- porate body, and in order to execute this power they must meet as a board, deliberate, and decide. The separate and individual SESSION AND TRUSTEES 27 action of the trustees without meeting and consulting together as a board, even though a majority in number should agree upon a certain act, is not binding upon the corpora- tion, and cannot of itself create a corporate | liability ; nor is their action in the meeting of the whole body of corporators, or of another and larger class in which they are but a com- ponent part, a valid corporate act. It seems, however, that they may delegate power to one of their number, or to another person, or may ratify or approve the acts of one of the board acting for them” (24 Am. and Engl. Encl. Law (2d ed.), p. 344; Roberts’ “Manual for Ruling Elders,” p. 383). (2) This rule applies equally to the Ses- sion. As the Supreme Court of the United States said: “The possession of the elders, though accompanied with larger and more efficient powers of control, is still a fiduciary possession. It is as a session of the church alone that they could exercise power. Ex- cept by an order of the Session in regular meeting, they have no right to make any or- der concerning the use of the building; and _ any action of the Session is necessarily in the character of representatives of the 28 THE RELATIONS OF church body by whose members it was elected,’ (Watson v. Jones, 13 Wallace, 679; Roberts’ “Manual for Ruling Elders,” p. 386). In view of the fact hereinbefore set forth that the corporation owns the property of the church, including its revenues, it appears that the following resolution offered at the church meeting of a certain Presbyterian church (resolutions of like tenor, it is be- lieved, being frequently adopted by Presby- terian churches) was inappropriate, out of order, and utterly inconsistent with the fact of the existence of the corporation :— “Resolved, that the Church ‘Society hereby authorize and direct the Board of Trustees of the corporation to collect all subscriptions, dues, and contributions to the church society or to the cor- poration, and to take charge of and manage all the finances and disburse same in meeting the obligations of the society and corporation, subject, however, to the laws and usages of the Presby- terian Church, excepting, however, special col- lections and contributions to and for regular benevolent funds— which motion was adopted unanimously.” Without such a resolution of the church meeting, the Trustees or Directors of the SESSION AND TRUSTEES 29 Corporation would properly have done the very thing that they were supposed by this resolution to be thereby authorized to do. Their authority to do so arose not from any such resolution of the church meeting, but by virtue of the fact of incorporation. To be consistent with the fact that a church is organized as a corporation, having Directors or Trustees duly authorized by its Constitu- tion to transact its secular and business af- fairs, that resolution should have been omitted. The fact that this resolution was offered in the past merely shows that the method of managing the affairs of Presby- terian churches when the same have been in- corporated, was not clearly understood, and this resolution appears to be a relic of that mode of administration which was custom- ary in unincorporated church bodies where the title to the real estate was held by real Trustees, or where, as in the States of New Jersey, Maryland, etc., the Trustees them- selves are incorporated, and the Trustees constitute the corporate body. In this con- nection, it may be well to say that the method of administering church affairs which is pro- vided for by the incorporation of the congre- 30 THE RELATIONS OF gation has been recognized and recom- mended by Presbyterian authority ( Roberts’ “Manual for Ruling Elders,” p. 373). It is, also, highly desirable that each particular local or individual church be incorporated, so as to constitute a body capable of receiv- ing bequests or devises by will, for, if not incorporated, such a church is only what is known in law as a voluntary association and incapable as such to receive or hold the title to property, according to the decisions of the courts in certain, though not all, jurisdictions (19 Harvard Law Review, p. 202). Five methods of holding and administer- ing church property are enumerated in Rob- erts’ “Manual for Ruling Elders” (pp. 372, 373). There Dr. Roberts says :— “While the provisions of the statute laws for the holding of the property of religious societies or churches differ greatly in the several States in matters of detail, only five general methods are in use—viz. :-— “t, CHURCH AS THE CorPORATION. Where the churches themselves become corporations upon the execution and filing of articles of association, or by securing charters in accordance with law, as in such States as Indiana and Pennsylvania. “2, TRUSTEES AS THE CORPORATION. Where the SESSION AND TRUSTEES 31 churches are authorized to elect trustees, said trustees being constituted the corporation, as in such States as Maryland, Montana, and New Jersey. “3. TRUSTEES APPOINTED BY THE Courts. Where, as in Virginia and West Virginia, trustees are appointed by the courts for the churches, in order to secure their property rights. “4, CORPORATION SOLE. Where, as in the Roman Catholic Church, the property is held by the bishop. Delaware has legislation prohibiting this method of holding church property. In Oregon, however, special legislation has been secured, per- mitting this method. “5. INDIVIDUAL TRUSTEES. Where members of the congregation, three or more in number, are appointed to hold the property, and are legally the trustees. Unincorporated churches where- ever located, will be protected, as a rule, in their property rights by the courts. It is advised that all such churches take steps, where possible, to hold their property by corporations, and that in the drafting of charters, of articles, and of by- laws, the aid of competent counsel be secured. “6. Att CHuRCH Property Is A_ Trust. Whether the property of churches be held by corporations or by individual trustees, whatever the method, the property is in law a trust, and the civil courts will protect that trust.” “The powers of a religious society and of its officers and members are derived from the 32 THE RELATIONS OF statute under which it is organized, and are limited only by the provisions of the statute and the constitution of the society” (24 Am. and Engl. Encl. Law (2d ed.), p. 343). This brings us to the enunciation of a fundamental principle of the law as applied to the administration of the temporal affairs of a church by its officers, if incorporated, or by its trustees, if unincorporated, namely, that “the power of trustees is not arbitrary ; nor is it discretionary, but they hold the property according to the discipline, rules, and usages, of the denominations.” 24 Am. & Engl. Encl. Law (2d ed.), p. 344; State ex rel, Watson v. Farris, 45 Mo. 183; Prick- ett v. Wells, 117 Mo. 502, 504; Roberts’ “Manual for Ruling Elders,” pp. 378, 379, 384, 385, 386; Brun nenmeyer v. Buhre, 32 Ill. 183; Curd v. Wallace, 7 Dana (Ky.), 190; 32 Am. Dec. 85; Isham vw. Dunkirk First Presby. Church (Supm. Ct. Spec. TE: ), 63° How. PrewCNeY..), A465) Y orkebitstek es formed Presby. Church v. Bowden (Supm. Ct. Gen. T.), 14 Abb. N. Cas. (N. Y.), 356; Baptist Congregation v. Scannel, 3 Grant Cas. (Pa.), 48; Watson v. Jones, 13 Wallace, 679; State v. Crowell, 9 N. J. Law, 390; but see Watson v. Garvin, 54 Mo. 353. SESSION AND TRUSTEES 33 On this subject Dr. Roberts, in full accord with a large number of legal decisions, says: “Where a congregation is affiliated with a denomination, the laws and usages of the denomination are of force in the congrega- tion, and cannot be set to one side. For this reason the deliverances of the General Assembly have an important bearing on the powers of the trustees. Where the civil law is silent, the ecclesiastical law is operative” (Roberts’ “Manual for Ruling Elders,” p. 386). To the same effect, see Potter on Corporations, p. 697, sec. 571. “The American system of ecclesiastical law is an entirely independent system, un- influenced by that of England or by the common law of any other country. It is based upon, and governed by, statute laws of? the various States:>. .. .: The bet- ter to accomplish the purposes of their being, religious corporations have been created by statute in nearly all the States of the Union. The statutes enacted generally for the in- corporation of religious societies provide, in an easy and popular manner, one nearly uni- form system, for the purpose of managing with more facility and advantage the tem- 34 THE RELATIONS OF poralities belonging to the church or con- gregation. Religious societies so incorpor- ated, are not ecclesiastical corporations, as in England. In this country, they are only regarded as civil corporations, governed by the ordinary rules of the common law pecu- liar to themselves. The society itself is in- corporated ; its members are the corporators. The great and paramount duty of the trustees of religious corporations is to see that the temporalities committed to their charge are fairly and fully devoted to the purposes which the founders had in view. All authority conferred upon them is neces- sarily subordinate to this great end; and all exercise of it beyond the legitimate attain- ment of this end is usurpation. It is the duty of the civil courts of law to enforce the per- formance of their duty by trustees of relig- ious corporations, unless that performance involves some violation of the law of the land. It is no excuse for an aberration from such duty for such officers to say that they have been directed to, or are sustained in their action by, a majority of those from whom they owe their appointment. When such questions arise, the civil courts will SESSION AND TRUSTEES 35 recognize the established denominational rules and practice of the several churches in the control of their temporalities. The legal tribunals, however, have no juris- diction over the church, or the members thereof as such, nor have the ecclesiastical judicatories any authority to interfere with the temporalities of a religious society or congregation” (Potter on Corporations, secs. 563, 564, 571). “Tf the trustees of a religious society which has the legal control of the temporal- ities of a congregation abuse the trust im- posed in them and misapply the funds of the society, the court has power at common law to compel them to account for the misap- plication, notwithstanding statutory provis- ions excepting religious corporations from the visitorial power of the court” (24 Am. and Engl. Encl. Law (2d ed.), p. 350). “Tf any trustee fails in his duty or violates his trust the society may, by proper proceed- ings, remove him and fill his place with an- other, and the courts will recognize the va- lidity of the act and enforce it. The act of the church in deposing the officers must, however, be founded upon some semblance 36 THE RELATIONS OF of legal process” (24 Am. and Engl. Encl. Law (2d ed.), p. 342). Trustees may, however, exercise discre- tion. “Courts cannot control the discretion of trustees in the management of church funds so long as they do not violate their charter; they are responsible to their con- stituents alone” (24 Am. and Engl. Encl. Law (2d ed.), pp. 352, 353). “In the regulation of their temporal con- cerns religious societies, acting as corporate bodies under the statute, must be governed by majorities acting within the scope of their authority and proceeding according to law. The majority must, however, be a majority of the members appearing at a regular meet- ing of the society. A meeting of the church members, as such, is not a meeting of the incorporated society, and it cannot instruct the trustees in their duties or assume any power over them” (24 Am. and Engl. Encl. Law (2d ed.), p. 360). An election of trustees of a Presbyterian church is void if made by those who do not contribute their just proportion to the neces- sary expenses of the church, according to their own engagements or the rules of the SESSION AND TRUSTEES 37 congregation, the Constitution of the Presby- Petian |Church ino thesUy So “A. giving the right to vote, in such election, to those only who thus contribute (State v. Crowell, 9g N. J. Law, 390). In People v. Tuthill, 31 N. Y., 550, it was held, however, that an election held by a re- ligious society is not to be set aside and de- clared void, merely because certain illegal votes were received, which did not change the result of the election. “The title to property acquired by an in- corporated religious society in its own name is in the corporation. The possession by the trustees of the society is possession by the society. The trustees do not hold the prop- erty in trust for the corporation, but their relation to the society is the same as that of directors” (North St. Louis Christian Church v. McGowan, 62 Mo., 279, 288; First Baptist Church v. Robbeson, 71 Mo., 326, 332, 333; 24 Am. and Engl. Encl. Law (2d ed.), 362, citing People v. Fulton, 11 N. Y.,.94; Bowen v. Irish Presby. Congrega- tion, 6 Bosw. (N. Y.), 245; Van Deuzen wv. Presbyterian Congregation, 4 Abb. App. Dec. (N. Y.), 465; Watson v. Jones, 13 38 THE RELATIONS OF Wall., 679; Miller v. Gable, 2 Den. (N. Y.), 492; Organ Meeting House v. Seaford, 1 Devy-Eq, CGNs: Gara) 7457): “Where the ownership is in the society, the Trustees cannot convey the property without the consent of the owners, and a statute conferring such authority upon them is unconstitutional” (24 Am. and Engl. Encl. Law (2d ed.), p. 366). It is advised that in no case should a ma- jority of the trustees be noncommunicants, and that at least one ruling elder be placed on the board” (Roberts’ ‘““Manual for Rul- ing Elders,” p. 380). That the majority of the Board shall be members of the Church is obligatory by the constitution of some churches. “Whether the trustees constitute the cor- poration, as in New Jersey, or whether they are officers of the incorporated congregation, as in Pennsylvania (and other States), they should hold regular meetings for the trans- action of business. The time of these meet- ings should be fixed in the by-laws of the corporation” (Roberts’ “Manual for Ruling Elders,” p. 381). In the foregoing, while some items have SESSION AND TRUSTEES 39 been included for mere information, yet, taken all together, we now have before us a body of legal and ecclesiastical principles which will enable us, possibly with the help of other authorities yet to be cited, to deter- mine, to a certain degree, what should be the relations of the Trustees to the Session. On this subject Dr. Roberts says :— “The relation between the Session of the church and the trustees of the congregation should be at all times fraternal and helpful. At least once a year the Session and the Trustees should meet to consider together the financial condition of the organization. Further, it would be well if both bodies should come to a clear understanding as to their respective powers. ... The Session is the superior body, both by civil and ecclesiastical law. The churches are required by the General Assembly to report an- nually, through the Session, to the Presbytery, the sums expended for congregational expenses. The trustees, therefore, should report annually to the Session upon such expenses, as matters of information” (Roberts’ “Manual for Ruling Elders,” p. 384). While the principle hereinabove set forth, that the Session is a body superior to the Board of Trustees, is clear enough, yet diff- culties arise in the application of the princi- 40 THE RELATIONS OF ple to concrete cases because, beyond ques- tion, each body has certain jurisdiction and authority on which the other ought not to encroach. In some cases, very close ques- tions of jurisdiction arise. It is not at all evident how the abolition of the Board of Trustees and commission of the care of the temporalities to the deacons, or provision that the deacons shall ex officio constitute the Board of Trustees would mend matters. Differences of opinion and conflict of author- ity between the deacons and the Session would then arise as now, under the present system, between the Trustees and the Ses- sion. The only sure way to prevent such conflicts would be to constitute the Session ex officio the Board of Trustees. In this con- nection it may be well enough to repeat the words of the Committee of the General As- sembly as set forth near the bottom of page 15 of this paper. Says the Committee: “A definition of these mutual rights and duties cannot be made mathematically exact. Much must be left to Christian tact and prudence. On the other hand, it is exactly the absence of clear and authoritative direction which has often produced unhappy conflict between SESSION AND TRUSTEES AI brethren, and even where no conflict exists there is often a lack of that cordial and sym- pathetic feeling so necessary to mutual help- fulness.” Notwithstanding the doubt thus ex- pressed, the General Assembly in 1891 laid down the law as follows (1891 Minutes G. A., p. 187) :-— “The Constitution of our church charges the Session with the supervision of the spiritual inter- ests of the congregation and all services and mat- ters pertaining thereto; and any action by the Board of Trustees tending to annul or contravene in any way such supervision and control is illegal and void.” Of course, the jurisdiction of the Trustees in certain cases is clear enough; for instance, after a fire, to adjust and receive payment of the insurance. It would rather seem that the cases of questionable jurisdiction would generally originate with the Session, on ac- count of their interpretation of the scope of “the spiritual interests of the congregation and matters pertaining thereto.” This latter would seem, for instance, to include the printing of a roster of the members of the church. 42 THE RELATIONS OF It having been shown above what is the general nature and scope of the authority that is conferred on the Session, it would seem that the citation of a few concrete cases as illustrative examples of how this author- ity has been construed will serve a useful purpose. In deciding a conflict over the possession of the church building of the Walnut Street (Louisville, Ky.,) Presbyterian Church, the Supreme Court of the United States, inter alia, said :— Lhe trustees obviously hold possession for the use of the persons who, by the Constitution, usages, and laws of the Presbyterian body, are entitled to that use. They are liable to removal by the congregation for whom they hold this trust; and others may be substituted in their places. They have no personal ownership or right beyond this, and are subject, in their official relations to the property, to the control of the Session of the church” (Watson v. Jones, 13 Wallace, 679). In a case where it was proposed that the charter of a Presbyterian Church should confer on the Trustees the selection of the church organist “subject to the approval of the Session,” the court said :— SESSION AND TRUSTEES 43 “Applying the fundamental law of the Pres- byterian Church which gives the direction otf the public worship to the minister and church Ses- sion, and the rules of law which define the rights of members in church organizations to the ques- tion submitted to us in this case, we think that the exceptions to the proposed fourth amendment to the charter are well taken and must be sus- tained. The amendment proposes to give power to the trustees to appoint an organist, subject to the approval of the Session. The duties of an organist are connected with the public worship. This is solely under the control of the minister and church Session. It is a violation of the funda- mental law of the Church to place this power in the hands of the trustees, even though it be qualified by requiring the approval of the Ses- sion. If provision be made by the congregation or the trustees for the employment of an organist, the exclusive power of appointment, direction, and removal of him belongs to the church Ses- sion; otherwise they have not that direction of the public worship which by the law of the Pres- byterian Church is committed to them” (Walnut Street (Philadelphia, Pa.) Church Case, 7 Phila. Reports, 310; 3 Brewster, 277). From what is said in the case last cited, it would appear that the custom of some Pres- byterian churches of electing a Music Com- mittee is unconstitutional; nor, it would seem, could such a committee be legally 44 THE RELATIONS OF appointed by the Session. Possibly, if the Session were to appoint an advisory. com- mittee with whom the Session could advise from time to time, such action would be legal, providing that said committee were not empowered with any supervisory or ex- ecutive functions, and were created by the Session, and not by the Church, and gee to give information to the Session. In the minutes of a meeting of the Board of Trustees of a Presbyterian Church, the following is to be found :— [A member] presented several bills for printing the programmes of the church services and weekly bulletins. After discussion on motion by [a member] duly seconded, it was decided that the bills for the printing mentioned already incurred shall be paid, but [a member] was instructed ta notify ... [the] Chairman of the Session com- mittee having the matter of said bulletins in charge, that no more bills for programmes and bulletins will be approved for payment by the Board of Trustees.” In the course of the investigation of eccle- siastical and civil law necessary to the prepa- ration of this pamphlet, I framed a hypothet- ical question based on this action of the Board of Trustees of that Presbyterian SESSION AND TRUSTEES 45 Church, and submitted same to Dr. William H. Roberts, Stated Clerk of the -General Assembly, who is recognized as an authority on Presbyterian law and usages. Dr. Rob- erts replied to me as follows :— “In reply to yours of May eighth, I have to state that the action of the trustees of a Missouri church, assuming to have power to audit and pay bills incurred by the Session of the church, in connection with weekly meetings, is not in ac- cordance with Presbyterian law and usage. We have the same general legislative system as to church corporations in Pennsylvania which you have in Missouri, and Pennsylvania courts have consistently held that in all things connected with the management of churches, excepting the care of the church edifices,,the Session was the gov- erning body.” The authority of the Session to require the corporation to pay the bills referred to is evident, not alone from Dr. Roberts’ letter, but from the power conferred by Section 6, Chapter IX, of the Form of Government, to maintain “the spiritual government of the congregation” and “to supervise” every “agency of the congregation” (see page 10). It appears, also, from Section 7, Chapter IX, of the Form of Government, 46 THE RELATIONS OF providing, inter alia, that “the Session shall have and exercise exclusive authority over the worship of the congregation” (see page 10). It appears, furthermore, from the Act of the 1891 General Assembly (1891 Minutes, p. 187; see page 41), charging “the Session with the supervision of the spiritual interests of the congregation and all services and matters pertaining thereto.” It will be perceived that, with two bodies thus having authority to draw on the treas- ury of the corporation for matters belonging to their respective jurisdictions, the Trustees for what they regard as temporal matters, and the Session for what they deem the spir- itual interests of the congregation, the ex- chequer could easily be depleted by either in ignorance of the fact that the other had planned a heavy draft upon it. If the Board of Trustees were a mere “Ways and Means Committee” created by the Session, it would be wise for the Session to confer with such committee before undertaking any expense, particularly any unusually large one or any expense in the nature of a fixed or perma- nent outlay, to have the benefit of the opin- ion of those conversant with the financial SESSION AND TRUSTEES 47 matters of the corporation as to whether the income of the corporation in view of its out- go justified the proposed expense for the contemplated object. No man can hope to know everything; and, if the members of the Session devote themselves to the super- vision of spiritual matters, they will natur- ally not be equally familiar with the financial affairs of the corporation, particularly as the financial records are kept by the Board of Trustees. It would seem, therefore, that the Session might possibly avoid mis- takes as well as friction by consulting the Board of Trustees about financial matters. This would in no sense be an abdication of its authority by the Session, but would merely be doing what the Session unques- tionably would do if it had committed the management of temporal matters to a com- mittee composed of members of its own body. 4 Date Due IN U.S.A. a W FE = 4 a Eee PHOTOMOUNT PAMPHLET BINDER PAT. NO. 877188 Sap ton ne ne eee mS oe ee Se ee ee ee ne ee ae Manufactured by GAYLORD BROS. Inc. Syracuse, N. Y. Stockton, Calif. ’ t I ! , \ | t Hi ie Lj te iH ii t 7 » io ’ ¥ ; ity Hi yl! it : ii ; i ; | e i by z 4 it Stn i} ; qj 4 i , (| ; } i anit Heit cinta # ait . t oy Aa 4 ye A Hii Bt Fie i tre} a 5 ‘4 : Se < h ak