Lowe v. First Presbyterian Church

MR. JUSTICE GOLDENHERSH, dissenting:

I dissent. In reaching the result achieved in its opinion the majority has disregarded sound legal principles established by the earlier decisions of this court, which legal principles were evolved after careful consideration over a substantial period of time and deserve better than the cavalier treatment to which the majority opinion subjects them.

The first controversy over property of a hierarchical-type church to reach this court involved a schism in a Presbyterian congregation and resulted in three opinions being written. (Ferraria v. Vasconcelles, 23 Ill. 403 ; Vasconcellos v. Ferraria, 27 Ill. 237 ; Ferraria v. Vasconcellos, 31 Ill. 25 .) In 1851 the parties to that action left the island of Madeira where they were members of the Free Portuguese Church under the jurisdiction of the Free Presbyterian Church of Scotland, came to Jacksonville, Illinois, and there formed an unincorporated religious body under the name of the Free Portuguese Church. Prior to leaving Madeira they had received the proper certificate of dismissal from the Free Church Presbytery of Glasgow, which had required that they unite with the Presbyterian Church of the United States. In 1852 they purchased a lot, took title in the name of individual members of the church as trustees, and erected a church building. In 1856, with the unanimous consent of the members, they presented their letter of dismissal from the Presbytery of Glasgow and applied for and were received in membership in the Presbytery of Sangamon. In 1858 a schism occurred in the local church as to whether the members would be re-baptized. At a meeting of the members, 105 voted to withdraw from the Sangamon Presbytery and 101 voted against withdrawal. The majority took possession of the church building, the minority filed an action for peaceable possession, and the trial court dismissed the action.

In its first opinion the court applied an implied-trust theory and held that the minority, who had not withdrawn from the Sangamon Presbytery, were the owners of the property. The court said: “The object of the donations of money, the purchase of the property and the erection of the church edifice, was to afford a place of worship according to the usages and principles of the body as then organized, and not according to the usages of some other body.” ( 23 Ill. 403, 409-410 .) The case was remanded for further proceedings, and in the second opinion the court stated that if the local congregation, according to the constitution, government and usages of the Presbyterian Church of the United States of America could withdraw from the presbytery without its consent, then the majority vote of the congregation made it independent of the Sangamon Presbytery. “The evidence in the record as it now appears, seems to establish this fact, and if so, the action of the minority was irregular and unwarranted, and by it they acquired no rights.” ( 27 Ill. 237, 239 .) The cause was remanded for further evidence on the right of a local congregation to withdraw from the presbytery without its consent.

In its third opinion the court ordered the partition of the property, stating: “*** whatever may be the ecclesiastical right of a church, or a portion of a church, to sever its connection with a particular presbytery, with or without its consent, it does not follow, that the majority in so acting, become entitled to the property of the church, to the exclusion of the minority. *** It may with truth be said, that as the majority did not forfeit its right to the property by withdrawing from, so neither did the minority by adhering to, the presbytery. *** The proceeds of the property ought, therefore, to be divided between them, in the proportion which the seceding and adhering members of that congregation bear to each other in point of numbers.” ( 31 Ill. 25, 53 .) The partition theory was again applied in Niccols v. Rugg, 47 Ill. 47 , also involving a schism in a Presbyterian church, in which the court specifically referred to and followed Ferraria v. Vasconcelles.

In Calkins v. Cheney, 92 Ill. 463 , upon which the appellate court principally relied, the plaintiffs contended that under the doctrine of Watson v. Jones, 80 U.S. (13 Wall.) 679 , 20 L. Ed. 666 , or Ferraria v. Vasconcelles, 23 Ill. 403 , in which the implied-trust doctrine was applied to a hierarchical church, they, as the adherents to the tenets of the Protestant Episcopal faith, were entitled to enjoin the defendant from further officiating in the church or occupying the premises. The court did not discuss Watson v. Jones, explicitly refused to find an implied trust, and, after discussing various sections of the religious-corporation statute, stated:

“From these references to the statute, it is clear that the trustees of an incorporated religious society or association do not hold the property, in the absence of a declared, or at least clearly implied trust, for any church in general, nor for the benefit of any peculiar doctrines or tenets of faith and practice in religious matters, but solely for the society or congregation whose officers they are; and that they are not, in the discharge of their duties, subject to the control of any ecclesiastical judicatory.

* * *

The incorporated societies here contemplated are *** civil corporations to be controlled and managed under the general principles of law applicable to such corporations, as administered by the civil courts.” 92 Ill. 463, 476, 477, 478 .

In Dubs v. Egli, 167 Ill. 514 , there was a dispute in the Bethany Church and Society of Highland Park over which of two factions had the right to use the church property. The basis of the controversy is set forth in Schweiker v. Husser, 146 Ill. 399 . When the property in Dubs was purchased, the discipline of the hierarchical denomination provided that all conveyances of land for the erection of a house of worship should provide: “In trust to be occupied, used and maintained as a place of divine worship by the ministry and membership of the Evangelical Association of North America, with power to dispose of and convey the same, subject to the discipline, usages and ministerial appointment of such church or association, as from time to time authorized and declared by the general conference of said association and the annual conference in whose bounds the said premises are situated.” ( 167 Ill. 514, 518 .) The members of the congregation wanted to retain control of the property and took title in three members as trustees of Bethany Church of Highland Park without any express declaration of trust. The congregation was incorporated as a religious corporation. The court said: “This case is thus clearly brought within the doctrine laid down by this court in the case of Calkins v. Cheney, 92 Ill. 463 . It was there held, that property, purchased and conveyed under similar circumstances to those existing here, belongs to the society or congregation in its corporate capacity, not in trust for the benefit of the church at large as a religious denomination, but independent of it, and not subject to the control of any ecclesiastical judicatory. ” 167 Ill. 514, at 519 .

In Illinois Classis of the Reformed Church v. Holben, 286 Ill. 473 , two congregations of the Reformed Church in the United States had withdrawn from that denomination and become members of the Presbyterian Church of the United States of America. These congregations, located at Mt. Zion and Stonington, had comprised the Mt. Zion charge which was under the Illinois Classis of the Reformed Church in the United States. The Mt. Zion congregation took title to the Mt. Zion church property in named members of the congregation as trustees of the Mt. Zion Reformed Church and the Mt. Zion Cemetery Association. The Stonington congregation took title to the Stonington church property in named members of the congregation as trustees for the Mt. Zion charge of the Reformed Church. Neither of the local congregations was incorporated.

Later each congregation met and voted to have its respective consistpry seek a letter of dismissal from the Illinois Classis in order that they might join the Springfield Presbytery. The Illinois Classis determined that it had no authority to grant letters of dismissal. The trustees of the two congregations then conveyed their property to a straw party who conveyed the property, respectively, to the trustees of the Mt. Zion Presbyterian Church and the trustees of the First Presbyterian Church at Stonington. The Illinois Classis then filed an action to quiet title against the trustees of the two congregations. It alleged that the attempt to withdraw from the Reformed Church and join the Presbyterian Church was contrary to the constitution and laws of the Reformed Church and constituted a dissolution of the local congregations, and that uder the constitution and laws of the Reformed Church, when a congregation is dissolved, its property becomes vested in the general body of the church.

Citing Calkins v. Cheney, the court in Illinois Classis stated: “The deeds contain no express declaration of trust for the benefit of the general body of any church denomination or for the teaching or practice of any particular religious principles or doctrines or faith in religious matters. Such deeds are solely fo; the benefit of the congregations whose trustees are named as the grantees, £nd the right to the possession, control, and use of the property is vested solely in them. *** It is immaterial whether the grantees were incorporated or not.” ( 286 Ill. 473, at 476-7 .) In so holding, the court applied a formal-title doctrine rather than the civil-corporation doctrine applied in Calkins v. Cheney and Dubs v. Egli. The formal-title doctrine was again applied in Glader v. Schwinge, 336 Ill. 551 .

The majority’s reliance upon Gonzales v. Roman Catholic Archbishop of Manila, 280 U.S. 1 , 74 L. Ed. 131 , 50 S. Ct. 5 , and First Presbyterian Church v. First Cumberland Presbyterian Church, 245 Ill. 74 , is misplaced. In Gonzales the question presented was whether the petitioner was legally entitled to a collative chaplaincy in the Roman Catholic Archdiocese of Manila. The Supreme Court held that the determination of the petitioner’s fitness for the assignment was a canonical act and the property rights involved were an incident of the office of chaplain. It is clear from the opinion that had the issue presented required interpretation of the terms of the trust, legal principles, and not canon law, would have governed.

In First Presbyterian the court was not called upon to decide a property question. That case reached the court in the posture of the opposing parties contending, on the one hand, that the reunion of the Presbyterian Church and the Cumberland Presbyterian Church effected by their national assemblies was valid, and on the other that it was invalid. Involved in the case was the property of the Cumberland Presbyterian Church in Lincoln. The court said “*** the determination of the question where the title to said church property now rests will necessarily involve a decision of the question whether the reunion of the Cumberland church with the Presbyterian church, as declared by the general assemblies of the two churches in 1906, was valid and binding upon both churches and the members of the said churches and their church judicatories, or whether said reunion was invalid and void.” ( 245 Ill. 74, 81 .) “*** the question whether the reunion between the Cumberland church and the Presbyterian church was a valid reunion was a question for the general assemblies of the two churches to decide, sitting as the highest ecclesiastical judicatories of those churches, and that the general assembly of the Cumberland church, having held the reunion valid and binding upon the Cumberland church, its judgment is binding upon this court ***.” 245 Ill. 74, 119-20 .

This court has stated, explicitly and clearly, the distinction between a controversy which presents a question to be determined under ecclesiastical law and one to be decided under principles of civil law.

In Marie Methodist Episcopal Church v. Trinity Methodist Episcopal Church, 253 Ill. 21, 28 , plaintiffs sought conveyance of certain property, contending, inter alia, that the general conference of the Methodist Church had decided the issue contrary to an earlier decision of the court ( 205 Ill. 601 ) and that the decision of the general conference was binding on the court and the parties. In rejecting the contention the court said, “The judicial power and the authority to adjudicate upon civil and property rights is vested in the courts and is not committed to ecclesiastical tribunals. The courts, however, accept the decisions of the highest tribunals of churches upon questions of faith and doctrine, and where the ownership of property is dependent upon the decision of such a question they will follow the construction of the ecclesiastical tribunal and adjudge the title to the property accordingly. *** The general conference did not determine an ecclesiastical question but decided upon the property rights of the parties to this litigation, and we cannot admit the authority of the general conference to determine such rights.”

The majority has strained to read into this record some implied submission to hierarchical control which would subject the property to the plaintiffs’ control, but recitation of past conduct is of no significance. There is no question here that the congregation, on church matters, subjected itself to hierarchical control, but strain as it might the majority cannot glean from this record the facts necessary to remove this case from the rule of civil law. If the plaintiffs, in addition to the hierarchical control exercised over ecclesiastical matters, desired to control church property, a simple provision in the defendant church’s bylaws or a reversionary clause in the deed by means of which the property was conveyed would have accomplished that result. It did not, however, pursue either course, and this case falls squarely under the doctrine of Calkins v. Cheney.

As the citations in this dissent demonstrate, our predecessors on this court, after careful consideration, have developed and applied the corporate-title doctrine of Calkins v. Cheney and the formal-title doctrine of Illinois Classis v. Holben. These are “sound legal principles of law developed for use in all property disputes” to which the Supreme Court referred in Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449 , 21 L. Ed. 2d 658, 665 , 89 S. Ct. 601, 606 . If there are valid reasons for departing from long-established and clearly enunciated precedents, and none are reflected by either this record or the opinion of the majority, then they should be forthrightly overruled and not circumvented by means of nonexistent distinctions.