Judge Slough' s Full Decision, as prepared "by himself, in the first trial of the Chuj?ch of the United Brethren in Christ vs. the Seceders from said BX9675 .A5ff4 mm- hSdA ,AB er^-1 Warfield Library Judge Slough's Full Decision, AS PREPARED BY HIMSELF, RIRST TRIAL <^i-mi,i st»*> HURCH OF IH[ United Brethren in Christ vs. THE SECEDERS EROM SAID CHURCH. Court of Common Ipleaa, NEW LEXINGTON, PERRY CO., OHIO, October 2-3, 1889. DAYTON, OHIO: United Brethren Publishing House, 1889. f/ JUDGE SLOUGH'S FULL DECISION, AS PREPARED BY HIMSELF. THOMAS L. GRIGGS AND OTHERS ) ^^ the Court of Common Pleas OF Perry Co., 0., DAVID MIDDAUGH AND OTHERS. ) Case No. 2170. vs. SLOlIGl^, JUDGE. i The question involved in this case is one of title to certain real estate described in the petition, which was purchased by the Church of the United Brethren in Christ in 1851, and the title conveyed in trust to certain persons named in the deed and their successors in office forever for the use of that Church. It is conceded that the title to the property in controversy is held by the Church at large ; that it does not belong to the local congregation at Junction City, this county; and that it is held by the trustees of that local congregation for said Church at large. Each of the contending parties claims to be the lawful trustees, and to hold it for the parties respectively represented by them as the true Church of the United Breth- ren in Christ. The controversy arose because of certain action of the General Conferences held in the years 1885 and 1889 ( the latter at York, Pa., May, 1889,) respecting the proposal and submission by the former and the adoption by the latter of an amended constitution and a revised confession of faith for the Church. After participating several days in the proceedings of the last named Conference, and discussing and voting upon the adoption of those instruments, fifteen of the one hundred and thirty delegates composing that Conference, with Bishop Wright as one of their number at their head, because of the adoption of those instruments ( by the votes of one hundred and ten delegates for, and the votes of only twenty delegates against them), withdrew from that Conference and consti- tuted themselves into a separate " conference " at another hall in another part of the city of York. The General Conference (of 1889) proceeded and completed its business, and the separate " conference " proceeded and completed the business that came before it. Each of these bodies, with their respec- tive adherents, claims to be the true Church of the United Brethren in Christ, and as such entitled to the property of the Church for the uses for which the Church holds it. Jn this case the plaintiffs represent the General Conference of 1889 and its adherents, and ^the defendants represent those who seceded from that General Conference and their followers ; and the contest is as to which of these contending parties shall have the Church property above referred to. The plaintiffs claim that the defendants, and those whom they represent, are no longer members of the Church of the United Brethren in Christ ; that they have put themselves, or have been put, without the pale of that Church; and that, therefore, they have no just or lawful claim to the title or use of the property of the Church. On the other hand, the defendants claim that the Church, as represented by the plaintiffs, because of its alleged perversion of the trust upon which the Church property is held, has no rightful claim to the property or its further use ; and that the property and its use should be decreed to the Church as represented by the defendants. Hence, the main question in this case is : Has there been by the Church, as represented by the plaintiffs, a 'perversion of the trust upon which the Zion Church property at Junction City was granted to the Church of the United Brethren in Christ? It is claimed by the defendants that this alleged perver- sion of the trust results from the action taken by the above- mentioned General Conferences, especially the action of the General Conference of 1889, respecting the adoption of the amended constitution and the revised confession of faith for the Church, which action the defendants allege was uncon- stitutional, illegal, and arbitrary. Now, does the action of these General Conferences in the matters s^pecified work a perversion of this trust? Civil courts can have jurisdiction of a case like this only upon the question of the perversion of a trust. In the inquiry whether there has been a per- version of a trust such as is involved in this ca?e, civil courts may look into the question whether an ecclesiastical body, like the General Conference of this Church, has, in its action, transcended its powers or jurisdiction as a legislative, judicial, or executive body. Civil courts may, as this court apprehends the law, look into and determine the question whether there has been, by the action of such body, a sub- stantial and evident departure in essential matters of faith; since such action would affect the ti;:le to the property held by the Church for its uses. But such departure must be from essential faith, and must be obvious— not reasonably open to con- troversy. For illustration : Should a General Conference of the Church strike out of its confession of faith the second and third persons of the Holy Trinity, so as to make the faith 6 Unitarian, here would be such a substantial and obvious de- parture as would work a perversion of the trust upon which the church property is held. The civil court may examine and say whether the General Conference of this Church proceeded in an obviously illegal and arbitrary manner — in a manner evidently in disregard of its plain organic law (its constitution)— to amend its constitution and change in essentials of doctrine its confession of faith. This court is of the opinion that amendments to the constitution and changes in the essentials of the faith should be made agreeably to the organic law. But the general rule is that the doctrinal decisions and judicial constructions (of church constitution and legislation under it) of the highest judicatory of a church are binding upon the civil courts, and the latter have no power to review or reverse them. Upon this point the following authorities are cited : In the case of Watson vs. Jones, decided by the Supreme Court of the United States, and reported in 13 Wallace, 679 to 733, the court on page 727 of opinion says: "In this class of cases we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of Church and State under our system of laws, and supported by a preponderating weight of judicial authority, is that whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church- judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final and as binding on them in their ap- plication to the case before them." Farther along in the opinion the court says: "The right to organize voluntary religious associations to assist in the expression and dissemi- nation of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this govern- ment, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies if anyone aggrieved by one of their decisions could appeal to the secular courts and have them reversed." There is much more said in the opinion in that case that bears upon the determination of the questions in this case. The same rule is laid down by High on Injunctions (last edition), Section 810, etc.; 45 Ameri- can, 449; 41 Pennsylvania State, 9; 45 Missouri, 183; 89 Indiana, I'M). Harrisou vs. Hoyle, 21 Ohio State, 294. GaflF vs. Greet, 88 Ind.. 122. Potter on Corporations, vol. 2, 709 etc , 719, 720. Walker vs. Wainwright, 16 Barb.. 486. Robertson vs. Bullions, 9 Barb.. 64. German Ch. vs. Seibert, 3 Pa. St., 282. Shannon vs. Frost, 3 B. Mon., 253. Gibson vs. Armstrong, 7 B. Mod., 481. Hale vs. Everett, 53 N. H., 2. Terraria vs. Vasconce, 23 111., 403. Harmon vs. Dreher, 1 Speer Equity, 87. German Ref. Ch. vs. Seibert, 3 Barr., 282. McGinnis vs. Watson, 41 Pa. St., 1. Chase vs. Cheney, 58 111., 509. "The civil courts act upon the theory that the ecclesiastical courts are the best judges of merely ecclesiastical questions and of all matters which concern the doctrines and discipline of the respective denomina- tions to which they belong. " Where a schism occurs in an ecclesiastical organization which leads to a separation into distinct and conflicting bodies, the respective claims of such bodies to the control of the property belonging to the organiza- tion must be determined by the ecclesiastical laws, usages, cu.stoms, principles, and practices which were accepted and adopted by the organ- ization before the division took place." The White Lick Quaker case, 89 Indiana, 136. "Tlie principle may now be regarded as too well established to admit of controversy, that in case of a religious congregation or ecclesi- asiical boly. which is in itself but a subordinate member of some gen- eral church organization, having a supreme ecclesiastical judicatory over the entire membership of the organization, the civil tribunals must accept the decisions of such judicatory as final and conclusive upon all questions of faith, discipline, and ecclesiastical rule." High on Injunctions, vol. 1. Section 310, 314. 8 Judge Owens, in delivering the opinion of the Supreme Court of Ohio, in the case of Mannix vs. Purcell, not yet reported, but found in Law Bulletin, vol. 21, on page 76, says: "It has been held that where a religious body becomes divided, and the right to the property is in conflict, the civil courts will consider and determine which of the divisions submits to the church local and general. This division is en- titled to the property. In determining which of the divisions has main- tained the correct doctrine, the findings of the supreme ecclesiastical tribunal of the denomination in question are binding upon the civil courts." [See authorities cited by Judge Owens in this case.] Now, the Church of the United Brethren in Christ is a per- fectly organized society. It has its houses of worship, its burial grounds, etc. (its property), its congregations, its pastors, its bishops, its quarterly conferences, its annual conferences, and its General Conference. The General Conference of the Church is its supreme legislative, executive, and judicial body. The Church possesses the element or quality of unity and the power of perpetuity^ and such a society can no more be affected by the withdrawal of a faction of its members than the universe can be destroyed by the disappearance or extin- guishment of some of Heaven's lesser luminaries. The Gen- eral Conference of the Church is— to quote and adopt from the decision of Chief Justice Gibson in the great Presbyterian Church case — "a homogeneous body, uniting in itself, with- out separation of parts, the legislative, executive, and judicial functions of the Church government, and its acts are referable to one or the other of them, according to the capacity in which it sat when they were performed." Commonwealth vs. Green, 4 Wheat, 531. All persons becoming members of the Church of the United Brethren in Christ not only accept its constitution and con- fession of faith as they are when they enter the Church, but they either expressly or tacitly consent to such changes in either as this supreme authority of the Church shall lawfully make. 9 Now what of the General Conferences of 1885 and 18S1) of this Church, and what of the action of each respecting the amended constitution and the revised confession of faith? It is admitted that these General Conferences were lawfully constituted. No question is or has been made touching the validity of the election or credentials of the delegates respect- ively composing these General Conferences. On the contrary, it is and has been conceded on all hands that the delegates to these General Conferences were regularly and lawfully chosen, certified and commissioned. It is also practically admitted that the delegates to the General Conference of 1889 were elected with especial reference to the action taken by the General Conference of 1885 and the action to be taken by the General Conference of 1889 respecting the amended con- stitution and the revised confession of faith. The constitu- tion of 1841 (in force up to 1889) expressly provided for its amendment ; and it is granted in argument by counsel for defendants that changes even in the essentials of the faith may be made after changing the constitution of the Church so as to provide the mode or manner of altering the confession of faith. This court is of the opinion that the amendment of the constitution and the revision of the confession of faith (which were made) could lawfully be made at the same time- But it is contended that the constitution of 1841 provided that it might be amended only upon "the request of two- thirds of the whole society," and that the amended constitu- tion and the revised confession of faith were made and adopted without the required request of two-thirds of the whole so- ciety, indeed without any request of the society. Now is it true, either in law or in fact, that the constitution was amended and the confession of faith revised without the request of two- thirds of the whole society that the same be done? Is not the precise contrary true, that both were done regularly and law- 10 fully ii|)on the express request of two-thirds of the whole society ? What was done by the General Conference of 1885 toward the amendment of the constitution and the revision of the confession of faith? The General Conference of 1885 appointed a committee to formulate an amended constitution and a revised confession of faith, to he submitted to a vote of the entire membership of the Church at an election to be held after full and due published notice thereof and of the nature of the pro- posed amendment and revision. Such proposed amended con- stitution and revised confession of faith, together with notice of such election, were fully and duly published, and such election was regularly and duly held. The clergy and the press of the Church made diligent and urgent effort to secure a full vote of the entire membership of the Church. All had opportunity to vote, and the election was in every way free and fair. The result of the election was : For the amended constitution and the revision of the confession of faith, 50,685 votes ; against, 3,659, being 14 votes for to one vote against. Certainly the members who abstained from voting have no just cause to complain of this result. What followed this election ? Were the proposed amended constitution and revised confession of faith at once declared adopted? No. They, with the vote thereon, were fully and dul}' reported to the General Conference of 1889, and the same were, by that body, with full freedom, duly considered, discussed, voted upon, adopted, and declared as the amended constitution and the revised confession of faith of the Church, and, as ordered by that body, the same were published and proclaimed by the bishops of the Church as its amended constitution and revised confession of faith. Their adoption, etc., was by a vote of 110 delegates for to the vote of 20 delegates against. Now, liere was a positive, express request ^to the General Conference of 1889. Certainly no valid objection can be made 11 to this convenient and proper forvi of request. lUit defendants complain that of the 208,000 niem})ers of the Church only about 54,000 vo