History of the Church of the United Brethren in Christ by Daniel Berger

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History of the Church of the United Brethren in Christ

by Daniel Berger

APPENDIX II

DECISIONS OF THE SUPREME AND CIRCUIT COURTS OF OHIO IN THE PUBLISHING HOUSE SUIT¹

^p.665 DECISION OF THE SUPREME COURT OF OHIO.

No. 3,001. Halleck Floyd et al. v. David L. Rike et al.; Montgomery County. The case has been fully and exhaustively considered in the opinion of the Circuit Court, as announced by Shearer, J., Rike et al. v. Floyd et al, 6 O. C. C. Reports, 80. We fully affirm the reasoning of the Court and the conclusions there rendered. Judgment affirmed. Shauck, J., did not sit in the case.

Under the issues presented by the above-quoted pleadings³ a large amount of testimony, oral and documentary, has been introduced; and without entering into an analysis of the evidence, we, in compliance with the request of counsel, and to enable them to except to the decision upon the questions of law involved in the trial, state our conclusions of fact found, separately from our conclusions of law, as follows:

Findings of Fact.

[ A large number of facts found are here omitted as not necessary ^p.666 to an understanding of the opinion, and as matter well known to the Church.—Ed.]

* * *

It is further found, that since the General Conference of 1889 the doctrine and beliefs preached and taught by both "Liberals" and "Radicals" in no wise differ from those preached and taught by the Church of the United Brethren in Christ prior to said General Conference. All the distinctive principles, ceremonies, usages, and customs have been retained and practiced in the Church by the "Liberals" as fully and strictly as was done before the adoption of the revised Confession and amended Constitution, except that they have admitted to membership in the Church members of secret organizations.

It is further found, that said amended Constitution and Confession of Faith were adopted by the General Conference of the Church, upon the request of the requisite number of the membership, and in good faith; that said revised Confession of Faith is not antagonistic to the doctrines, faith, or belief of the Church as they existed at the date of the several conveyances in the petition mentioned, or since; that there is no substantial or material difference between the old and new Confessions of Faith.

It is further found, that said election of the said plaintiffs as trustees and of said Shuey as publishing agent was had in all respects as required by the rules and regulations of the Church; and that said plaintiffs and said Shuey severally accept the amended Constitution and revised Confession of Faith, and claim to be acting under and in accordance with the same.

Such is our finding of facts. The next inquiry is as to the conclusions of law to be deduced therefrom.

Conclusions of Law.

Much time has been devoted by counsel to the history and legislation of the United Brethren Church from its foundation in the last century, interesting and instructive, but of little value as an aid to the solution of the questions involved in this controversy.

We have found the Constitution of 1841 to be valid organic law from the time of its adoption until May 13, 1889, at which time the change was made the validity of which the defendants challenge. That instrument provides (Article II., Section 4) that "No rule or ordinance shall at any time be passed to change or do away the Confession of Faith as it now stands, nor to destroy the itinerant plan"; and Article IV. ordains that "There shall be no alteration of the foregoing Constitution, unless by request of two-thirds of the whole society."

^p.667 Was there such request? The Constitution is silent as to the method by which this "request" shall be preferred, leaving the Conference to suggest, or the people to adopt, any form of request they may deem proper. The General Conference appointed a Commission to formulate an amended Constitution and a revised Confession of Faith, and provided that such Commission should "adopt and cause to be executed a plan by which such measures should receive the largest possible attention and expression of approval or disapproval by our people," etc.

The largest publicity was given to the pendency of these measures through the official organs of the Church, by pamphlets, from the pulpit, and otherwise, as well as of the time when the vote would be taken. Ballots were prepared and circulated throughout the membership, and every means adopted to secure a full expression of the views of the membership upon the proposed changes.

Following this, after a three years' canvass, came the election, at which an extraordinarily large vote was cast.

In pursuance of the plan of the Conference in that behalf, returns of the vote were made from the annual conferences to the General Board of Tellers, at Dayton, Ohio, and that board in turn prepared and returned to the Board of Bishops a consolidated abstract of the vote, which showed a majority in favor of the amendments largely in excess of two-thirds of the votes polled, even if the 16,187 members protesting, but not voting, were counted as voting "No."

Was not this almost unanimous vote in favor of the proposed amendments a "request"? "Was it necessary that the "request" should proceed from the membership without any suggestion from any quarter that it be made? Why might not the Conference advise or suggest that such "request" be made? No reason occurs to us why it might not, nor why a request so made would be unconstitutional.

The objection on this score is more technical than substantial. The vote was a "request."

But defendants say, conceding said request to be sufficient, the Constitution required it to be by "two-thirds of the whole society."

But what should be the construction of the phrase "two-thirds of the whole society"? Does it mean two-thirds of the entire number borne upon the Church rolls as members ? Or does it mean two-thirds of those voting ?

We do not think the fathers who ordained the Constitution of 1841 intended to follow the example of the Medes and Persians, and fetter future generations for all time, unless two-thirds of all the members—men, women, children, non-communicants, those "beyond sea," African converts, and all—should request the change. Such ^p.668 construction can hardly be insisted upon, in the light of the testimony that the Church was opposed to "numbering Israel" at the time of the adoption of the Constitution of 1841, and for many years afterwards.

The framers of the rule must have meant that two-thirds of those voting should be sufficient; otherwise, how were they to determine that the requisite majority had voted for or against a measure, there being no provision for an enumeration, and the Church being opposed to making one?

We are bound to assume that the rule was made in the light of the fact that enumerations were not favored, and that, therefore, the phrase was used in its generally accepted sense—two-thirds of those voting.

The Constitution of 1837 provided that "No General Conference shall have power to alter or amend the foregoing Constitution, except it be by a vote of two-thirds of that body."

Under this limitation, could not the General Conference, by a vote of two-thirds of a quorum, change the organic law, although strictly the phrase "two-thirds of that body" means two-thirds of all the members of that body? We think so. And so the phrase "two-thirds of the members of the whole society," while it literally signifies two-thirds of all the members of the Church, means, in the sense in which it is used in the Constitution of 1841, two-thirds of those members who vote.

In Carroll County v. Smith, 111 United States, which concerned an election held under a statute of Mississippi, authorizing subscriptions to the capital stock of a railroad company by municipalities upon certain conditions, among which was the submission of the question "to the qualified voters of said county, city, etc., . . . and if two-thirds of the qualified voters vote in favor of the subscription, . . . the constituted authorities . . . are authorized and required to subscribe," etc., Mr. Justice Matthews held that an assenting vote of two-thirds of the whole number enrolled as qualified to vote was not required, but that two-thirds of those actually voting at the election was sufficient.

And in Walker v. Oswald, 68 Md., 146, the Court say : "When an election is held at which a subject matter is to be determined by a majority of the voters entitled to cast ballots thereat, those absenting themselves, and those who, being present, abstain from voting, are considered as acquiescing in the result declared by a majority of those actually voting, even though, in point of fact, but a minority of those entitled to vote really do vote."

See also St. Joseph v. Rogers, 16 Wall., 663; Wardens of Christ Church v. Pope, 8 Gray, 140-43; Richardson v. Society, 58 N. H., 188; ^p.669 Green v. Weller, 32 Miss., 850; Prohib. Amen't Cases, 24 Kans., 200; Dayton v. St. Paul, 22 Minn., 400; Miller v. English, 24 N. J. L., 17; County of Cass v. Johnston, 95 U. S., 360; 72 Ill., 63; 1 Sneed, 690; 10 Minn., 85; 37 Mo., 270; 69 Ind., 505; 20 Amer. Corp. Cases, 93; McCrary on Elections, 173.

But we are not confined to secular authority, for in accord with the above cases is the interpretation of the Constitution by the General Conference, the court of last resort of the Church. That it construed the phrase "whole society" to mean those voting upon the changes, is apparent from the provision in the plan of submission that said changes should be held to be adopted when two-thirds of the members who voted upon them were found to have voted affirmatively. And the approval by the General Conference of 1889 of the report of the Commission which set out the vote upon the changes, is an affirmance of such interpretation.

It being clear that a majority of two-thirds of those voting was sufficient for the adoption of the amended Constitution and the revised Confession of Faith, the next question is, whether the adoption of the latter operated to "change or do away the Confession of Faith" as it stood prior to the revision.

This question must be answered in the negative. Changes have been made, but in no material or substantial respect. They consist in alterations of phraseology without changing the sense, and in the addition of statements of doctrine which have been taught and believed by the Church from its foundation, and which, while not expressed in the old, are comprehended by implication. No new doctrine is introduced, no old dogma or article of faith is eliminated. The revised Confession involves no departure from the faith of the Church as taught from the beginning.

That the old Confession of Faith permitted latitudinarianism, while the new is more explicit and inflexible, is urged as a reason why we should hold that there has been a departure from the standards of the Church, so serious as to destroy its identity.

But, as we have seen, there is no statement of doctrine in the new Confession which has not always been taught and believed by the Church; and as a creed is a mere system of principles professed or believed, we can perceive no impropriety in expressing in orderly form those principles which, although believed and accepted as distinctive doctrine, are not formulated, or, if stated, are crude or equivocal.

If the revised Confession makes no change in the doctrines of the Church, it is not to be condemned for its greater certainty and perspicuity as compared with the creed which it supplants. Obscure and equivocal language may be commendable in a political platform, but should find no place in articles of religious faith.

^p.670 We cannot assent to the claims of counsel that the concession that the new Confession differs from the old involves the admission that the new establishes different doctrine. Mere verbal changes do not necessarily alter the doctrine; neither does the expression in the new Confession of that which is implied in the old have that effect.

One of the defendants, upon his examination, admitted that the doctrines stated in the revised Confession of Faith are not unscriptural, nor antagonistic to the teachings of the Church prior to the separation. Yet it is contended that there have been seven omissions of doctrine—five alterations directly, and others indirectly, and twenty additions. Among the seven "omissions" is the "disciplinary rule against traducing brethren." No knowledge of theology is necessary to understand that rules of polity have no proper place in a creed or confession of faith. The remaining six "omissions" are not apparent from a comparison of the two creeds. The doctrines supposed to be omitted are fairly implied in the new Confession.

Without further illustration, we are clear, as we have already said, that no substantial or material changes have been made in the creed of the Church. The efforts of those learned in theology to bring to light essential differences savor more of the ecclesiastical hair-splitting of the era of polemics and scholasticism, than of these days of advanced thought and practical Christianity.

But if our conclusions in this regard are wrong, is not the decision of the General Conference, the supreme judicatory of the Church, conclusive?

Controversies in the civil courts concerning the property rights of that class of religious societies to which the Church of the United Brethren in Christ belongs, namely, the class having an ascending series of judicatories, such as official boards, quarterly conferences, annual conferences, and a General Conference, are to be decided, where the title is held by purchase, by reference to this proposition: That where the right of property in the civil court is dependent on the question of doctrine, discipline, ecclesiastical law, rule, custom, or church government, and that has been decided by the highest tribunal within the organization to which it has been carried, the civil court will accept that decision as conclusive, and be governed by it in its application to the case before it. Watson v. Jones, 13 Wall., 679, 727.

The doctrine just stated seems to answer affirmatively the question above propounded. This controversy grows out of questions of purely ecclesiastical cognizance; and the General Conference, having jurisdiction by virtue of the request of two-thirds of the whole society, decided them adversely to the defendants, and such decision is final and conclusive. Connitt v. Ref. Prot. Dutch Ch., 54 N. Y., 551; ^p.671 Watkins v. Wilcox, 66 N. Y., 654; Chase v. Cheney, 38 Ill., 511; White Lick Quaker Case, 89 Ind., 136; Harrison v. Hoyle, 24 O. S., 254; 45 Pa. St., 1; 45 Mo., 183; Gaff v. Greet, 88 Ind., 122; Shannon v. Frost, 3 B. Mon., 253; Gibson v. Armstrong, 7 B. Mon., 481; Harmon v. Dreher, 1 Speer's Eq., 87; High on Injunctions, Secs. 310, 314.

It follows, also, from what we have said, that there has been no perversion of the trusts vested in plaintiffs. Such perversion, to entitle the party alleging it to relief, must be clearly shown; it must be a plain and radical departure. See Gable v. Miller, 2 Denio, 492, 548; 66 N. Y., 654; 38 N. H., 460; 33 Ill., 398; 61 Ill., 405; 41 Pa. St., 13.

Other questions have been discussed, but they are not deemed material to the decision of the case.

It follows, and we state as conclusions of law:

That the plaintiffs are the lawful trustees of said Printing Establishment; and that said Shuey is the duly elected and qualified publishing agent of said Church; that said plaintiffs as such trustees are entitled to the possession, management, and control of said real and other property in the petition described, and to have the title thereto quieted in them and their successors, against the said adverse claims of the said defendants and each and every of them.

That said defendants have not, nor has any of them, any right, title, or claim to the possession, management, or control of any of the property aforesaid, as trustees or otherwise, nor to any of the proceeds thereof; and they and their successors ought to be forever restrained and enjoined from in any wise interfering with the plaintiffs as trustees and the said Shuey as publishing agent, or their successors, in the possession, management, and control of said property, or the proceeds thereof.

That said defendants are not, nor is any of them, entitled to any relief sought by them, or any of them, herein, and their several cross-petitions will be dismissed at their costs.

Decree accordingly.

Gunckel & Rowe, and J. A. McMahon, for Plaintiffs.

William Lawrence, George W. Houk, and Young & Young, for Defendants.

¹See p. 391.

²See 6 Ohio Circuit Court Reports, 80.

³The petition of the plaintiffs, the answer and cross-petition of the defendants, and the reply of the plaintiffs precede the opinion, and are here omitted.



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