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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1951
- **Citation:** 340 U.S. 936

## Text

See rrr

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.

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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 .....
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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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

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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-

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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:

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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).

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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-

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0509%3A2. Public record. Not legal advice.