Respondents Brief — Melish v. Rector, Church Wardens & Vestrymen of the Church of the Holy Trinity

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Supreme Court of the United States

Ocrosper Term, 1950

No. 469

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Joun Howarp Metisse, WituiAmM Howarp Me .isu, Lewis

Reynoutps, AnNA May Mason and all other persons

similarly situated or whom the same may represent,

Petitioners,

—against—

Tue Recror, CHURCH WARDENS AND VESTRYMEN OF THE

CHURCH OF THE Hoty TRINITY LN THE City OF BROOKLYN,

a religious corporation; Lronarp HuLL Smiru and

RanpbaLt O. WALKER, individually and as Wardens of

said Church; JosepH Dana ALLEN, Haucuton BELL,

Bruce Bromuey, Merritt N. Foorr, Watpo W. SELLEw,

H. Epwarp VoLuMeErRs and Burton H. Wuire, individ-

ually and as Vestrymen of said Church, and James

PerNnetreE DeWo ure as Bishop of the Diocese of Long

Island,

Respondents.

BRIEF OF RESPONDENTS (OTHER THAN JAMES

PERNETTE DE WOLFE) IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

—

ee

THEopoRE Kie™~n.,

Wriusam R. MracHer,

Attorneys for Respondents other

than James Pernette De Wolfe.

te

DUT:

AO AD RE A A

BARRE Nh hala atest tsetse

INDEX

Decisions and Opinions Below ...002..............::..e-eceeeeeeeees

Statement as to Jurisdiction 2.0.0.0... eeee eee eeeeeeeeeeeeee

ES LE TL ee

Proceedings Below After Judgment ............0..00.........-

I. The order of the Court of Appeals dismissing

petitioners’ attempted appeal is not a final

BUN itcriccesssnietiinanleiinindebeinirtcepihbenietndd Aiton

II. Petitioners failed to exhaust the appellate reme-

dies provided by state procedure. ....................---

III. The decision of the Court of Appeals that no

constitutional question was properly raised in

the courts below is conclusive. ............2..-.----:-.-2+-++

IV. The decision of the Court of Appeals that no

constitutional question was properly raised in

the courts below is correct. -................2.-2:..:--e0ee0-e+

V. The so-called “constitutional question” which

petitioners ask this Court to review is unsub-

stantial and frivolous. ....................

ESRI OUT RR cers aes PUD ROT eR

Table of Cases Cited

American Railway Express Company v. Levee, 263

U. 8S. 19, 20, 21

Andrews v. The Virginian Railway Company, 248

Re eet cee eRe aE

PS EIDE SEIS MITES CR SIRAT G8 BS ERIESA, BOERNE NETRA A YORE RSG REE BE at ne

ii

PAGE

Atlantic Coast Line R.R. Co. v. Mims, 242 U. S.

RG OHNE «icc scaccatmcbaiaicaaicabes 8

\

: Bostwick v. Brinkerhoff, 106 U.S. 3, 4 -....-2.22.22..---0-0--0- ' 6

Capital City Dairy Company v. Ohio, 183 U. S. 238,

SPEAR RK Ree A EES nna SeEEN ts SLES OY eRe IE PO OT 10

Congress of Industrial Organizations v. MeAdory, §

325 U. S. 472

Deming v. Carlisle Packing Company, 226 U. 8. 102 13

Erie Railroad Company v. Purdy, 185 U. S. 148,

affirming 162 N. Y. 42 ..... <a

Fe ee SP

Fiske v. Beaty, 206 App. Div. 349, 358, aff’d 238 N. Y.

589 15

Gonzalez v. Roman Catholic Archbishop of Manila,

280 U. S. 1, 16 ei 17

Gorman v. Washington University, 316 U. S. 98,

100 7

Harding v. Illinois, 196 U. S. 78, 85, 86-88 0002... 10

Hartford Life Insurance Company v. Johnson, 249

es Se I ID cies denies 8

—

Oo

Herndon v. Georgia, 295 U. S. 441, 442, 443

Jongebloed v. Erie Railroad Company, 296 N. Y. 912 11

Lynch v. New York, 293 U. S. 52, 54 ..... 11

Matthews v. Huwe, 269 U. S. 262, 265, 266 00000000... 7

Maxwell v. Newbold, 18 How. 511, 516 0000... 10

Messenger v. Mason, 10 Wall. 507, 509 0... 10

PAGER PLE SLED OSES HAIN RSET GEE PRCA —

iii

PAGE

Norfolk & Suburban Turnpike Company v. Common-

wealth of Virginia, 225 U. S. 264, 269 -........-...----------- 6

Saint Nicholas Cathedral v. Kedroff, 302 ey ee ae 14

Sepboard Air Line Railway Company v. Watson,

QB7 U.S. 86, 92 .u.-..-.-eteececececeeeseseeecececesesesenennnenenenenenenens 13

Stratton v. Stratton, 239 U. S. 50... 7

Watson v. Jones, 80 U. S. 679 .....-.-------------e--eseeeeeetetees 17

Western Union Telegraph Company v. Crovo, 220

U. S. B64, 366 2... enenncoeccceeecsneensenenseseesnsensaenssnsesenensens 6

Western Union Telegraph Company v. Priester, 276

U. S. 252, 258 ......n.nec-csececsceeesesceenenseesssnsnsessenensnensenensoseces 6

Wilson v. Cook, 327 U.S. 474, 480-481 .........-------.---------+ 10

Statutes Cited

Civil Practice Act:

Section 588, subd. 1(&) ~..--.-.---------s:-ceseceseeeeteseeeseeeeeees 2,5

Section 589 ........-..--c-cccscceccecesececseeseneensceenenseneneesneneesenes 5

Section 592, subd. 5(D) (ii) --.---------------------eseeeeeeetetsee 5, 7

Judicial Code, 28 U. S. Code:

Section 1257 (3) -..-..--.----ss-s-s-cseseeeeseseseseesneceeetenees 2, 6, 7, 8, 12

Religious Corporations Law .........------------------ 14, 15, 16

Section 4 .....-.--c-c-cseceeceeceeceseeseesensensseenecensensesenenseseenersensnans 15

Section 5 ....-.-c-c-c-ccecececceceseceeeessseesetesneensnsananesennsnsnensnnensanes 15

tN I cs ceciiecensanihinnsenbnrianeclmnecmeiton 15

—— PERM NET PRAM URE REN NNR IEE PTD IE ER TERIA NY

a

IN THE

Supreme Court of the United States

Octoser Term, 1950

A

No. 469

—~>

JouN Howarp Me.iso, Wittiam Howarp Me.isu, Lewis

Reynotps, ANNA May Mason and all other persons

similarly situated or whom the same may represent,

Petitioners,

—against—

THe Rector, CHurcH WaRDENS AND VESTRYMEN OF THE

CHURCH OF THE HoLy TRINITY IN THE Crty oF BrookLyn,

a religious corporation; Lreonarp Hutit Smiru and

Ranpaty O. Waker, individually and as Wardens of

said Church; JosepH Dana ALLEN, HauGHTon BELL,

Bruce Bromuey, Merritt N. Foorr, Waupo W. SELLEw,

H. Epwarp VoutiMers and Burton H. Wuire, individ-

ually and as Vestrymen of said Church, and James

Prrnette DeWo re as Bishop of the Diocese of Long

Island,

Respondents.

—<--

BRIEF OF RESPONDENTS (OTHER THAN JAMES

PERNETTE DE WOLFE) IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Decisions and Opinions Below

Judgment in favor of respondents was entered (R. 136-

140) upon the decision of the Supreme Court of the State

of New York, County of Kings (R. 482-499) reported at

194 Mise. 1006.

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2

The Appellate Division unanimously affirmed without

opinion in a memorandum (R. 556) reported at 276 App.

Div. 1008. Petitioners’ motions in the Appellate Division

for reargument, or in the alternative, for permission to

appeal to the Court of Appeals, were denied in a memo-

randum reported at 277 App. Div. 783.

Petitioners thereafter appealed to the Court of Appeals

without any permission (R. 549-550), presumably on the

theory that there was “directly involved the construction

of the constitution of the state or of the United States”

(New York Civil Practice Act, Section 588, subd. 1(a)).

The appeal was dismissed on respondents’ motions by a

unanimous Court of Appeals (R. 591) in a memorandum

reported at 301 N. Y. 679:

“Motions granted and appeal dismissed, with costs

and $10 costs of motions, upon the ground that no

constitutional question was properly raised in the

courts below. (See Matter of O’Neill v. Board of

Regents, 298 N. Y. 777; Jongebloed v. Erie R. R. Co.,

296 N. Y. 912; City of New Rochelle v. Closter, 296

N. Y. 506.)”

Statement as to Jurisdiction

Petitioners pray that a writ of certiorari issue to review

the decision of the Court of Appeals dismissing their at-

tempted appeal (Petition, p. 1). Jurisdiction to issue the

writ is invoked under 28 U. S. Code, Section 1257(3)

(Petition, p. 13).

Respondents submit that the petition should be denied

(1) for want of jurisdiction and (2) for want of a sub-

stantial federal question (pp. 6-17, infra).

Statement of the Case

Petitioner John Howard Melish was until April 4, 1949

Rector of the Church of the Holy Trinity within the Epis-

copal Diocese of Long Island of which respondent James

Pernette DeWolfe is Bishop. His son, petitioner William

Howard Melish, was Assistant Minister of the Church. Re-

spondents other than the Bishop were, at the commence-

ment of this action, nine of eleven members of its Vestry.

Petitioners Lewis Reynolds and Anna May Mason are

Chairman and Co-Chairman respectively of a so-called

“(Committee to Retain our Rector”.

When the Rector was ordained he took a vow according

to the Book of Common Prayer:

The Bishop: “Will you reverently obey your Bishop,

and other Chief Ministers who, according to the Canons

of the Church may have the charge and government

over you; following with a glad mind and will their

godly admonitions and submitting yourself to their

godly judgments?”

The Answer: “I will do so, the Lord being my

helper.” (Ex. 4, R. 150, not printed.)

On March 2, 1949 in proceedings initiated by the Vestry

(Ex. 17, R. 155, printed at R. 508) and after hearings be-

fore the Standing Committee of the Diocese, at which peti-

tioners appeared personally and by counsel (Ex. H, R. 176,

not printed), the Bishop adjudged that the pastoral rela-

tions between the Church and the Rector should terminate

on April 4, 1949 (Ex. 9, R. 152, printed at R. 44-45).

The Bishop’s judgment was rendered in the exercise of

jurisdiction conferred by Canon 27 of the Diocese of Long

Island making him “ultimate arbiter and judge” in this

precise kind of situation (R. 71-73).

-—

Renee

ie Pah ARAMA MED Set LOTT

4

The Bishop found, on evidence before the Standing Com-

mittee, “dissension in the Parish * * * due to the failure

of the Rector to bring about the resignation or removal of

the Assistant Minister’, whose activities “have been most

detrimental to the welfare not only of the Parish but also

the Church in the Diocese and nation” (R. 33-34).

The Standing Committee found, and the Bishop ap-

proved the finding, that these activities comprised mem-

bership in and association with Communistic or pro-Com-

munistic organizations “standing for principles inecom-

patible with the Christian faith” (Ex. 7, R. 34-36). These

activities were approved by the Rector (R. 36). By Gen-

eral Canon 45 of the Episcopal Church the Rector had sole

and exclusive authority to end the Assistant Minister’s

tenure (Ex. 2, R. 149, not printed).

The Rector refused to obey the Bishop’s judgment. He

purported to call a special parish meeting for March 7,

1949 (Ex. 12, R. 153, printed at R. 51-54) at which “charges”

were preferred against the nine respondent members of

the Vestry who had voted to commence the proceedings

before the Bishop (Ex. 12, R. 51-53). On these so-called

“charges” they purportedly were removed from office (Ex.

N, R. 423, printed at R. 73-83). Thereupon the Rector

purported to call for March 14, 1949 another special parish

meeting to elect their suecessors (R. 61).

Thus threatened with imminent, illegal deprivation of

office, the nine respondent members of the Vestry com-

menced this action and were awarded judgment.

The judgment, in so far as appealed from, (1) declares

that John Howard Melish ceased to be Rector on April 4,

1949—the date fixed by the Bishop’s decision; (2) perma-

nently enjoins petitioners from interfering with execution

of the Bishop’s judgment; (3) permanently enjoins the

Rector from acting as such and from use, as Rector, of

a Bonk! Sea srt ke Re spp EME agp I

As

5

the Church properties; and (4) dismisses petitioners’ coun-

terclaims and cross-claims which sought, in materia! part,

(a) dismissal of the complaint and the Bishop’s counter-

claim; (b) a declaration that the Bishop’s judgment is

illegal; and (c) a permanent injunction against its enforce-

ment (R. 69-70, 102-103, 133).

Proceedings Below After Judgment

The judgment having been affirmed by the Appellate

Division, petitioners applied in that court for permission

to appeal to the Court of Appeals. That very application

indicated that the petitioners themselves were then un-

aware of the existence of any constitutional question which

would have entitled them to appeal to the Court of Appeals

as of right (Civil Practice Act, Section 588, subd. 1(a) ;

compare Section 589).

It was only after the Appellate Division had denied

leave to appeal to the Court of Appeals (277 App. Div.

783) that petitioners appealed to the Court of Appeals

as of right (R. 449-550).

After the Court of Appeals had dismissed their appeal

(301 N. Y. 679), petitioners could have applied to the Court

I of Appeals within thirty days thereafter for permission

to appeal to that court (Civil Practice Act, Section 592,

subd. 5(b)(ii)). However they elected to proceed as if the

dismissal were a final judgment reviewable in this Court

by writ of certiorari but, as we later demonstrate, in the

: very face of compelling authority to the contrary (pp.

i 6-7, infra).

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I.

The order of the Court of Appeals dismissing peti-

tioners’ attempted appeal is not a final judgment.

The order of the Court of Appeals dismissing petitioners’

attempted appeal is not a “final” judgment within the

meaning of 28 U. S. Code, Section 1257(3). It is not a

decision on the merits of the constitutional question al-

legedly raised (Petition, p. 2). It is merely a holding that,

as no constitutional question had been properly raised in

the lower courts, the appeal taken “as of right” to the

- Court of Appeals had to be dismissed.

As the order of dismissal is not a judgment “which dis-

in alae ets” Pea hah Soa

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4 poses of the whole case on its merits, it is not final”: “a

: judgment or decree to be final, within the meaning of that

term as used in the acts of Congress giving this Court

2 jurisdiction on appeals and writs of error, must terminate

the litigation between the parties on the merits of the case”.

a Bostwick v. Brinkerhoff, 106 U. S. 3, 4 (1882). See also:

ee He he bey Ras %

SRR Mea

Western Union Telegraph Company vy. Priester,

276 U.S. 252, 258 (1928) ;

Norfolk & Suburban Turnpike Company vy. Com-

monwealth of Virginia, 225 U.S. 264, 269 (1912);

Western Union Telegraph Company v. Crovo, 220

U. S. 364, 366 (1911).

7

Petitioners failed to exhaust the appellate remedies

provided by state procedure.

Petitioners’ failure to apply to the Court of Appeals

for leave to appeal to that court, after dismissal of their

attempted appeal taken “as of right” (Civil Practice Act,

Section 592, subd. 5(b) (ii)), precludes issuance of a writ

of certiorari. It is the purpose of the Judiciary Act

“that no decision of a state court should be brought here

for review either by appeal or certiorari until the pos-

sibilities afforded by state procedure for its review by all

state tribunals have been exhausted. Fisher v. Perkins,

122 U. S. 522; McComb v. Commissioners, 91 U. 8. 1, 2;

McMaster v. Gould, 276 U. S. 284; Southern Electric Co. v.

Stoddard, 269 U. 8. 186; Stratton v. Stratton, 239 U.S. 55;

Mullen v. Western Union Beef Co., 173 U. S. 116; Great

Western Telegraph Co. v. Burnham, 162 U. S. 339.” Gor-

man v. Washington University, 316 U. S. 98, 100 (1942).

Even were the petition considered as one for a writ to

the Appellate Division to review its judgment of affirm-

ance, jurisdiction would not exist to issue the writ. The

petitioners nevertheless could have applied to the Court

of Appeals for leave to appeal to that court after dis-

missal of their appeal taken “as of right”, and the judg-

ment of the Appellate Division could not become final

within the meaning of Judicial Code, Section 1257(3)

until such application had been made and denied. See:

Stratton v. Stratton, 239 U. S. 55 (1915);

Matthews v. Huwe, 269 U. S. 262, 265, 266 (1925) ;

Andrews v. The Virginian Railway Company,

248 U. S. 272 (1918) ;

American Railway Express Company v. Levee,

263 U. S. 19, 20, 21 (1923).

Ill.

The decision of the Court of Appeals that no constitu-

tional question was properly raised in the courts below

is conclusive.

This Court will accept as conclusive the decision of the

Court of Appeals that “no constitutional question was

properly raised in the courts below”. Judicial Code,

Section 1257(3) requires that the claim of constitutional

right be “especially set up” in the state courts. “This

means that the claim must be asserted at the proper time

and in the proper manner by pleading, motion or other

appropriate action under the state system of pleading

and practice, Mutual Life Insurance Co. v. McGrew, 188

U. S. 291, 308, and upon the question whether or not such

a claim has been so asserted the decision of the state court

is binding upon this Court, when it is clear, as it is in

this case, that such decision is not rendered in a spirit

of evasion for the purpose of defeating the claim of

federal right. Central Vermont Railway Co. v. White,

238 U. 8. 507; John, Guardian, v. Paullin, 231 U. S. 583;

Erie R. R. Co. v. Purdy, 185 U. S. 148; Layton v. Missouri,

187 U. S. 356.” Atlantic Coast Line R. R. Co. v. Mims,

242 U. S. 532, 535 (1916).

No suggestion is or could be made that the holding of

the Court of Appeals in this case was framed to evade

consideration of the federal right now asserted. See Hart-

ford Life Insurance Company v. Johnson, 249 U. S. 490,

493 (1919).

SSAC DY RADNER PU IIS EI RIRD PMR GS. ONG TR RAHN HOR MINER LEME EAL A ORE OD

9

IV.

The decision of the Court of Appeals that no constitu-

tional question was properly raised in the courts below

is correct.

Kiven if the decision of the Court of Appeals were not

conclusive, its holding that no constitutional question was

properly raised in the lower courts is demonstrably cor-

rect according to the decisions of this Court and of the

Court of Appeals.

Petitioners claim that they “pleaded as a defense the

facts which form the basis of the question upon which

review is sought” in their answers to the complaint, as

follows (Petition, pp. 4-5, R. 101-102):

“31. Canon 27 of the Diocese of Long Island (See

Paragraph ‘Twentieth’ hereof and Exhibit 1) provides

the sole remedy for neglect or refusal on the part of

the Congregation to comply with a judgment of the

Bishop rendered thereunder and that such sole remedy

is to deprive the Congregation of a representative to

the diocesan convention until they submit.

32. The Congregation refuses to comply with the

purported judginent of the defendant Bishop.

~ * * * *

34. A civil Court, therefore, has no power to grant

any other, further or different relief in the premises.”

These allegations did not present, or even purport to

present, any constitutional question. They were simply a

plea that a particular ecclesiastical remedy was exclusive.

They were not a plea that the exercise of civil jurisdiction

by the trial court would be unconstitutional, nor that the

exercise of such jurisdiction would violate any of peti-

DT gS LLORES BO RIRE SS ISB LENT OPER EES LLL GAL TEN LIL ENE LANL LIISA RES STE EEL EES AL SE LOM ENE OE

Speer alin

10

tioners’ constitutional rights. See Wilson v. Cook, 327

U. S. 474, 480-481 (1946).

This Court has held that an attack upon a State statute

as violative “of the constitution of the United States” is

too general to raise a federal constitutional question.

Herndon v. Georgia, 295 U.S. 441, 442, 443 (1935), citing

Maxwell v. Newbold, 18 How. 511, 516 (1855) ; Messenger v.

Mason, 10 Wall. 507, 509 (1870); Capital City Dairy Com-

pany v. Ohio, 183 U. S. 238, 248 (1902) ; Harding v. Illinois,

196 U. S. 78, 85, 86-88 (1904). A fortiori the instant plead-

ing which makes no mention of the constitution, is in-

sufficient. ;

The rule of pleading obtaining in the State of New York

and approved by this Court, requires specific reference to

the clause of the constitution relied upon in assertion of a

constitutional right. Erie Railroad Company v. Purdy,

185 U. S. 148 (1902), affirming 162 N. Y. 42. There is no

such reference here.

The learned opinion of the trial court (R. 482-499, 194

Mise. 1006) contains internal evidence that no constitu-

tional question was presented or passed upon; for al-

though the issues of law and of fact are there considered

with meticulous care, the decision is entirely devoid of

statement or intimation that constitutional questions were

presented or that constitutional rights are involved.

Indeed, the inference is warranted that petitioners not

only deliberately refrained from asserting the claim that

exercise of jurisdiction by the trial court would infringe

their constitutional rights, but they foreclosed themselves

from so doing by taking precisely the opposite position.

For, in their pleadings they then and there invoked that

very jurisdiction by the demand in their counterclaims

(R. 70, 103) for judicial declaration that the Bishop’s

judgment was illegal and for a permanent injunction

EE

11

against its enforcement. The belated assertion of constitu-

tional right is an obvious afterthought.

Petitioners say that the constitutional privilege of re-

ligious freedom was asserted in the brief of petitioners

Reynolds and Mason in the Appellate Division. A single

sentence is relied upon as asserting the constitutional

right. The brief, after repeating the contention made in

the trial court that the ecclesiastical remedy of Canon 27

for disobedience of the Bishop’s judgment is exclusive,

commented that the trial court, in holding that the Bishop’s

judgment was conclusive, had said that the constitution

“has secured religious liberty from the invasion of the

civil authority”. Petitioners then added—and this is the

sentence upon which they rely as raising a constitutional

question—“A grosser invasion of religious liberty is diffi-

cult to imagine” (Petition pp. 14-15).

Even under the liberal practice prevailing in the State

of New York which permits the Court of Appeals to review

a constitutional question if properly presented to the Ap-

pellate Division and necessarily involved in its decision

(Jongebloed v. Erie Railroad Company, 296 N. Y. 912

(1947)), this fleeting and superficial commentary upon the

reasoning of the trial court, contained in an isolated sen-

tence in the brief of the petitioners Mason and Reynolds,

but not in the brief of the petitioners Melish, falls far short

of meeting the requirement that a constitutional question

must be clearly and distinctly presented in the state courts

before this Court may review by certiorari. Indeed, this

Court has said that a claim of jurisdiction may not be sus-

tained “by reference to briefs and statements which are not

part of the record.” Lynch v. New York, 293 U. S. 52, 54

(1934).

Petitioners Melish did not take the position in the Ap-

pellate Division that the constitutional privilege of freedom

12

of religion barred the civil courts from exercising jurisdic-

tion. To the contrary, they argued that there is a remedy

provided by the Canons of the Protestant Episcopal Church

for a rector’s disobedience of his bishop’s judgment, i.e.

an ecclesiastical trial for divestment of his priesthood; and

that until this remedy had been exhausted in the instant

‘ease there was no right of resort to the civil courts (R. p.

583). It was, of course, the inevitable implication of this

argument that after the ecclesiastical remedy had been re-

sorted to and the disobedient rector deprived of his priest-

- hood, resort to the civil courts could then be had to restrain

him from continuing occupancy of chureh property. In

short, in their brief in the Appellate Division petitioners

Melish construed the allegations of their answer filed with

the trial court as a claim, not that resort to the civil courts

was unconstitutional, but only that it was premature.

Petitioners Melish are no longer represented by counsel

who advanced this argument on their behalf. Their position

has changed with their change of lawyers. They now con-

tend that the civil courts do not, and never will, have con-

stitutional power to exercise jurisdiction in the case at bar.

Clearly, this was not their contention in the courts below.

No constitutional question having been raised in the

State courts, as required by Judicial Code Section 1257 (3),

this Court is without jurisdiction to issue a writ of cer-

tiorari as prayed for in the petition.

13

Vv.

The so-called “constitutional question” which peti-

tioners ask this Court to review is unsubstantial and

frivolous.

Finally, even were we to assume that the constitutional]

question which petitioners ask this Court to review was

properly presented below (Petition, p. 2), the question is

so unsubstantial, and indeed frivolous, as not to merit re-

view by this Court. Seaboard Air Line Railway Company

v. Watson, 287 U.S. 86, 92 (1932) ; Deming v. Carlisle Pack-

ing Company, 226 U. S. 102 (1912) ; Congress of Industrial

Organizations v. McAdory, 325 U. S. 472 (1945).

Petitioners have abandoned their contention below that

the Bishop’s judgment is not in accord with the Canons of

the Church and is illegal. They now necessarily concede

that the judgment of the Bishop dissolving the pastoral re-

lations is canonically correct and legally conclusive. By the

same token, they cannot deny that their refusal to obey the

Bishop’s judgment is wrongful.

Nevertheless, they contend that the constitutional guar-

anty of freedom of religion protects the deposed Rector in

his continued occupancy of the rectory and in his continued

participation, as a member of the Vestry and trustee of the

Church, in the management of its temporal and corporate

affairs. They must necessarily contend that this same con-

stitutional guaranty precludes the courts, whether at the

suit of the Bishop, or the Congregation, or the Vestry,

from granting any relief whatever against misuse of church

property by one who has become a usurper. Petitioners

claim that the only remedies available in this situation are

ecclesiastical remedies; that the courts may not intervene,

although their intervention is obviously indispensable for

the protection of the Church against the misuse of its

temporalities and property; that the intervention of the

ERIE TRE Oe NI LE RG ois ¥ as) a a A Saul 7 . ‘3 os

14

courts below constitutes a violation of the constitutional

guaranty of freedom of religion and the American princi-

ple of separation of church and state.

If petitioners are correct in this contention, the courts

would be constitutionally powerless to prevent this Rector

and a section of his Congregation from transforming this

Protestant Episcopal Church into a Roman Catholic Church

or a Jewish Synagogue or a Shinto Temple, simply be-

cause, so petitioners claim, ecclesiastical remedies are ex-

clusive. A mere statement of this proposition reveals its

utter absurdity.

Prior to the enactment by the New York Legislature of

the Religious Corporations Law in 1875, “the majority of

the members of a religious corporation could change its

denominational character and devote the church property

to an entirely different religious faith than that for which

it was originally dedicated. (Robertson v. Bullions, 11

N. Y. 248, 263-264; Petty v. Tooker, 21 N. Y. 267; Gram v.

Evangelical Lutheran Soc., 36 N. Y. 161.) For the public

good, the Legislature decreed that the trustees of religious

corporations, irrespective of the wishes of the majority of

the local congregation, must administer the temporalities

in accordance with the discipline, rules and usages of the

ecclesiastical body, if any, to which the corporation was

subject. (Religious Corporations Law, §5.)” Saint Nicholas

Cathedral v. Kedroff, 302 N. Y. 1 (1950).

Petitioners’ present contention overlooks completely the

fact that the respondent church is not only a religious

society but a religious corporation organized and existing

by virtue of the Religious Corporations Law of the State

of New York. Their contention is also founded upon a

completely erroneous misconception of the nature of the

judgment entered below. While the judgment does enforce

the decree of the Bishop, it does so only incidentally, and

| 15

it enforces primarily the provisions of the Religious Cor-

porations Law, particularly Sections 4, 5 and 41.

Section 4 provides that “all the temporalities and prop-

erty of an unincorporated church, or of any unincorporated

religious society, body, association or congregation, shall,

on the incorporation thereof, become the temporali-

ties and property of such corporation.***” Section 5

requires “trustees of every religious corporation” to ad-

minister “all the temporalities and property * * * belonging

to the corporation * * * in accordance with the discipline,

rules and usages of the corporation and of the ecclesiastical

governing body, if any, to which the corporation is subject

** *”. Section 41 provides that the duly elected church-

wardens and vestrymen of a Protestant Episcopal Church,

such as the plaintiff religious corporation, “together with

the rector, * * * shall * * * be the trustees of such church

* * & 7

The religious society in accordance with the usages and

rules of which the property of this religious corporation

must be administered, is the Protestant Episcopal Church

in the United States of America. “It is contrary to the

general canons of that church and the canons of the diocese

*** that the pulpit of an Episcopal church be occupied by

a rector not duly elected and instituted, or that its rectory

should be possessed by him.” Fiske v. Beaty, 206 App. Div.

349, 358 (1923), affirmed 238 N. Y. 589.

It follows that the courts below, in declaring that peti-

tioner John Howard Melish ceased to be Rector on April

4, 1949 and in enjoining him from thereafter acting as a cor-

porate trustee and occupying or administering the cor-

porate property, simply enforced the foregoing provisions

of the Religious Corporations Law of the State, which it is

not only their right, but their constitutional duty to do.

If, by so doing, they incidentally gave force to the Bishop’s

judgment, this is only because the discipline, rules and

usages of the Protestant Episcopal Church, upon which

16

the Bishop’s judgment is based, have been incorporated

into and made a part of the Religious Corporations Law of

the State.

Since petitioners do not now contend, and have never con-

tended, that the applicable provisions of the Religious

Corporations Law are unconstitutional, their enforcement

by the courts below was not and cannot be a deprivation of

petitioners’ constitutional rights.

All other considerations apart, petitioners’ claim that

the judgment of the trial court was unconstitutional be-

cause the ecclesiastical remedy is “exclusive” is plainly

without merit or substance.

Canon 27 of the Diocese of Long Island, in accordance

with which the Bishop rendered his judgment, appears at

R. 71-73. Petitioner John Howard Melish in his letter to

the Bishop (Defendant’s Ex. A, R. 532) himself described

this Canon as granting “extraordinary and absolute power”

to the Bishop.

After providing in substance that if a vestry requests a

dissolution of the pastoral relation the Bishop “shall be the

ultimate arbiter and judge” in the matter, the Canon goes

on to provide (R. 72-73) :

“Dissolution of the relationship.

Sec. IV. (1) If the final judgment be a recommenda-

tion that the pastoral relation be dissolved and that

titles be relinquished by the Clergyman and he shall

refuse to comply with the same within 30 days after

the decision has been made known to him, the Bishop

may declare the canonical dissolution of all connection

between the parties.

Penalty for failure to comply.

(2) And if the Vestry or Congregation refuse or

neglect to comply on their part with such decision or

17

judgment, the Church or Congregation shall be pro-

hibited from a representation in Diocesan Convention

until they submit thereto.”

By wrenching the last quoted sentence out of its context,

petitioners now make the extraordinary argument that be-

cause the Canon provides that a disobedient congregation

may be punished by denial of representation in the Dio-

cesan Convention, therefore a disobedient rector apparently

cannot be touched by any civil court. This is a perfect non-

sequitur. The preceding sentence (Sec. IV (1)) makes it

plain that the Bishop can declare the “canonical dissolu-

tion” of the pastoral relation; and under well settled princi-

ples of law, the Bishop’s decision in this regard is not sub-

ject to reexamination on the merits by a civil court. Watson

v. Jones, 80 U. S. 679 (1871); Gonzalez v. Roman Catholic

Archbishop of Manila, 280 U. S. 1, 16 (1929).

How the ecclesiastical penalty directed by Section IV (2)

against the congregation becomes a constitutional bar

under the First Amendment to any civil action against an

ex-rector who persists in occupying a position from which

he has been lawfully removed is beyond our comprehension.

CONCLUSION

The petition should be denied. |

Dated: New York, N. Y.

January 24, 1951.

Respectfully submitted,

THeEOpoRE KiEnpt,

Wittum R. Meacuer,

Attorneys for Respondents other

than James Pernette De Wolfe.

S89 a a ee as ee RT eet CET al aad dalek ek a a