Ohio. 
 Court of Common Pleas 
 
 Decision of Judge James H, 
 
 Day in the Second Full 
 
 Trial of the c^.se of the 
 
 church of the United 
 
 Brethren in Christ vs. the 
 
 seceders from said church 
 

 
 
 
DECISION 
 
 Ab OO 
 
 n 
 
 VJ 
 
 U 
 
 u 
 
 U 
 
 SECOND FULL TRIAL 
 
 OF THE CASE OF THE 
 
 HURCH OF THE 'United Brethren in Christ 
 
 vs. 
 
 THE SECEDERS FROM SAID CHURCH. 
 
 ./- 
 
 Court of Common plcae, 
 
 VAN WERT, VAN WERT COUNTY, OHIOy 
 January- February, i8go. 
 
 DAYTON, OHIO: 
 
 United Brethren Publishing House, 
 
 1890. 
 
(y 
 
Decision of Judge J. H. Day. 
 
 •J. A. CLAYPOOL AND OTHERS ^ In the Court of 
 
 / Common Pleas 
 
 vs. > of Van Wert Co., 0., 
 
 \ Case No. 8783. 
 
 CHAS. WEYER AND OTHERS. J Bill to Quiet Title. 
 
 J. H. Day, Judge. 
 
 The plaintiffs nameii are J. A. Claypool, H. G. Stemen, 
 D. 0. Krusch, Wilson ^cKenzie, and Charles McKenzie, — the 
 two last named decline* to stand as plaintiffs and have joined 
 in the Yiefense, — are described as trustees of the Delphos 
 Church, of the Delphos Circuit, of the Auglaize Annual Con- 
 ference of the Church of the United Brethren in Christ, 
 claim to be in possession, as such trustees, of certain real 
 €state described in their petition ; that the defendants claim 
 some interest adverse to them, and ask that their title be 
 quieted. 
 
 The defendants claim title and right of possession of the 
 said real estate in themselves, and demand equitable relief 
 touching the matter. 
 
 The real estate in question is in-lot number four hundred 
 and eighty (480) in Kline & Marble's addition to the town 
 of Delphos, Ohio. On this lot is a frame church building, 
 and all of the probable value of $1,500. In August, 1876, 
 this real estate was conveved to trustees named as " the 
 
trustees of the Church of the United Brethren in Christ, 
 and their successors forever, in trust, to be used as a place 
 of worship, for the use of the ministry and membership of 
 the United Brethren in Christ's Church of the United States 
 of North America: subject to the usages and ministerial 
 appointments of said Church, as from time to time authorized 
 and declared by -the General Conference or Assembly of said 
 Church." 
 
 It is a fact, conceded by all parties, that the title to this 
 property is in the general church-organization of the Church 
 of the United Brethren in Christ, and that neither the 
 plaintiffs nor defendants have any right or interest therein, 
 other than as lawful trustees of the local church association 
 at Delphos, Ohio, adhering to that Church. 
 
 There is a schism, or division, in thi's Church. A portion 
 of the membership has seceded, and as a result there are two 
 separate and distinct organizations, both making claim to be 
 the only true and genuine Church of the United Brethren in 
 Christ. These two divisions are known by the designation of 
 "Radicals" and "Liberals." The General Conference of the 
 Church which met at Fostoria, Ohio, in May, 1885, by a very 
 decided majority of all its members, appointed a committee 
 of twenty-seven members, known as the "Church Commis- 
 sion." This committee was charged with the duty to formu- 
 late amendments to the constitution, in particulars indicated 
 by the General Conference ; to revise the confession of faith 
 where revision was needed: but to retain intact, and make 
 no material change in, the doctrines and ideas in the present 
 one ; to take the sense of the people of the Church, ascertain 
 their wishes respecting the formulated revised confession of 
 faith and amendments to the constitution, and report the 
 
 result. 
 
 All this was done, and full report of the proceeding was 
 
made to the bishops and General Conference of the Church 
 assembled at York, Pennsylvania, in Ma}-, 1889. The work of 
 the commission, as to all the proposed amendments and 
 revision, received largely more than two-thirds of all the votes 
 cast by the people, and was approved and adopted b}^ the 
 General Conference by a vote of one hundred and ten yeas, 
 to twenty nays. Proclamation was made by the bishops of 
 the Church, except one, declaring the revised confession of 
 faith and amended constitution approved by the voice of the 
 Church, and proclaiming them the confession of faith and 
 constitution of the Church of the United Brethren in Christ. 
 
 Because of this action of the commission, the people of 
 the Church, the General Conferences of 1885 and 1889, and 
 of the bishops, fifteen of the members of the General Confer- 
 ence of 1889, including one bishop, withdrew from that body, 
 and organized a General Conference of their own at the Park 
 Opera House in York, Pennsylvania. This body of fifteen, 
 at once, after organizing their General Conference, formally 
 declared that the one hundred and ten members of the Gen- 
 eral Conference, and the five or six other delegates who 
 acquiesced in the action of the majority, by their action in 
 reference to the revision and amendments, had formed a new 
 Church, — had in fact seceded from the Church of the United 
 Brethren in Christ, — and declared their seats as members of 
 the General Conference of the Church of 1889 vacant. 
 
 The General Conference, composed of the members and 
 delegates who did not withdraw, also passed a resolution 
 declaring the seats of the withdrawing members vacant, — that 
 said members had seceded, in fact, and were no longer minis- 
 ters or members of the Church of the United Brethren in 
 Christ. The organization that accepts, as valid, the revised 
 confession of faith and the amended constitution, is known as 
 •'" Liberal," and is represented in tliis law-suit by the i)laint- 
 
6 
 
 ifFs, except Wilson and Charles McKenzie ; and the one that 
 refuses to accept as valid, and conform to, the revised and 
 amended order of things, is "Radical," and is represented 
 here by the defendS-nts. 
 
 The foregoing is a brief statement of the facts as they were 
 made manifest from the pleadings, concessions of the parties, 
 and the statement of witnesses. 
 
 The question presented for consideration and decision of 
 the Court is : Which of these contending parties stands for, 
 or represents, the Church of the United Brethren in Christ ? 
 There has been a secession ; which organization is the seceders ? 
 
 As determining this question, it is important to ascertain 
 and know, precisely, what was accomplished by the General 
 Conferences of 1885 and 1889 in the adoption of an amended 
 constitution and a revised confession of faith for the Church. 
 
 Certainly, if the Church, by legitimate methods, in accord- 
 ance with recognized rules prescribed by the supreme author- 
 ity, has fairly accomplished a change in its organic law, or a 
 revision of its creed, making no essential change therein, the 
 rightfulness and validity of such action would be manifest. 
 In such case, the body would only be exercising a right that 
 inheres in it, and it would not, in any sense, lose its identity, 
 or forfeit any of its rights and franchises, nor would its mem- 
 bers who procured, approved, or adhered to the altered or 
 changed condition ; but members who refused to progress 
 with the body, refused to accept and conform to the new 
 order of things, and, instead, adhered to the old, would be 
 obnoxious to a charge of secession. It Avould be otherwise, 
 however, if the action taken was unfair, irregular, and unau- 
 thorized, or, if instead of revision merely, and amendment, 
 a new constitution, a new religion, a new Church, was estab- 
 lished. In such case, those who adopted, approved, and fol- 
 lowed the new, would be the seceders, and those who adhered 
 
to the old organization wonla constitute its legitimate mem- 
 bership and be entitled to <*njoy all its rights and franchises. 
 The effect of secession in such case would be the forfeiture, 
 by the seceding members, of all right to any part of the 
 Church property; and it would make no difference if the 
 seceding members constituted a majority. 
 
 See U O. S., 32. 
 
 ^1 Pa. St., 9. 
 
 17 Withrow (Iowa), 203. 
 
 88 Pa. St., 60. 
 
 The right to amend, to improve, is a natural one, and 
 inheres in every body, whether of a single individual, or a 
 collection of individuals acting together as an associated body, 
 or a body corporate or politic. Ordinarily, in this democratic 
 country, a simple majority — more than one-half — may prop- 
 erly make a desired change. This rule is of universal appli- 
 cation, unless a restrictive one has been adopted. This latter 
 seems to be the situation of the United Brethren Church. 
 
 An instrument called "Constitution," adopted by the Gen- 
 eral Conference of the Church in 1841, Article IV., provides, 
 "There shall be no alteration of the foregoing constitution, 
 unless by request of two-thirds of the whole society." The 
 same instrument, Article II., Section 4, provides, "Xo rule or 
 ordinance shall at any time be passed, to change or do away 
 the confession of faith as it now stands." 
 
 Counsel for plaintiffs claim that the instrument called 
 constitution is not constitution at all, — is in no sense organic, 
 for the reason that it was only adopted by the legislative 
 authority of the Church, which had no authority to make 
 a constitution; that it was never submitted to the people of 
 the Church or approved by them. 
 
 This criticism, doubtless, is deserved ; but, lest it be not so, 
 I prefer, in the disposition of the case under consideration, to 
 
8 
 
 regard it as organic : because, as I think, the General Confer- 
 ence of 1885, which by its committee, or "commission," pro- 
 posed amendments to it ; the people of the Church who voted 
 on the question of amending it, and the General Conference 
 of 1889, which adopted the proposed amendments to it, so 
 recognized and regarded it. Regarding, then, the constitution 
 of 1841 as valid organic law, it follows, perforce, that it can 
 only be amended in accordance with its own terms and pro- 
 visions; that is, "by request of two-thirds of the whole 
 society." 
 
 Has this been done ? The constitution does not stipulate 
 or point out any course of procedure or method by which 
 an alteration or amendment may be accomplished : so any 
 fair method or course is proper ; but only forbids any altera- 
 tion unless "by request of two-thirds of the whole society." 
 
 What did the framers of the constitution mean by "re- 
 quest," and what is meant by "two-thirds of the whole 
 society," in the connection in which they are used? 
 
 The ordinary meaning of the word request, as defined 
 by Webster, is, the expression of a desire to some person 
 for something to be granted or done; "prayer"; the expres- 
 sion of a desire to a superior being. 
 
 Inasmuch as the membership of the Church is itself the 
 superior, and by its collective voice makes the supreme 
 authority of the Church — the General Conference, it would 
 seem that the word "request," in this connection, as coming 
 from the membership, was used unadvisedly, or else in a 
 peculiar and restricted sense. The origin and surroundings 
 of this denomination throw some light, and make this last 
 surmise appear likely. 
 
 This Church at the beginning was German. Up to, and 
 as recently as, 1<S33, its discipline, confession of faith, and 
 other ofhcial documents were printed exclusively in German. 
 
9 
 
 When this constitution was formulated and adopted in 1841, 
 the membership, ministry, and delegates to the General Con- 
 ference were largely German ; probably well learned in their 
 own language, but in English, indifferently so. It is in 
 evidence that the constitution was published both in German 
 and English. It seems likely that the original draft of the 
 constitution was in the German. It is certain that in the 
 German publication the word "request" does not appear at 
 all; but there was used the German word ftimme (stinuiie), 
 or ftimmen (stimnien), which, being correctly rendered into 
 good English, means voice or vote. 
 
 All these considerations, it seems to me, make it probable 
 that there has been a mistranslation of the German word, and 
 an ill-considered and improper use of the word " request." The 
 Article IV. should read, ** unless by the voice, or vote, of two- 
 thirds of the whole society " ; for it is reasonably clear that 
 what was intended was, that before any change should be 
 made, the Conference be satisfied that it was desired by two- 
 thirds of the people composing the society ; in other words, 
 that the constitution be not altered except by the consent, 
 approval, or vote, of two-thirds of the whole society. 
 
 What is two-thirds of the whole society? Defendants 
 claim it is two-thirds of the entire number reported and 
 enrolled as members of the society, including men, women, 
 and children, — for it is in proof that children of eight and 
 ten years of age were received and enrolled as members 
 of this Church, — aggregating more than 200,000; while 
 plaintiffs contend it is two-thirds of all those who vote at 
 an important legal election, the membership having due 
 notice of such election. 
 
 The rule contended for by defendants seems unjust and 
 impracticable, and, if allowed, would have the effect to en- 
 tirely block the wheels of progress, and make it impossible 
 
10 
 
 for the zealous, active, interested, and earnest membership 
 to make needed improvements for the welfare of the associ- 
 ation. 
 
 The General Conference of 1885, the supreme judicial au- 
 thority of the Church, construed Article IV. of the constitu- 
 tion, and held that on submitting the amendments to the 
 people, after due notice, two-thirds of all the members who 
 voted at the election should be held to be two-thirds of the 
 whole society. 
 
 This was a decision of the question of ecclesiastical cog- 
 nizance, by the highest Church judicatory; and under the 
 holding in the case of Watson vs. Jones, 13 Wallace, 679, is 
 final and conclusive, and must be so accepted by the legal 
 tribunals. Especially ought this holding of the General 
 Conference to be regarded as settling the question, when it is 
 known to be correct in principle and in consonance with the 
 holding of the civil courts upon the same question. 
 
 There is not much room for controversy on this question. 
 The principle, as it seems to me, is well settled by a long line 
 of decisions in both the federal and State courts. There are 
 some very respectable and able decisions to the contrary, but 
 the great weight of authority, as I think, holds as did the 
 General Conference, and settles the rule as contended for by 
 the plaintiff^, — that two-thirds of the whole society is two- 
 thirds of all those voting at.an important legal election upon 
 due notice Afj sustaining this view, see particularly, — 
 
 72 Illinois, 63. 
 
 Ill United States, 556 
 
 1 Sweed (Tenn.), 690. 
 
 10 Minn., 85. 
 
 37 Missouri, 270. 
 
 McCrary on Elections, Sec. 173. 
 
 See, also, 16 Wallace, 663-4. 
 
 58 N. H., 188-9. 
 
11 
 
 69 Indiana, 505. 
 
 21 X. J., 317. 
 
 95 U. S., 360. 
 
 20 Am. Corp. Cases, 93. 
 
 If these conclusions are correct, then, applying them to the 
 facts, the result must be obvious. 
 
 The General Conference of 1885, desiring some alterations 
 in the organic law, put in motion proceedings looking to that 
 end, by appointing a committee to formulate the desired 
 amendments, with instructions to submit them to the con- 
 sideration of the membership, to ascertain their wishes touch- 
 ing them, and to report the result. 
 
 The time fixed for taking the sense of the people was 
 in November, 1888, when the people of the Church were 
 also called upon to select delegates to the approaching Gen- 
 eral Conference of 1889. The work of the committee, so far 
 as the amendments were concerned, was completed before 
 January, 1886, and they were at once brought to the attention 
 of the membership. The greatest publicity was given to the 
 matter; and for more than three years before the vote was 
 taken, the proposed alterations and changes were canvassed 
 and discussed. Ministers and laymen everywhere joined in 
 the discussion, and took counsel of each other as to what was 
 best to be done respecting them. 
 
 It is doubtful if there was a single intelligent member of 
 that Church in all this broad land who was not fully ap- 
 prised of what was going forward, and opportunity afforded 
 him to express his wishes — to voice his sentiment — in refer- 
 ence to the subject. Every effort seems to have been put 
 forth to secure a full and fair vote. 
 
 Many who were opposed to any change refrained from 
 voting, but were active and assiduous in circulating written 
 petitions or protests, and securini:!: signatures thereto, request- 
 
12 
 
 ing the Geneieil Conference to make no change in the consti- 
 tution or confession of faith. These protesting brethren 
 might with propriety, and, in the general summing up of the 
 result of the vote, ought, I think, to be considered as voters 
 adverse to the amendments. 
 
 The correct total number of names signed to the protests 
 was 16,187. Under these circumstances the vote was taken, 
 and resulted : 
 
 For the revised confession of faith - _ - 51,070 
 Against, including protestors ----- 19,497 
 
 For the amended constitution . - - . 50,685 
 Against, including protests ----- 19,846 
 
 For lay delegation ------- 48,825 
 
 Against, including protests ----- 21,821 
 
 For section on secret combinations - - - 46,994 
 Against, including protests ----- 23,485 
 
 It will be perceived that the total vote, if we include the 
 protests, was more than 70,000, and that each of the proposi- 
 tions submitted received the endorsement of more than two- 
 thirds of all the votes cast. 
 
 The result of the vote, with the proposed amendments, was 
 reported to the General Conference of 1889, and, as we have 
 seen, was considered and debated by that body, voted upon 
 and adopted by a vote of one hundred and ten delegates for, 
 to twenty delegates against ; was declared and proclaimed by 
 the General Conference and the bishops of the Church as its 
 confession of faith and constitution. The only remaining 
 question is : Has there been a departure from the old faith, 
 or have new and strange doctrines been incorporated in it? 
 Has the revision of the confession of faith, as accomplished, 
 made material and essential changes in the doctrines and 
 beliefs of the Church, so as to, in effect, make a new religion ? 
 I am unable to so find, from the proofs submitted ; indeed, the 
 
13 
 
 great weight of the evidence is to the effect that there has 
 been no such change. 
 
 Change, it is true, has been made, but it has been formal 
 only, and not of substance. The phraseology in some mat- 
 ters is different ; doctrinal matters, essential beliefs held and 
 taught by the Church from the beginning but not incorpo- 
 rated into the formal written confession of faith, have been 
 brought in and made part, — codified, as it were, — but the sen- 
 timent, the idea, has been preserved, so that no new doctrine 
 has been interpolated, and no old one omitted or lost. 
 
 This conclusion has been arrived at, from the consideration 
 of all the evidence submitted, upon the theory that the 
 question was still an open one. But is it ? 
 
 The question is one of creed, belief, doctrine, and is of 
 purely an ecclesiastical cognizance. It has been decided by 
 the General Conference of the Church, which is the supreme 
 judicatory of the Church, adversely to the claim of the defend- 
 ants, and is not its decision upon th'at point, at least, final an<l 
 conclusive ? 
 
 In the leading case of Watson against Jones before referred to, Mr. 
 Justice Miller said : " 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-judi- 
 catories to which the matter has been carried, the legal tribunals must 
 accept such decisions as final, and as binding on them in their apphca- 
 tion to the case before them." This, "upon the theory that the ecclesi- 
 astical courts are the best judges of merely ecclesiastical questions and 
 of all matters which concern the doctrines and discipline of the respect- 
 ive denominations to which they belong." 
 
 See 13 Wallace, 679. 
 
 54 X. Y., 561. 
 
 66 N. Y., 654. 
 
 89 Indiana, 136. 
 
14 
 
 24 O. S., 294. » 
 
 41 Pa. St., 1. 
 
 45 Missouri, 18b. 
 
 58 Illinois, 509. 
 
 The conclusion reached is, that the Church of the United 
 Brethren in Christ, by fair and legitimate methods, and in 
 accordance Avith the forms and requirements of its organic 
 law, has rightfully effected a change in its constitution and 
 revised its confession of faith, and by so doing it has not 
 lost its identity or forfeited any of its rights. 
 
 It follows that those who refuse to adhere to the Church 
 as reformed must be accounted as having seceded, and for- 
 feited all right to the Church property. 
 
 A decree will be entered quieting the title in plaintiffs. 
 
 Remark.— The trial at Van Wert began January 28, 1890. The 
 presentation of testimony, oral and documentary, occupied four full 
 days, closing February 1. The arguments began on Monday, February 
 10, and closed on the 12th, occupying two full days. The decision of 
 the judge was handed in on the 28th of February. 
 
 The witnesses examined included a number of the leading men on 
 both sides, and the testimony was quite full and exhaustive. 
 
 The plaintiffs were represented by Col. I. N. Alexander, of Van Wert, 
 and Hon. J. A. McMahon and Hon. L.. B. Gunckel, of Dayton, Ohio. 
 Mr. Gunckel was not present, but made his pleading in a carefully 
 prepared, printed brief. 
 
 The counsel for the defendants were Hon. Wm. Lawrence, of Belle- 
 fontaine, and Hon. Geo. W. Houk, of Dayton. 
 

Printed 
 In USA 
 
 HIGHSMITH #45230