Philomath College v. Wyatt, 31 P. 206

31 P. 206 | Or. | 1893

Lead Opinion

Opinion of

Mr. Justice Moore.

The plaintiff relies mainly upon three points to sustain the decree of the court below: First, that because the constitution of eighteen hundred and forty-one had never been submitted to or adopted by any vote of the membership of the church, it was not the unalterable law of the church; second, that the amendment of the constitution and the revision of the confession of faith were regularly made and legally adopted; third, that the revision of the confession of faith did not materially alter, change, or modify any principle or doctrine in which the church believed, and did not add anything to or take anything from the creed of the church.

1. The Church of the United Brethren in Christ is a. voluntary, unincorporated religious society. “The validity and binding effect of the constitution or a bylaw or other proceeding of a voluntary association, as respects its members, rests upon assent, actual or implied. The relation between the members of such associations is one of contract, and the articles of association and bylaws constitute the terms of the agreement”: Protchett v. Schaeffer, 11 Phila. 166. “The members having agreed to these terms, are bound by them, if they do not conflict with law or public policy”: Hyde v. Woods, 2 Sawy. 655. “Individuals who form themselves together into a voluntary association for a common object, agree to be governed by such rules as they think proper to adopt, if there is nothing in them in conflict with the law of the land; and those who become members of the body are presumed to know them, to have assented to them, and they are bound by them”: Innes v. Wylie, 1 Car. and K. 260. The members who have joined this church since May, eighteen hundred and forty-one, are presumed to know the contents of the constitution of that year, have assented thereto, and are bound thereby. To them it is as binding as if the constitution had been submitted to and voted upon at an election duly called for that purpose. They were not bound by its provisions till they became members of the church. The constitution is a part of the contract to which they assented; it is the bond of union between them and the church. There has been a personal assent on their part to its provisions, and to them it is the constitution of the church. The members who had joined prior to May, eighteen hundred and forty-one, by remaining therein, are bound by the constitution of that year; they have by their acts personally assented to its provisions. “If a member wishes to dissent from a rule lawfully adopted, and to escape being bound by it, he must procure its repeal or withdraw from the society. If, knowing what the rule is, he remains in the society, he is bound, however loudly he may protest against such rule ”: White v. Brownell, 2 Daly, 329. No effort was made to amend or repeal the constitution till eighteen hundred and eighty-five. Prior to that year all members of the church had assented to the provisions of the constitution of eighteen hundred and forty-one.

2. The opinion of the church and general conferences from eighteen hundred and forty-one to eighteen hundred and eighty-nine is entitled to much weight in determining the character of this instrument. • The general conference of eighteen hundred and thirty-seven framed a constitution, and, doubting its ability to adopt such, ordered its secretary to issue a circular to the members of the church notifying them that at the next general conference a memorial would be presented praying the ratification of the constitution thus framed. The circular was published in the discipline of that year, and distributed among the members of the church. Eminating, as it did, from the highest legislative and ecclesiastical body of the church, the members must have taken notice of it. The next general conference met in Ohio, May tenth, eighteen hundred and forty-one. It did not ratify the constitution adopted by the preceding conference, but adopted another, changing in some particulars the one so framed in eighteen hundred and thirty-seven. The delegates to this general conference were, by the vote of the members, empowered to ratify or reject the constitution of eighteen hundred and thirty-seven. They had met in constitutional convention, were empowered with more than legislative functions, had come directly from the people comprising the church, knew their wants, represented the members in their sovereign capacity, and, as such constitutional and conventional delegates, adopted the constitution of eighteen hundred and forty-one. It would be too narrow a construction to say that they had no delegated power to frame and adopt a different constitution from that of eighteen hundred and thirty-seven, or to amend the one so framed.

3. The members of the church have in all their legislation recognized the constitution of eighteen hundred and forty-one as the organic law of the church. The general conference of eighteen hundred and eighty-five adopted the report of committee number six, which says: “It is the sense and belief of your committee that the constitution as it stands is not in harmony with the present wishes of our people.” And again: “Whereas it is desirable and needful to so amend and improve our present constitution as to adapt its provisions more fully to the wants and conditions of the church in this and future time; therefore, resolved, that a commission be appointed, ” etc. The general conference at York, Pennsylvania, in eighteen hundred and eighty-nine, declared that they passed from under the old, and legislated under the amended, constitution. The written instrument adopted by the church in eighteen hundred and forty-one as its constitution has been treated as its fundamental organic law and constitution by the church and by its general conference from the time of its adoption until eighteen hundred and eighty-nine. It was published every four years in the discipline of the church as its organic law and constitution. The constitution of eighteen hundred and forty-one is now more than twenty years old, has been acted upon as genuine by persons having an interest in the question, and, under the rules of evidence of this state, must be held to be genuine: 1 Hill’s Code, p. 587.^* Hence we conclude the constitution of eighteen hundred and forty-one was what it purported to be, the organic law and constitution of the church.

4. Were the amendment of the constitution and the revision of the confession of faith regularly made and legally adopted? Article IV of the constitution of eighteen hundred and forty-one provided that “There shall be no alteration of the foregoing constitution unless by request of two thirds of the whole society.” This constitution contained the foregoing negative clause, but did not provide whether the amendment should be made by the general conference or by a convention duly called for that purpose. “There are two methods of effecting amendments thus far devised: First, that by the agency of conventions; and, second, that by the agency of our general assemblies, without conventions, both regularly followed by a ratification by the people”: Jameson on Constitutional Conventions, § 530. In Collier v. Friersom 24 Ala. 109, Goldthwait, J., says: “We entertain no doubt that to change the constitution in any other mode than by a convention, every requisition which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment. We scarcely deem any argument is necessary to enforce this proposition.” This opinion was sustained in State ex rel. Hudd v. Timme, 54 Wis. 318, and in Koehler v. Hill, 60 Iowa, 543. In each of these states the constitution provided both methods of amendment. Bach state chose the legislative method in attempting an amendment, and the courts held in each instance that when the legislative method was adopted, every prerequisite must be faithfully observed. The same rule applies to voluntary associations: Hochreiter’s Appeal, 93 Pa. St. 479. The general conference of eighteen hundred and eighty-five did not' call a constitutional convention. It appointed a commission to frame an amended constitution and a revised confession of faith. The. commissioners were agents of the general conference, and their acts, within the scope of their authority, were the acts of the, general conference of that year. The method adopted, then, was by the agency of the general conference without a convention, and its acts, to be legal, must comply with all the requirements of the constitution. Before the general conference could have acquired jurisdiction to amend the constitution, in the manner adopted, there must have been a request of two thirds of the whole society. A “reqgiest” is defined by Webster to be “the act of asking .for anything desired.” All the members of the church desiring a change in the constitution may ask for it, and two thirds of the whole society must ask for it before the change can be granted. The constitution is silent as to the time and manner of making the request. It does not provide that it shall be by petition or other act by the members of the society, nor by their duly elected delegates to the general conference when in session. The interpretation of this clause of the constitution must be determined by the general conference. It is true the question was not one of faith and discipline, but it was the interpretation of ecclesiastical law, the highest law by which the church was governed, its constitution. Section 1 of article IY of the constitution of eighteen hundred and thirty-seven provided that ‘ ‘ If, at any time after passing of this constitution, it should be contemplated either to alter or to amend the same, it shall be the privilege of any member in society to publish such contemplation at least three months before the election of delegates to the general conference.” The general conference of eighteen hundred and forty-one, no doubt realizing the many alterations and amendments which would probably be suggested under the foregoing section, changed the same so as' to make it necessary for two thirds of the whole society to request, a change before it could be granted. It would seem, then, that the general conference of eighteen hundred and forty-one intended the word “request” to mean just what it purported, and that this request must precede any action looking to a change in the constitution.

5. Was any such request made to the general conference of eighteen hundred and eighty-five? The general conference of that year was composed of one hundred and seventeen members and five bishops. Assuming that each delegate represented an equal number of the members of the church, and also assuming that the vote upon the report of committee number six was a request to the general conference, we find that four bishops and seventy-four delegates voted for, one bishop and forty-one delegates against, the proposition. This would not be the necessary two thirds of the whole society. The number of members reported to the general conference of eighteen hundred and eighty-five was one hundred and sixty-six thousand three hundred and twenty-three. -If it could be said that the delegates to this conference were authorized to make the request for the members of the church, and the vote upon the said report could be taken as the request of the number of persons represented by each delegate, the following number of members from the several conferences could then be counted as requesting an amendment to the constitution: Allegheny, seven thousand three hundred and sixty-five; Arkansas Valley, one thousand five hundred and thirty-six; Central Ohio, three thousand nine hundred and sixty-one; East German, five thousand three hundred and sixty-five; Illinois, two thousand four hundred and forty; Iowa, two thousand two hundred and eighty; Minnesota, nine hundred and ninety-six; Osage, one thousand eight hundred and fifty-nine; Parkersburg, seven thousand eight hundred and eighty-two; Pennsylvania, thirteen thousand two hundred and forty-six; Sandusky, six thousand nine hundred and seventy-seven; Sciota, six thousand four hundred and forty-three; Southwest Missouri, seven hundred and ninety; Upper Wabash, five thousand four hundred and sixty-nine; West Kansas, one thousand three hundred and sixty-three; West Nebraska, eight hundred and twenty-nine. The following conferences, by their delegates, cast a fractional vote in favor of the said report, and that fraction of the membership is equal to the following: California, three hundred and seventy-nine; Dakota, two hundred and twenty-three; East Des Moines, eight hundred and sixty-nine; East Nebraska, nine hundred and ninety-six; Elkhorn, two hundred and forty-eight; Erie, two thousand one hundred and seventy; Pox River, one hundred and fifty-eight; Indiana, one thousand nine hundred and seventy-four; Kansas, one thousand two hundred and fifty-nine; Lower Wabash, three thousand six hundred and eighty-two; Muskingum, two thousand nine hundred and fifty; Ohio, German, nine hundred and- sixty-three; St. Joseph, five thousand two hundred - and fifty-eight; Tennessee, four hundred and eighty-eight; Virginia, two thousand two hundred and forty-three; West Des Moines, two thousand one hundred and twenty-two; and Western Reserve, one thousand nine hundred and sixty-five, making a total of one hundred and four thousand one hundred and sixty, and then lacking six thousand seven hundred and twenty-two of the necessary two thirds of the whole society. Based upon the last method, it is also true that one third of the whole society did not vote against the report of the said committee.

6. Plaintiff claims that the votes had upon the adoption of the amended constitution is a “request.” When the general conference of eighteen hundred and eighty-five adopted the report of committee number six, it considered the finding of that committee, “that the general conference has a right to institute measures looking to the amendment, modification, or change of the constitution at any time when it is believed that a majority of our people favor a modification thereof,” to be the law of the case, and that it precluded the necessity of any request at all. That general conference believed that a majority of the members of the church favored an amendment of the constitution, and therefore appointed the commission to prepare the proposed amendments. One of the resolutions found in the report of committee number six contained the following: “That when, according to the foregoing provisions, the result of the vote of the church shows that two thirds of all the votes cast have been given in approval of the proposed confession of faith and constitution, it shall be the duty of the bishops to publish and proclaim said result through the official organs of the church. Whereupon the confession of faith and constitution thus ratified and adopted shall become the fundamental belief and organic law of this church.” It will appear from the foregoing that the vote of the members was upon approval of the proposed amendments, and was not a “request” to the general conference of eighteen hundred and eighty-nine for their adoption. It became the duty of the bishops to make the proclamation and publish the same when the result showed that two thirds of all the votes cast had been given in approval of the proposed amendments. The requirement was for the bishops to perform a purely ministerial act. It was the0 intention of the general conference of eighteen hundred and eighty-five that the amended constitution should be brought into existence by the vote of the members of the church. It was to be their act that should give it life, their vote that should give it birth. It then became the duty of the bishops to declare the result of the vote; to issue the certificate of election; to name the offspring of the constitution of eighteen hundred and forty-one.

What, then, remained for the general conference of eighteen hundred and eighty-nine to do in the matter? It appeared from the returns of the canvassing board that more than two thirds of all the votes polled had been cast in favor of the proposed amendments. What more was required than the proclamation of the bishops? The commission, without any authority whatever from the general conference, and in violation of the express provisions of their warrant, changed the time, and provided that the amended constitution should be in force from and after the first Monday after the second Thursday of May, eighteen hundred and eighty-nine, upon official proclamation thereof by the board of bishops, thus attempting to render any proclamation of the bishops, prior to that date, unnecessary. On the tenth day of May, eighteen hundred and eighty-nine, the commissioners who were appointed by the general conference of eighteen hundred and eighty-five, made a report to the general conference of their proceedings under their appointment, which was, upon motion, referred to a special committee of seven members. Five members of this special committee on the next day made a report to the conference, in which it was resolved, among other things, “That the recorded proceedings of the commission, including the revised confession of faith and amended constitution, as formulated and submitted to the vote of the church, together with the methods of submission and all other acts by which the will of the church was ascertained thereon, are hereby approved and confirmed”; ‘ ‘ that it is hereby published and declared by this conference, for itself, that the said revised confession of faith and amended constitution, as framed and submitted by the lawfully constituted commission of the church, are become the fundamental belief and organic law of the Church of the United Brethren in Christ, and will be in full force and effect on and after the thirteenth day of May, in the year of our Lord, one thousand eight hundred and eighty-nine, upon the proclamation of the bishops, as provided and ordered in said amended constitution.” This report was, upon motion, adopted by the general conference, and the board of bishops, on the thirteenth day of May, eighteen hundred and eighty-nine, issued the proclamation.

7. Plaintiff further claims that the number of votes cast for and against the measure are to be presumed to be the whole number of members of the church, and in support of this proposition cites McCrary on Elections, §183: “Where a statute requires a question to be decided, or an officer to be chosen, by the votes of ‘ a majority of the voters of a county,’ this does not require that a majority of all persons in the county entitled to vote shall actually vote affirmatively, but only that the result shall be decided by the majority of votes cast; provided, always, that there is a fair election and an equal opportunity for all to participate. In such a case, the only proper test of the number of persons entitled to vote is the result of the election as determined by the ballot-box, and the courts will not go outside of that to inquire •whether there were other persons entitled to vote who would not do so. The ‘voters of a county,’ referred to by all such statutes, are necessarily the voters who vote at the election, since the result in each case must be by a count of the ballots cast. This doctrine is well settled by authorities. ” This rule, however, can apply only to elections authorized by law. If the general conference of eighteen hundred and eighty-five had no authority to call the election, then the rule does not apply to this case; and, assuming the vote to have been a request, nothing short of a vote of two thirds of the whole society could have given the general conference of eighteen hundred and eighty-nine any jurisdiction in the matter. If the election was not authorized by law, then it was merely voluntary, and no member opposed to the amended constitution and revised confession of faith need vote upon the question, as only votes cast in favor of the proposition could be counted, and then of no effect unless two thirds of the whole society, as reported to the general conference, voted in favor of the measure. “It is only when an election is authorized by law that the electors, who represent the state or whole people, are bound to attend, and, if they do not, can be bound by the expression of those who do attend”: Wells v. Bain, 75 Pa. St. 47 (15 Am. Rep. 563). In Braden v. Stumph, 16 Lea (Tenn.), 581, it was held, upon a bill filed in chancery, that “the fact that two thirds of the qualified voters did consent by voting may be shown by proof.” This question grew out of the following constitutional provision: “No part of a county shall be taken off to form a new county, or part thereof, without the consent of two thirds of the qualified voters in such part taken off. ” It was further held that the word “consent,” as used therein, means “the active concurrence of the voters, and not a passive acquiescence,” and that “two thirds of the qualified voters must actually vote for the change.” There appears to be a distinction made as to whether the vote is provided for in the constitution or only by statute. If the former, then the whole number voting at the election are to be counted, whether they vote upon the particular matter in question or not; but, on the other hand, it appears to be equally well settled that when a vote is taken under a statutory enactment, without a constitutional provision, the consent of those not voting will be presumed: State ex rel. v. Grace, 20 Or. 160. The most that can be claimed for a constitutional amendment, under an election authorized by law, is that it would be impracticable to determine the number of voters in any other way than by taking the number actually voting as prima facie evidence of that fact: People v. Garner, 47 Ill. 246. The evidence shows that the enrolled membership of the church in eighteen hundred and eighty-eight, at the time the vote was taken upon the adoption of the amended constitution, was two hundred and four thousand five hundred and seventeen; this enrollment having been made by the preachers of the church under a disciplinary law, and reported to the general conference.

8. It is doubtless true that the constitution of eighteen hundred and forty-one was a limitation and not a grant of power, and, since the calling of an election by the general conference was not prohibited, did it have the power to call such an election when the constitution provided that no alteration should be made except upon the request of two thirds of the whole society? In other words, was it an election authorized by law? Could the general conference do by indirection what it could not do directly? One of the rules of construction of constitutions is “that when the constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases”: Cooley on Constitutional Limitations (5th ed.), 78. The constitution of eighteen hundred and forty-one defined the circumstances under which it might be changed, viz., upon the request of two thirds of the whole society. This specification, then, was an implied prohibition against the general conference adding to or substracting from the conditions. The general conference, doubtless, could have called a legal election upon every question except such as was directly or by implication prohibited in the constitution. The calling of an election to vote upon the amended constitution, when two thirds of the whole society requested the same, was impliedly granted. It is true it was not directly prohibited from calling such an election without this request, but it was impliedly prohibited from doing so. Such an election would not be authorized by law.

9. It follows from the foregoing that the election was not authorized by law because no request had been made therefor, and the vote at such election was voluntary; that said vote was not a “request” to the general conference of eighteen hundred and eighty-nine, because two thirds of the whole society had not joined therein, and because the vote was had upon the adoption of the amended constitution, and not for the purpose of making a request; and that the “request” demanded in the constitution means an active concurrence of the members, and not a passive acquiescence.

10. Plaintiff claims that the general conference is the highest judicature of the church, and that its conclusion upon the adoption of the report of the special committee in eighteen hundred and eighty-nine was clearly an ecclesiastical question within its jurisdiction, and therefore binding upon the civil courts. That the general conference of this church is the highest judicature therein, we think there can be but little question. In speaking of those religious societies that exercise supreme judicature over the members of the church, Mr. Justice Miller, in Watson v. Jones, 80 U. S. (13 Wall.), 679, says: “In this class of cases we think the rule of action which should govern civil courts, founded in a broad and sound view of the relation of church and state under our system of laws, and supported by a preponderating weight of judicial authority, is that whenever questions of discipline, or of faith, or of ecclesiastical rule, custom, or law have been decided by the highest of these church judicatures to which the matter has been carried, the legal tribunals must accept such decision as final, and as binding on them in their application to the case before them.” In Shannon v. Frost, 3 B. Mon. 253, the court of Kentucky says: “This court, having no ecclesiastical jurisdiction, cannot revise or question ordinary acts of church discipline or excision. Our only judicial power in the case arises from the conflicting claims of the parties to the church property and the use of it. And this we must decide as we do all other controversies brought to this tribunal for ultimate decision. We cannot decide who ought to be members of the church, nor whether the excommunicated have been justly or unjustly, regularly or irregularly, cut off from the body of this church.” This was a case where the society of an independent Baptist Church, by a majority vote, expelled certain members without trial or hearing. The court further says: “They were expelled for alleged nonconformity, and contumacy adjudged against them, without a formal trial or hearing, by a dominant majority as fallible, perhaps, as themselves; self-doomed to the uncontrolled will of a majority of a church selected by themselves, they can obtain no redress in this forum. If their sentence be unjust, the only appeal is to the omniscient judge of all.” The case of Chase v. Cheney, 58 Ill. 509, (11 Am. Rep. 95,) was a suit brought by the defendant to enjoin the plaintiffs from proceeding to try him for entertaining views not in conformity with the doctrine of his church. The court in this case says: “This case may be briefly summed up. A rector in the church is charged with nonconformity to its doctrines, — intentional omissions in the ministration of its ordinances, — and the attempt is made to organize a court, composed of his brother clergymen, for his trial. He appeals to the ¡civil court, and alleges as the chief reason for interposition the want of authority in the special court to try him, and a misconstruction of the canons. The same point was made to that court and its power denied. It was urged with the same earnestness and enforced with the same arguments there as here. The court overruled the objections, and decided it had jurisdiction. Five intelligent clergymen in the church, presumed to be deeply versed in biblical and canonical lore, were more competent than this court to decide the peculiar question raised. Why should we review that and not every other decision which involves the interpretation of the canons? It is conceded that when jurisdiction attaches the judgment of the church court is conclusive as to purely ecclesiastical offenses. It would be equally conclusive upon doubtful and technical questions, involving a criticism of the canons, even though they might comprise jurisdictional facts.” In Robertson v. Bullions, 9 Barb. 64, the court held that it was bound by the action of the synod, and would not decide whether the minister had been rightfully deposed or not.

The case of State v. Farris, 45 Mo. 183, was a quo warranto proceeding to test the legality of the election of a trustee. The charter of a college provided that vacancies in the board of trustees should be filled by the presbytery, which was, “in connection with the general assembly of the Presbyterian Church in the United States of America, styled ‘old’ school.” The general assembly had some years before passed resolutions enjoining loyalty to the government, approving the emancipation proclamation, and denouncing slavery, and had given instructions to the proper authorities that if any of the ministers or members had been actively engaged in the Rebellion, or held the views of the Southern Presbyterian Church, they should be required to repent and forsake their sins. Some Presbyterians, in consequence of this action of the assembly, adopted and published what was called, “A declaration and testimony against the erroneous and heretical doctrines and practices which have obtained and been propagated in the Presbyterian Church of the United States during the last five years.” They further denounced the action of the assembly, and declared an intention to refuse to be governed by such action, and invited cooperation in a concerted resistance to the usurpation of authority by the assembly. The assembly in turn denounced “the declaration and testimony,” and declared that every presbytery that refused to obey its orders should be ipso faeto dissolved, and called to answer before the next general assembly; and in case a presbytery did not so answer, it was to be dissolved, and the ministers and elders who adhered to the general assembly were to constitute the presbytery. A presbytery was found to contain among its members one or more of the signers of the “declaration and testimony,” and was upon motion declared to be dissolved. The party which adhered to the general assembly was recognized by that body to be the legal presbytery; the “declaration and testimony” party formed another presbytery, claimed recognition from the assembly, which was refused, and elected trustees of the college.1 It was held that this so-called presbytery had no right to elect trustees; that the action of the general assembly in passing these resolutions, and deciding that the “declaration and testimony ” party did not constitute a legal presbytery, could not be questioned in the civil court. The court says: “Whether the ‘declaration and testimony’ signers were regularly or irregularly before the assembly was for it alone to determine. The utter impolicy of the civil courts attempting to interfere in determining matters which have been passed upon in church tribunals, arising out of ecclesiastical concerns, is apparent.” An almost unbroken line of authorities holds that, upon any violation of the articles of faith or rule of discipline, or other law, custom, or usage of the church, the judgment of the church court is binding upon the members so offending, and will not be reviewed by the civil courts.

The benefit of the society to the member, in consideration of his obedience to its rules, customs, and usages, constitutes the contract of membership. He assumes these obligations voluntarily, and agrees to be bound by them. If he disobey these rules, he also agrees to abide by the church’s judgment. Shall the courts make for him another or different contract? All they can do is to interpret the contract he has made. The severest penalty such societies can enforce is excommunication. This, however, should be according to the prescribed rules of the society. He should be charged with the offense, have notice of the time and place of hearing, be permitted to offer evidence, and make his defense. This would be a trial, and the judgment, if not appealed from to some higher judicature of the same society, would be conclusive as to him, and binding upon the civil courts. Nor would the courts inquire into the mode of procedure of these church trials, upon the presumption that such tribunals were the best judges of their own rules. These conclusions have been reached by the civil courts upon trials and judgments had by the society; trials in which there were two or more parties (the society against the member,) an issue to be disposed of, and a conclusion to be reached by the society after due consideration. The question to determine then, is whether the action of the general conference of eighteen hundred and eighty-nine, upon the adoption of the report of this special committee, was legislative or judicial in its character. If it was an adjudication, and did not involve any question of life, liberty, or property, then no question can be raised as to its jurisdiction; if legislative, then null and void as being in conflict with the constitution of eighteen hundred and forty-one, for lack of the necessary request. That this is a question of ecclesiastical law, within the meaning of the rule laid down by Mr. Justice Miller in Watson v. Jones, 80 U. S. (13 Wall.), 679, we think there can be no doubt.

In the cases above cited upon this proposition all the questions were before the church courts to be adjudicated. They were trials. This church exercises legislative as well as judicial authority. What are the tests for determining whether the action of the conference was an adjudication or legislation? The business of the legislature is to make general laws for the public good; that of judicial tribunals, to make specific settlements of private disputes. One establishes laws for future action, and is prospective; the other applies established laws to past actions, and is retrospective in its operation. The law is made by one and applied by the other. Applying this distinction to the acts of the conference, it would appear that it was intended for the future public good of the society. It was a rule of action for future conduct. It was not applying the law to past actions. It was not á conclusion and judgment for past offenses. It was not a punishment for a violation of any rule of faith or discipline. It was not a conclusion that any ecclesiastical law, custom, or usage of the church had been disobeyed. Nor was it retrospective in its operation. The general conference of eighteen hundred and eighty-five, in raising the commission and prescribing its duties, was legislating in the interest of the future welfare of the church. It was doing nothing more at the session of eighteen hundred and eighty-nine, when the acts of the commission were approved. The general conference of eighteen hundred and eighty-nine could not do by legislation retrospectively what it could not do directly. “It cannot make good retrospectively acts or contracts which it had and could have no power to permit or sanction in advance”: Cooley on Constitutional Limitations (5th ed.), 471. While it is true that a member agrees to be bound by the rules of the society, and that the majority may expel him for any violation thereof, is it not true that a part of his contract of membership is that the majority will be bound by its rules also? Has not the minority some rights which the majority are bound to respect? And has not the minority a right to believe that the majority will be governed by its highest law, the constitution? Such legislation, if sanctioned, would impair the contract of membership. To reach any other conclusion would be to assume that the constitution of a voluntary society was binding only on the minority; that the majority were under no legal obligations to obey its terms, and could alter it at any time without pursuing the mode prescribed in the instrument itself; that the majority could declare white was black, in defiance of the terms of the constitution, and it was so, and the minority had no remedy except to withdraw from the society.

The conclusion reached in the foregoing precludes the necessity of any consideration of the revised confession of faith, as to whether or not there was any change therein, or as to whether the same was properly or improperly made. Therefore the decree of the court below is reversed, the injunction dissolved, and the bill dismissed.

Judge Bean having participated in the trial in the court below, did not sit in this case.

[37 Pac. 1022; 26 L. R. A. 85.]

Opinion of

Mr. Justice Wolyerton.

It is unfortunate that it should become necessary in any case to call into requisition the courts of civil jurisdiction to determine and settle controversies arising within the pale of the church, and it is peculiarly so in the present instance, wherein the judicial mind has not been able, after years of litigation, to uniformly and satisfactorily solve the questions involved, or to apply to facts touching the controversy such a clear and indubitable rule of law as will result in conviction to those in interest, fix the exact status of the contending elements in the church, and forever set at rest the title to the immense amount of property involved. The constitution of the United States has guaranteed to the people thereof both civil and religious liberty. This guaranty extends as well to the encroachments of the state or civil government upon the rights, privileges, and immunities of the church, as of the church upon those of the state. It has brought about an entire and distinct separation of church and state, and is in con sonance with, a free and enlightened statehood. But, as was said in Watson v. Jones, 80 U. S. (13 Wall.), 713, by Miller, J.: “Much as such dissensions among the members of a religious society should be regretted, a regret which is increased when, passing from the control of the judicial and legislative bodies of the entire organization to which the society belongs, an appeal is made to the secular authority, — the courts, when so called on, must perform their functions as in other cases.” The Church of the United Brethren in Christ is a voluntary unincorporated religious association, having a written confession of faith, constitution, and book of discipline. The government of the church is exercised through a series of judicatories, known as the official board, quarterly, annual, and general conference, which latter meets quadrennially, and is the highest legislative and judicial body of the church. The plaintiff is a corporation, duly incorporated under the general laws of this state, and its object “was and is to acquire and hold property in trust for said church,” to build and maintain an institution for educational purposes, to be carried on under the direction and control of trustees to be appointed from time to time by the Oregon annual conference, which, like all other annual conferences of the church, is subject to the general conference. So that the trustees appointed by the annual conference are but agents through whom the property in question is held for the use and benefit of the church. At the general conference held at York, Pennsylvania, in May, eighteen hundred and eighty-nine, a revised confession of faith and constitution was adopted. Fifteen members of that conference, feeling aggrieved at the manner in which said revised confession of faith and constitution was adopted, withdrew, and met at another place in the same city of York, and there organized another conference; rejected, as not binding upon them, the revised confession of faith and constitution; and, claiming to act under the old confession of faith and constitution, transacted such business as was brought before them. Since that date there have been two general conferences, the defendant trustees being appointed under the authority of the conference claiming to act under the old confession of faith and constitution, and the plaintiff being represented by trustees appointed under the authority of the general conference maintaining the revision. So that the question to be decided is, which of these two general conferences is the real conference of the Church of the United Brethren in Christ.

11. The real question, therefore, involved in this case is one of identity. Whatever other questions arise dur-. ing the course of its examination are merely incidental and secondary. Did the adoption of the revised confession of faith and constitution by the conference at York, waiving the question for the present whether adopted in strict accord with the then recognized constitution or not, change or destroy the identity of the church? If it did, the defendant trustees are the rightful representatives of the church and of the plaintiff corporation, as they are commissioned by the conference acting under the recognized confession of faith and constitution thereof. If it did not, then the action of those.who withdrew from the regularly called and constituted conference at York, against the wishes of the majority, and organized another general conference distinct and apart from the one so regularly called and constituted, is without authority and void. In the very nature of the form of government of the society it can have but one general conference. “The title to church property of a divided congregation is in that part of it which is acting in harmony with its own law; and the ecclesiastical laws, usages, customs, and principles which were accepted among them before the dispute began are the standards in determining which party is right”: 1 Waterman on Corporations, (8th ed.), § 19. Or, as was said in McGinnis v. Watson, 41 Pa. St. 20: “It seems very plain that we must judge these people and their acts relative to this dispute by the ecclesiastical laws, usages, customs, and principles which were accepted among themselves before the dispute began, and ascertain which party is right, tried by that standard.” This case is cited with approval in First Presbyterian Church of Louisville v. Wilson, 14 Bush (Ky.), 278, and the language of the .syllabus thereof' adopted by the court. See also Niblack on Mutual Benefit Societies, § 158. “Courts of law will inquire which party or which division adheres to the form of church government * * * This rule * * * necessitates an inquiry into the constitution and discipline of the church * * * to enable the court to discover which of the contending parties adheres to the order”: Lectures on Relation of Civil Law to Church Polity by Justice Strong, (45 and 59,) cited in brief of William Lawrence. In First Presbyterian Church of Louisville v. Watson, 14 Bush (Ky.), 278, the court, speaking through Coper, J., says: “It thus appears that a Presbyterian congregation or particular church is a body of professing Christians and their children, governed by congregational, presbyterial, and synodical assembles; and consequently there can be no such thing as a Presbyterian congregation or church not having a church session, and not being in connection with and governed by a presbytery and synod. Connection with and subjection to the recognized presbyterial system of government is as essential to constitute a Presbyterian church or congregation as belief in the West minster confession of faith. Faith and government are alike and equally necessary to constitute a Presbyterian church, and a church having no other than a congregational government, although adopting the Presbyterian creed, is no more a Presbyterian church than a congregation governed by the presbyterial system, and adopting the thirty-nine articles of faith of the Episcopal Church.” Thus, it will be seen that church identity, when disputes arise, depends not alone upon its peculiar creed and dogmas, but also upon the constitution and form of government, discipline, usages, customs, and principles maintained by it prior to the dispute or divis: ion. The scope, therefore, of investigation, for the purpose of discovering or fixing the identity of the genuine conference, comprehends all these necessary elements. Measured by this standard, the identity of the Church of the United Brethren in Christ, and its general conference, in the present case, must be ascertained and determined by reference to its confession of faith or fundamental doctrines, constitutional or fundamental law, book of discipline, and its usages and customs prior to the division of the church at York, Pennsylvania.

12. I shall first consider whether there has been a change in the confession of faith or fundamental doctrine of the church. When I speak of a change, I mean one that is material and vital to the established tenets and doctrines of the church, as it is not every trivial transmutation of phraseology, or every addition to the so-called confession of faith, eo nomine, where taken or transposed from the discipline to that particular instrument, that will destroy church identity. I cannot see how the dogmas of the church are changed or destroyed by transferring doctrine previously contained in the discipline to the confession of faith, or viee versa. The fundamental belief remains the same. For instance, if justification and sanctification are doctrines to which all members of the church must subscribe before they can become such, how can it become important whether they are contained in the confession of faith, eo nomine, or in the discipline? There must be a radical change of faith or doctrine: Lutheran Congregation of Pine Hill Trustees v. St. Miehael’s Evangelical Church, 48 Pa. St. 21; Fadness v. Braunborg, 73 Wis. 292. I shall now advert to some of the alleged changes which it is claimed have been made in the confession of faith. It is a solemn matter to invade the domain of religious beliefs and dogmas, to explore doctrine, and decide intangible metaphysical questions pertaining to the godhead; and courts have a delicacy in entering upon this field of investigation, and will not do so unless it is necessary for the purpose of determining questions of civil or property rights. If these matters have been determined by the proper church judicatories, the civil courts will accept such decisions as final, and will not look into or disturb them. It is said that there have been added to the confession of faith articles declaring a belief in “depravity,” “justification,” “regeneration and adoption,” “sanctification,” and “endless punishment.” If it be admitted that such is the case,, it does not follow that these are new doctrines or dogmas adopted and sanctioned by the general conference for the first time, and I think no such claim has ever been made by that portion of the church membership known as “Radicals.” Turning to the book of discipline of eighteen hundred and thirty-seven, section 7, it will be seen that every person desiring license to preach is required to state his “knowledge of faith, of repentance, of justification, sanctification, and redemption, ” and every book of discipline issued from that date to this contains the same requirement. As touching the doctrine of depravity, a resolution was adopted in eighteen hundred and fifty-three, by a vote of twenty-three to nineteen, defining th.8 sama The book of discipline of eighteen hundred and sixty-one requires a person desiring to be received as a preacher to answer in the affirmative the following question: “Do you believe that man, abstract, of the grace of our Lord Jesus Christ, is fallen from original righteousness, and is not only entirely destitute of holiness, but is inclined to evil, and only evil, and that continually, and that except man be born again he cannot see the kingdom of God?” This requirement, with slight change in phraseology, is continued in every book of discipline issued since that date. The book of discipline of eighteen hundred and seventy-seven requires the following question to be propounded to an elder preparatory to his ordination: “Do you believe in future everlasting punishment?” This is continued in the later publications of the discipline. The course of reading and study prescribed by the discipline for many years last past for licentiate preachers, and upon which they are required to be examined, touching “Bible doctrine,’’ comprises “human depravity, the atonement, redemption, repentance, justification by faith, regeneration, adoption,” etc. So that, in the usages and customs of the church, and by the discipline, the doctrines promulgated touching all these articles of faith have been repeatedly and continuously recognized and sanctioned by the church. This society has for many years past been committed to each and all these articles of faith or church dogmas which it is now claimed are destructive of the church by reason of having been added to the articles of faith, eo nomine.

13. The rule is quite uniform that whenever questions of discipline, or of faith, or ecclesiastical rule, custom, or law, have been decided by the highest church judicatories, such decisions are accepted by the legal tribunals as final: Watson v. Jones, 80 U. S. (13 Wall.), 727; German Reformed Church v. Commonwealth, 3 Pa. St. 291; MeGinnis v. Watson, 41 Pa. St. 21; State v. Farris, 45 Mo. 184; Robertson v. Bullions, 9 Barb. 134; Harmon v. Dreher, 1 Spear’s Eq. 87. But it is claimed that the action of the general conference in the revision of the church creed, and in the adoption of all resolutions touching the legality of such revision, was legislative and not judicial. With this view I concur. The general conference of the United Brethren in Christ, as was said of the general assembly of the Presbyterian Church in Commonwealth v. Green, 4 Whart 61, “is a homogenous body, uniting in itself, without separation of parts, the legislative, executive, and judicial functions of the government; and its acts are referable to the one or the other of them, according to the capacity in which it sat when they were performed.” The nature of the business in hand must determine whether it is referable to the one branch or the other. .Mr. Justice Moore, in his very able opinion heretofore rendered in this case, says: “The business of the legislature is to make general laws for the public good; that of judicial tribunals to make specific settlements of private disputes. One establishes laws for future action, and is prospective; the other applies established laws to past actions, and is retrospective in its operation. The law is made by the one and applied by the other. Applying this distinction to the acts of the conference, it would appear that it was intended for the future public good of the society. It was a rule of action for future conduct. It was not ap_ plying the law to past actions. It was not a conclusion and judgment for past offenses. It was not a punishment for a violation of any rule of faith or discipline. It was not a conclusion that any ecclesiastical law, custom, or usage of the church had been disobeyed. Nor was it retrospective in its operation”: Ante, p. 459 (31 Pac. 219). And Judge Cooley says: “That which distinguishes a judicial from a legislative act is that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be, for the regulation of future cases falling under its provisions. The legislative power extends only to the making of laws. To construe and apply the law is the peculiar province of judicial power. It is the province of judges to determine what is the law upon existing cases. In fine, the law is applied by the one and made by the other. To do the first, therefore, to compare the claims of the parties with the law of the land before established is in its nature a judicial act”: Cooley on Constitutional Limitations, 110. The claim is that the general conference of eighteen hundred and eighty-nine, in adopting the report of the special committee of seven, is judicial, and therefore binding upon the courts. The proceedings of the general conference of eighteen hundred and eighty-five, and of the commission appointed by it, did not effectuate the amendment. It was effected through the adoption by the general conference of eighteen hundred and eighty-nine of the report of the special committee of seven. The adoption of this report adopted the amendment. The proceeding is not perhaps in strict accord with recognized parliamentary usages, but the legal effect was as above stated, considering the method by which the conference transacted its business. It is in effect the same as if a legislative assembly should refer a bill to the judiciary or other proper committee, or a special committee, to determine the constitutionality thereof, and such committee should report the bill back declaring it constitutional, and in pursuance thereof the bill should pass. The appointment of the committee of seven, its report and the adoption thereof by the conference of eighteen hundred and eighty-nine, was the method pursued for the accomplishment of the necessary legislation to effect the adoption of the revised confession of faith and constitution. It was legislation solely, and could not, in the very nature of the business transacted, be anything else. No one will contend that one and the same act can be both judicial and legislative, and hence the action of the conference upon the report of the committee of seven was not judicial.

14. As to whether there has been any material change in the articles of faith, the action of the general conference, sitting as a legislative body, ought to determine. The respect which one coordinate branch of the government maintains towards another ought to apply as well where a court of civil jurisdiction is considering the legislative acts of an ecclesiastical body; and when such body, acting in its legislative capacity, has placed a construction upon its acts, there is no good reason why the civil courts should not respect and even adopt such construction, unless the same is shown to be clearly and palpably contrary to some constitutional prohibition. “Every presumption is in favor of the validity of legislative acts, and they are to be respected unless there is a substantial departure from the organic law”: People v. Briggs, 50 N. Y. 558. Judge Cooley says: “ The constitutionality of a law, then, is to be presumed because the legislature, which was first required to pass upon the question, acting, as they must be deemed to have acted, with integrity, and with a just desire to keep within the restrictions laid by the constitution upon their action, have adjudged it to be so”: Cooley on Constitutional Limitations (5th ed.), 219. The powers of the commission were, by the act of the conference of eighteen hundred and eighty-five, which appointed it, limited and defined as follows: “First, that the commission shall preserve unchanged in substance the present confession of faith, so far as it is clear; second, that it shall retain the present itinerant plan; and, third, that it shall keep sacred the general usages and distinctive principles of the church on all great moral reforms, as sustained by the Word of God, in so far as the province of this work may touch them.” As touching the work of the commission, the majority report of the committee of seven says: “We have also compared the instructions and limitations by the former general conference with their work as finally adopted by said commission, and find that said instructions and limitations were obeyed and carried out with commendable accuracy.” This report was adopted by the conference. Here, then, is legislative action declaring the fact to be that the confession of faith, so far as it was clear, has been preserved unchanged in substance. This legislative action of the general conference, composed of the very able divines of the church, is evidence of the highest character touching these questions of faith, and is entitled to great weight. And we are not without other contemporaneous evidence bearing upon the question of change. In all the discussion which took place in the conference of eighteen hundred and eighty-nine the “Radicals” do not appear to have attacked the confession of faith, as reported-from the commission. One member, high in the councils of the conference, toward the close of the debate, said: “Is it not marvelous that not a brother on the other side of the house, from Brother Barnaby to Bishop Wright, has said a word against the work of the commission itself? They have not said anything against the confession of faith, as it has been formulated and presented to us. They do not say it is any different from the old one, or that there is any heresy in it. * * * It corresponds with the old. It expresses it better, and in a more beautiful and orderly form than the old one did. It also brings in some doctrines that were scattered through the discipline in various forms, and they are put in new arrangement.” Aside from all this, leading bishops of the church have testified that in their judgment there is no substantial difference between the two. So that, considering the alleged change in the confession of faith and the materiality théreof as a question of fact, and the evidence adduced pertinent to that issue, there is but little doubt that the great weight of testimony is against the contention of the defendants to this suit; and I therefore conclude that the revision of the confession of faith has not wrought such a change in substance in the fundamental doctrines and dogmas of the church as to subvert and destroy church identity.

15. I will now consider whether the constitution of the church has been so changed as to destroy church identity. It is said that religious organizations stand in the same attitude as other voluntary associations for benevolent or charitable purposes, and that ‘ ‘ all who unite themselves to such a body do so with an implied consent to its government, and are bound to submit to it”: Watson v. Jones, 80 U. S. (18 Wall.), 729. Or, as said by Copee, J., in First Presbyterian Church v. Wilson, 14 Bush. (Ky.), 278, “Religious societies are regarded by the civil authority as other voluntary associations, the individual members and separate bodies of which will be held to be bound by the laws, usages, customs, and principles which are accepted among them, upon the assumption that in becoming parts of such organisms' they assented to be bound by those laws, usages, and customs, as so many stipulations of a contract between them.” So the constitution of the United Brethren in Christ that was binding upon that society prior to the dispute, may be regarded as a contract between the church and its members, and between the individual members thereof. An attempt at this late day to trace the history of the adoption of the constitution of eighteen hundred and forty-one, or to discuss the process by which it was formulated and ratified by the members of the church, would be a useless task; it is sufficient to know that it has been recognized by the church and its members, and treated by all concerned as valid and binding, for a period of about fifty years. Whether legally adopted or not, it has been acquiesced in for such a great length of time that I am not now disposed to declare the instrument to be any other than that which both parties to this suit have always regarded and treated as genuine antecedent to the incidents which gave rise to this litigation.

16. The constitution of eighteen hundred and forty-one is the compact by which this church and its members were bound prior to the dispute. It is a brief document, and omits all mention of many of the fundamental principles upon which the church government is founded. For the purpose of ascertaining these omitted principles it is necessary to look to the discipline, usages, and customs of the church. For instance, an annual or quarterly conference is not defined, the number of representatives to the general conference is not fixed, nor does it undertake to regulate any basis upon which such representation shall be chosen. It does not constitute or create a single officer of all these church bodies, nor does it define their duties except that bishops are “to be considered members and presiding officers.” The preamble sets forth, among other things, that the purpose of adopting the constitution was “to define the powers and the business of quarterly, annual, and general conferences, as recognized by this church, ” but a reference to its provisions shows that it failed to do either, except so far as relates to the powers and business of the general conferenea By section 1, article I, “All ecclesiastical power herein granted to make or repeal any rule of discipline is vested in a general conference.” Upon looking to the constitution alone for the grant of power, if effect is given to the words “herein granted,” none will be found “to make or repeal any rule of discipline,” except it can be extracted from the first four sections of article II, giving power to the general conference “To define the boundaries of the annual conferences; to elect bishops; to try, by impeachment, the annual conferences, and to hear appeals.” But if we take a broader view of this constitution, and regard it as state constitutions are regarded, as a limitation, and not a special grant, of power, the words “herein granted” become inoperative, and it becomes a general grant of power “to make or repeal any rules of discipline, ” being in effect authority to exercise “all the usually recognized powers of legislation not actually'prohibited or expressly excepted”: Southern Pacific Railroad Company v. Orton, 6 Sawy. 185 (32 Fed. 457). This is the light in which the general conferences have always considered this constitution, if we are to judge by the class of legislation which has been adopted by it from time to time. In fact, the general conference has been accustomed to go much farther, and has constantly and for years past exceeded even “the usually recognized powers of legislation. ” Whatever there is of the form of church government has been established by the general conference, through the discipline, and the discipline a't this time contains more of the principles of church government which are regarded as fundamental than either the old or the revised constitution. Ever since the revolution of sixteen hundred and eighty-eight, the British parliament has been conceded the power to enact fundamental as it does statute laws, by bill, passed through the regular stages of legislation and approved by the sovereign: Jameson on Constitutional Conventions, 547. And such have been the usages and customs of the general conference by a long course of legislation. So that we must not look to the constitution alone for the fundamental principles or form of church government, but must look also to the discipline.

17. The constitution of eighteen hundred and forty-one contains, for the most part, express limitations of power upon the general conference. Of such are the following: Article II, section 4. “No rule or ordinance shall at any time be passed to change or do away with the confession of faith as it now stands, nor destroy the itinerant plan.” Section 7. “There shall be no connection with secret combinations, nor shall involuntary servitude be tolerated in any way.” And Article IV. “There shall be no alteration of the foregoing constitution unless by request of two thirds of the whole society. ” No one will contend that this constitution can be legally changed except by the method therein provided, nor will any one seriously contend that the general conference had the power to change or do away with the confession of faith without the constitution being first regularly and legally modified so as to delegate such power to that body, or rather to remove the limitation upon its powers; but it does not follow that because the general conference attempted to legislate contrary to these express limitations the constitution or the form or fundamental principles of church government are thereby abandoned or set at naught. The legislation may be void, but why should it necessarily work an abandonment of the constitution or the creed of the church? There are only three changes of importance attempted or made by the revised constitution: First, the provisions for lay delegation in the general conference; second, the amendment with regard to secret combinations; and, third, the method provided for the amendment of the constitution. None of these affect the form of government or church polity. The official board, quarterly, annual, and general conferences, all remain and have their usual places, possessing their accustomed powers in the plan of church organization and government. The officers of all these bodies, and their rights and duties remain the same. The clauses touching the confession of faith, right of appeal, human slavery, church property, itinerant plan, the rights of local preachers to their votes in the annual conferences, are all in effect unchanged. It is true the three exceptions above enumerated have revised the constitution somewhat, but the form and general plan of church government is not destroyed, — the church polity remains the same. The agreement which the constitution implies has not been abrogated, and the most that can be said is that the general conference has violated the terms of the compact, for which the courts will afford an appropriate and ample remedy. Suppose the legislative assembly of Oregon was to pass an act extending to women the right of suffrage. This would not be an abrogation of the constitution which inhibits women from voting, but it would be a violation of that instrument, for which the courts would afford an appropriate remedy. The legislature of the state of Mississippi, in the year eighteen hundred and fifty-four, passed an act proposing to amend the constitution by abolishing the superior court of chancery, and establishing “chancery courts with full jurisdiction in matters of equity to be held in each judicial district by the circuit judge thereof, at such times and places as may be directed by law.” This proposed amendment was ratified by the people in eighteen hundred and fifty-five, and in eighteen hundred and fifty-six was inserted by the legislature in the constitution, and was afterwards held constitutional by a divided court: Green v. Weller, 32 Miss. 650. No one contended that the amendment was revolutionary, although it was thought by many to have been unconstitutionally adopted. If laymen have no right to sit in the general conference, courts will in a proper case prevent them from sitting, and so in regard to the other alleged amendments to the constitution. Where there is a wrong there is a remedy.

I concede the proposition laid down by Taft, J., in Brundage v. Deardorf, 55 Fed. 846, that “an open, flagrant, avowed violation of the original compact” may be “necessarily a withdrawal from the lawful organization of the church,” but the facts as presented here do not disclose that the general conference has been guilty of any such acts. No fraud is even alleged by the defendants, as was the case by the complainants in Brundage v. Deardorf. Both the conferences of eighteen hundred and eighty-five and eighteen hundred and eighty-nine acted in entire good faith, and in the belief that their proceedings were constitutional. Grant, J., in his dissenting opinion in Bear v. Heasley, 98 Mich. 279, (24 L. R. A. 615, 57 N. W. 276,) states very clearly the proposition under consideration thus: “Grant that the action of the conference was illegal in declaring the amendments adopted. It is, indeed, a startling proposition that by this act the conference destroyed its identity, ceased to represent the church, seceded from it, and thereby became a new and different church. The proposition finds no principle in law, equity, or good sense upon which to stand. The fifteen who left the regularly constituted conference became the seceders, and not those who remained in it. If the defendants are right in their contention, it would follow that if the conference had been a unit in declaring the amended constitution adopted, in which event its action would have been no more binding than now, the members of the local church might have seized the church property, on the ground that they were the sole representatives of the true church, and that all the others were heretics. The minority in this case have mistaken their remedy. They should have pursued a legal and orderly course, which was clearly open to them. They should have protested, and, failing in this, have applied to the proper courts to determine the validity of the proceedings to adopt the amended constitution; and if such courts found them void, they would hold the old constitution in force, and compel the officers of the church to recognize and act under it.” Shaw, C. J., in Earle v. Woodt 8 Cush. 458, says: “What we mean to say is this: that if, after solid and weighty consideration, humbly and conscientiously awaiting the guide of best wisdom, the yearly meeting should fully unite in the proper as well as the Quaker sense of that term, in adopting some modification of their creed or of their speculative opinions, adhering to their great principles of love and fraternal duty, it would, upon their professed principles, seem too much to say that they would thereby cease to be Quakers, and cease to be the Society of Friends. * * * All disaffected members, having full liberty of conscience, might undoubtedly dissent from such opinions, and adopt different tenets; perhaps they might by so doing become better theologians, better Christians, and better men; but they would cease to be Friends in unity with such yearly meeting, and with the meetings and individuals subordinate to it. Such dissenting individuals might form themselves into yearly, quarterly, and monthly meetings; but this would be a now organization, and not the identical body to which they had been formerly attached.”

There is a class of cases holding that where a member of an unincorporated voluntary association violates the rules of such association, he loses his rights and privileges as such member, and even forfeits his right of membership, upon the ground that when he becomes a member he is presumed to know the rules thereof, and that he agrees and consents to be governed thereby, and that a violation of such rules is a breach of his implied contract, and consequently a forfeiture of his rights and privileges as a member of such association. Of such is White v. Brownell, 2 Daly, 359; Hyde v. Woods, 2 Sawy. 655, (Fed. Cas. No. 6975, 94 U. S. 523); Ebbinghousen v. Worth Club, 4 Abb. N. C. 300; Leech v. Harris, 2 Brewst. 571; Innes v. Wylie, 1 Car. and K. 262; Venable v. Baptist Church, 25 Kan. 177; Protchett v. Schaffer, 11 Phila. 166. But none of these authorities go to the extent of holding that where the legislative branch of the highest judiciary of the church, at a general conference duly elected and lawfully convened, passes an act or ordinance contrary to or not in strict harmony with the constitution, or otherwise does an illegal act, it is necessarily an act of secession, and in subversion of the whole church government, without regard' to whether the act itself constitutes a substantial or radical change in the form of church government or church polity which formerly obtained. The fifteen who left the regularly constituted conference composed of one hundred and thirty members, and organized a separate and distinct organization, although holding to the tenets and doctrines of the United Brethren in Christ, and adopting its form of church government and its discipline, became the seceders: Methodist Church of Cincinnati v. Wood, 5 Ohio, 288; Ferraria v. Vasconcelles, 23 Ill. 456; Shannon v. Frost, 3 B. Mon. 253; Gibson v. Armstrong 7 B. Mon. 431; Trustees v. St. Michael’s Evangelical Church, 48 Pa. St. 20. I take it, therefore, that there has not been such a radical or substantial change in the constitution as to be subversive of church government and church polity, as it existed prior to the dispute, and that the church identity remains the. same; consequently the Liberals, in contradistinction to tbe Radicals, are entitled to the property involved herein.

18. But if it is at all a doubtful proposition as to whether the identity of the church has been destroyed, there is another question upon the proper solution of which the decision of this case may rest. Has the constitution been changed or revised in the manner provided therein? The old constitution provides (article IV): ‘ ‘ There shall be no alteration of the foregoing constitution, unless by request of two thirds of the whole society.” “Though it is not expressly stated, the only meaning that can be given to the constitution is that the amendment of the constitution is to be made by the general conference. And this power is limited by requiring the request or approval of two thirds of the entire society to give the amendment validity”: Brundage v. Deardorf, 55 Fed. 848. Much discussion has centered about the word “request,” the Radicals claiming that it is a ‘ ‘ condition precedent to the power to act, ” that it is active, voluntary, and must be the moving cause of the proposed amendment; the Liberals contending that it simply means a vote, an expression of assent or a passive concurrence, without regard to time, as relates to the adoption of an amendment, so that it precedes or is contemporaneous therewith. I do not think the clause of the constitution referred to should receive a strict construction, nor do I think the word “request” should bear a technical meaning. It was undoubtedly the intention of the framers of the constitution that before the general conference could make any change in that instrument it must be preceded by an expressed desire of two thirds of the body of the church, “the whole society,” favoring the change. It is highly improbable that at any time “two thirds of the whole society,” or any considerable number of the members thereof, would spontaneously and •with one accord request or signify their desire to the general conference, that a change should be made in the constitution. Some organized effort among such a numerous membership would be necessary to obtain unison of action and contemporaneous results. Hence it would not be contrary to the spirit of the constitution for any member, or minister, or any body of the church to devise any method that should seem most expedient, and effect such organization as would appear most appropriate, for obtaining an expression of the membership, and ascertaining the aggregate result with reference to such change. The general conference being charged with the duty of looking to the general welfare of the church, it would seem quite natural and appropriate that it should take a matter of such importance in hand, and devise ways and means of obtaining an expression of the membership. Now this is just what the general conference of eighteen hundred and eighty-five did. Its action was taken for the purpose of obtaining an expression of the members touching a revision of the constitution and creed. It provided for devising a method by which the aggregate of individual expression might be ascertained. This proceeding not being inhibited by the constitution, and being the legislative will of the conference, carried with it the impress of law.

Taft, J.,

in Brundage v. Deardorf, 55 Fed. 846, says: “I do not attach any particular importance to the word ‘request,’ as indicating that it is a condition precedent to the action of the general conference. It would seem that all that was intended was that no amendment of the constitution should go into effect until two thirds of the whole society should agree thereto. The constitution is inartificially drawn, and the expression ‘request,’ should not have a narrow meaning. Nor do I think there is anything in the article or in the constitution which prevents the general conference from lawfully taking steps looking to the amendment of the constitution in accordance with its terms. It would seem to be a legitimate exercise of the supreme legislative power of the general conference to enact an ordinance that upon a certain day the expression of the society should be taken by vote upon the question whether the constitution should be amended in a certain way. While the constitution was adopted at a time when the church was smaller than it is now, the hope of the founders, doubtless, was that it would extend the country over. It is not to be presumed that they inserted in the constitution a provision which, while it professed to give the power of amendment, imposed such limitations as to make it practicably impossible. Therefore, I am of the opinion that the general conference of eighteen hundred and eighty-five had the right to appoint a commission to prepare a revised and amended constitution, and fix a time at which the vote of the church should be taken to signify the desire of the church that the amended constitution should be adopted. It may be conceded, though it is not now decided, that it was also within the legitimate powers of the general conference to provide that, if two thirds of those voting at the time upon the amendment should be in favor of the new constitution, it should be held to be two thirds of the entire society, on the ground that if notice was given to the entire society of such a rule, then a failure to vote would be an acquiescence in the vote of those who did vote. But, to make such provision lawful, full and ample notice of this requirement, and of the day of the election, should be given to each member of the church. ”

19. Nor did the conference delegate to the commission legislative powers: Schweiker v. Husser, 146 Ill. 399 (34 N. E. 1022). The commission organized by it was a lawful body, created for a lawful purpose, and intrusted with legitimate powers, clearly and explicitly limited and defined.

20. The general conference, acting in its legislative capacity, could lawfully declare that two thirds of all the votes cast should be deemed two thirds of the whole society, as a basis of ascertaining the wishes of the society with reference to a change or revision of the constitution and confession of faith: Re County Seat of Linn County, 15 Kan. 500; State v. Sutterfield, 54 Mo. 305; Vance v. Austell, 45 Ark. 407. In the case of County Seat of Linn County, 15 Kan. 500, it appears that the constitution of Kansas provides (article IX, section 1): “No county seat shall be changed without the consent of a majority of the electors of the county,” and the legislature enacted that “the place receiving a majority of the votes cast shall become the county seat.” Brewer, J., delivering the opinion of the court, says: “It seems to us, therefore, that where the legislature has provided an election as the means of ascertaining the wishes of the electors of the county in reference to a change of the county seat, and has made no provision for a registration, and has designated no other list or roll as the evidence of the number of electors, it may, under the constitutional provision quoted, declare that the place receiving a majority of the votes cast shall be the county seat.” The constitution of Missouri provides that “The general assembly shall have no power to remove the county seat of any county unless two thirds of the qualified voters of the county, at a general election, shall vote in favor of such removal. ” By an act of the general assembly it was provided: “If it shall appear by such election that two thirds of the legally registered voters of said county are in favor of the removal of the county seat of such county, then the county court shall appoint five commissioners, ” etc. In construing these provisions the court held in State v. Sut terfield, 54 Mo. 895, that it must look to the “legally registered voters ” to ascertain whether two thirds had voted for the change. And in Vance v. Austell, 45 Ark. 407, it was held that “the constitutional provision that ‘no county seat shall be established or changed without the consent of the qualified voters of the county’ means a majority of the qualified voters voting at the election, and fixes this as the minimum vote necessary to effect a removal, but does not prohibit the legislature from prescribing a larger vote; and that section 1165, Mansfield’s Digest, which fixes the number assessed for poll tax on the last assessment as the criterion of the number of votes in the county is not in conflict with the constitution.” These cases rest upon the principle that the legislature may adopt as conclusive evidence of the fact any mode of ascertaining the popular will which, according to the ordinary rules of human experience, is best calculated to serve the purpose, so that it does not override or set at naught the restrictions of the constitution. There are, however, cases decided by the supreme court of Tennessee, and one by the supreme court of Mississippi, holding the contrary doctrine, but in the latest case touching the question from the former state, (Braden v. Stumph, 16 Lea, 593,) the court seems to be in doubt of its own position. Cooper, J., who announced the opinion of the court, says: “I am myself unable to see any distinction between the meaning of the words ‘consent,’ ‘concurrence,’ and ‘assent,’ as used in the clause of the constitution cited, and am inclined to think that the rule adopted in Louisville Railroad Company v. Davidson County, 1 Snead, 692, (62 Am. Dec. 424,) for the construction and application of analogous words in a statute, might well have been followed in construing and applying the language of the constitution.” The case from Mississippi (Hawkins v. Board of Supervisors, 50 Miss. 735) has been reviewed by the United States supreme court — Carroll County v. Smith, 111 U. S. 556, (4 Sup. Ct. 539,) — which, latter court refused to follow the doctrine therein announced.

21. The date of taking the vote upon the revision of the constitution and confession of faith was fixed as definitely as was the date fixed by the custom of the society to vote upon the election of delegates to the general conference, “ during the month of November, eighteen hundred and eighty-eight, ” and fair and ample notice of the time and manner of taking such vote was duly provided for and given to the members of the society. The board of bishops was directed to prepare a letter addressed to the church on the work of the commission, to be published through the Religious Teleseope, the official organ of the church, and otherwise, which was done in January, eighteen hundred and eighty-six, and the bishop’s address, accompanied by the commission act, plan of submission, and proposed confession of faith and constitution, were distributed throughout the church immediately thereafter. Here, then, is an election legally called through and in pursuance of the legislative act of the general conference of eighteen hundred and eighty-five. Applying, then, the basis fixed by the general conference for determining the vote of the society, two thirds of those who voted must be taken to be two thirds of the whole society, upon the ground that “all qualified voters who absent themselves from an election duly called are presumed to assent to the expressed will of the majority (in this case two thirds) of those voting, unless the law providing for the election otherwise declares”: County of Cass v. Johnston, 95 U. S. (5 Otto), 369; People v. Warfield, 20 Ill. 159; Taylor v. Taylor, 10 Minn. 107; Carroll County v. Smith, 111 U. S. (4 Davis), 556; St. Joseph Township v. Rogers, 83 U. S. (16 Wall.), 644; People v. Garner, 47 Ill. 246; People v. Wiant, 48 Ill. 263; Re County Seat of Linn County, 15 Kan. 500. The vote cast in favor of the revised constitution being largely in excess of two thirds of the whole vote cast, the same was therefore legally adopted when it received the sanction of the general conference of eighteen hundred and eighty-nine.

22. And it may be added in this connection that the section of the constitution placing a limitation upon the power of the general conference “to change or do away with the confession of faith as it now stands, ” may itself be legally changed by the society under the general provision for amendments.

23. And even without amending such section, changes in the confession of faith might be made in the interest of clearness and completeness of declaration of belief in the doctrines actually held by the church, which may be found less fully stated in the confession of faith of eighteen hundred and forty-one: Schlichter v. Keiter, 156 Pa. St. 119 (22 L. R. A. 161, 27 Atl. 45). These conclusions affirm the decision of the court below.

* The Code provision, section 776, subdivision 35, Hill’s Code, here referred to is as follows: “All other presumptions are satisfactory, unless overcome. They are denominated disputable presumptions, and may be controverted by other evidence. The following are of that kind * * *: 35. That a document or writing more than twenty years old is genuine, when the same has been generally acted upon as genuine by persons having an interest in the question, aud its custody has been satisfactorily explained.” — Reporter.

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Dissenting Opinion

Mr. Justice'Moore,

dissenting.

I am unable to agree with the conclusion reached by my brother, Wolverton, in this case. I do not think any satisfactory reason has been presented for changing the former opinion, to which I still adhere. Chief Justice Bean having participated in the trial of the cause below, took no part in the hearing on appeal, and Mr. Justice Wolverton and myself being unable to agree, it follows that the decree must be affirmed.

Affirmed by a division of the court.