Maryland & Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, Inc.

BarnLs, J., delivered the opinion of the Court. The appeal in this interesting case was taken from an April 4, 1967, decree of the Circuit Court for Washington County ⁶⁵³ (McLaughlin, C. J.) in two companion cases dismissing the bills of complaint filed by the appellant, The Maryland and Virginia Eldership of the Churches of God (Md. & Va. Elder-ship), a Maryland corporation and others against the appellees, The Church of God at Sharpsburg, Inc. (Sharpsburg), a Maryland corporation and its called Pastor, and against the Indian Springs Church of God (Indian Springs), also a Maryland corporation and its acting Pastor, seeking to prevent Sharpsburg and Indian Springs from withdrawing from the Md. & Va. Eldership and to determine which of two factions involved in-each suit should control the respective churches, their property and corporations.

The other appellants in the Sharpsburg suit are several members of the Sharpsburg congregation and its-appointed Pastor; in the Indian Springs suit the other appellants are two members of the congregation of that church. In-addition to dismissing the bill of complaint, the Chancellor dissolved the temporary injunctions previously issued in the respective cases. The facts, with certain reservations as to relevancy, are not disputed and are incorporated in an agreed stipulation filed in the suit. The General Eldership of the Churches of God in North America (General Eldership) is a religious denomination organized in 1845 by John Winebrenner.

It was incorporated on April 18, 1867, by an Act of the General Assembly of Pennsylvania. The Md. & Va. Eldership is one of the Elderships which make up the General Eldership, and was formed in 1872. It was originally incorporated in 1878 in Carroll County, Maryland and' is presently incorporated by Articles of Incorporation recorded' in Washington County on September 4, 1928.

Sharpsburg was organized sometime prior to 1872 and was one of the original members of the Md. & Va. Eldership. It continued as such a member until it withdrew in 1966. It was incorporated on May 20, 1881, and again on December 2, 1939.

Harry S. Churchey, one of the appellees, was issued a Christian Worker’s Certificate on October 13, 1922, an annual license on October 17, 1957, an annual Ordination Certificate on October 17, 1959, and on October 13, 1960, he was issued a Life Ordination Certificate authorizing him to serve as a Minister of God. ⁶⁵⁴ He was never appointed by the Md. & Va. Eldership to be the pastor at Sharpsburg, his last appointment being as pastor at Chestnut Grove and Knoxville on October 4, 1965. He was, ¡however, “called” by Sharpsburg in June, 1966, and began his ministry there on July 17, 1966. Bennett G. Murray, one of the appellants and a plaintiff below, was appointed by the Md. & Va.

Eldership to serve as pastor at Sharpsburg, but that church refuses to let him occupy the pulpit. Sharpsburg was conveyed land on September 29, 1938 by a deed to the Trustees of the church for use of the congregation. A clause in this deed provides “in the event the congregation of the Church of God at Sharpsburg ceases as a church organization, then all right, title and interest in the hereinabove described property shall immediately vest * * *” in the Md. & Va. Eldership, “a body corporate, its successors or assigns.” The Sharpsburg church property is valued at $20,000 and was subject to a mortgage dated November 13, 1956, from the Trustees and the Md. & Va.

Eldership. Neither the General Eldership nor the Md. & Va. Eldership contributed any funds for the purchase of this property which has not been repaid to them. At a duly called meeting of the congregation of Sharpsburg on June 26, 1966, a majority of those present voted to withdraw from the Md. & Va.

Eldership. The vote was properly recorded. The appellants deny 4he effectiveness or propriety of this action. Indian Springs was originally incorporated on March 30, .1929, under the name “The Indian Springs Union Church and ;Sunday School Association of Washington County.” The Articles of Incorporation were recorded in Washington County :and were amended on March 1, 1962, to change the name of the •corporation to its present name “Indian Springs Church of God.” Indian Springs was either a member of or was affiliated with 'the Md. & Va.

Eldership from 1943 to 1966, having been formally admitted to membership in 1946. Mervil Stambaugh, one •of the appellees and a defendant below, received his Christian 'Worker Certificate from the Md. & Va. Eldership in 1963, his •annual license in 1964, and his annual certificate in 1965. He was appointed pastor at Indian Springs by the Md. & Va.

Eldership in 1964 and was reappointed, at the request of that «church, in 1965. Indian Springs owns two parcels of land: (1) ⁶⁵⁵ the church building conveyed to the Trustees of the church on April 8, 1953, by a deed which provides in part that if the church should become extinct or cease to be, the property should be the property of the Md. & Va. Eldership; this property is valued at $30,000 and is subject to a mortgage of approximately $4,000, and (2) the parsonage property conveyed to the Trustees on April 14, 1962, by a deed containing no reversion clause whatever; the parsonage property is valued at $14,000. Neither the General Eldership nor the Md. & Va.

Eldership contributed any funds for the purchase of these properties. A majority of the congregation at Indian Springs and its pastor Stambaugh on July 10, 1965, voted to withdraw from the Md. & Va. Eldership. The meeting was properly called and the vote was properly recorded.

The appellants deny the effectiveness or propriety of this action. On July 29, 1966, the executive committee of the Administrative Council of the General Eldership gave a “judgment” that all persons who voted to withdraw from the Md. & Va. Elder-ship have: “* * * abandoned and forfeited all rights, privileges, properties and offices in the local church and in the Churches of God * * *. In each local church the members who continue to adhere and submit to the doctrines and the policy of the denomination constitute the true congregation.

The Executive Committee, as the duly constituted supreme court of the Churches of God, so determine, reaffirming that the presbyterial polity of the Churches of God recognizes no right of secession on the part of congregations affiliated with the denomination * * *.” The appellees deny the effectiveness of this action. On July 30, 1966, the Md. & Va. Eldership revoked the annual ordination certificate issued to Harry S. Churchey, expelled him from the Md. & Va. Eldership, and denied him the right and privilege of preaching in and administering any of the churches and property of the Eldership.

The Eldership also expelled from it all persons who participated in the withdrawal of a congregation from the Eldership. On the same day it took the same action against Mervil Stambaugh. Since that ⁶⁵⁶ date the church councils of Sharpsburg and of Indian Springs have refused to recognize any authority of the Md. & Va. Eldership over the respective churches.

Sharpsburg has continued to employ Harry S. Churchey as pastor and has refused to accept Bennett Murray as pastor; Indian Springs has continued to employ Mervil Stambaugh as pastor and has refused to accept Bennett Murray as pastor. After their admission and until 1965, both Sharpsburg and Indian Springs accepted appointments as pastors of persons appointed by the appropriate committee of the Md. & Va. Elder-ship, sent delegates to the annual sessions of the Md. & Va. Eldership and paid assessments made against the local churches for the General Eldership and the Md. & Va.

Eldership. The appellees deny the relevancy of these facts. Copies of the Articles of Incorporation of the General Elder-ship, the Md. & Va. Eldership, Sharpsburg and Indian Springs are part of the stipulation of facts and specific references to these documents will be made later in this opinion.

There are also copies of other documents, books and other data to which reference will be later made. Two questions are presented to us for decision: 1. Under the applicable statutes of the State of Maryland, the provisions of the Constitutions of the Md. & Va. Eldership and the General Eldership, the corporate charters of Sharpsburg and Indian Springs and the deeds of property to the trustees of the local corporations, may a majority of the congregation withdraw from the denomination and retain control of the property of the local church and the church corporation ? 2.

Did the decision of the Chancellor violate the First and Fourteenth Amendments to the Constitution of the United States ? We are of the opinion that the first question must be answered in the affirmative, the second in the negative and that the decrees of the Chancellor should be affirmed. 1. The principal issue in the present case involves the question of whether the property of the two local churches is controlled by trustees of the local churches representing the majority of the congregation of those local churches. The two local churches ⁶⁵⁷ were incorporated under the General Religious Corporation Law of this State, now Code (1957), Article 23, Sections 256 to 270.

The present General Religious Corporation Law is based upon and largely follows the original legislation on this subject, i.e., the Act of 1802, chapter 111. The present law provides in effect that in every church, religious society or corporation of whatever sect or denomination “protected in the free and full exercise of its religion by the Constitution and laws” of the State there shall be power and authority in all persons above 21 years of age belonging to “any such church, society or congregation” to elect certain persons, not less than four nor more than twenty-five, who when elected “shall be constituted a body politic or corporate to act as trustees in the name of the particular church, society or congregation for which they are respectively chosen, and manage the estate, property, interest and inheritance of the same.” (Emphasis supplied.) By the provisions of Section 257, the trustees are given perpetual succession by their name of incorporation and very broad powers in regard to the corporate property. The trustees may purchase and hold the property and “use or lease, mortgage or sell and convey the same in such manner as they may judge most conducive to the interest of their respective churches, societies or congregations,” with a provision that they shall not sell, mortgage or dispose of property held by the corporation under an instrument prohibiting such sale. There are provisions for election of trustees, how their succession is maintained, with a provision that the minister or senior minister shall be a member of the corporation, ex officio, as well as provisions for the arbitration of contested elections, provisions for the adoption of a plan, agreement or regulation at the first election of trustees, its acknowledgement and entry in a book required to be kept, the recording of the plan, agreement or regulation with the Department of Assessment and Taxation and the procedure for amendment.

Several denominations have specific provisions in Article 23 in regard to their organization and the holding of property. The Roman Catholic Church has provisions in Sections 271 to 274 for the incorporation of its parishes, the ordinary (the Archbishop), the vicar-general and the pastor of the congrega ⁶⁵⁸ tion together with those persons appointed by the ordinary, are designated as incorporators. Sections 275 to 297 relate to the Protestant Episcopal Church in the Diocese of Maryland and ■are basically the provisions of the original Vestry Act, i.e., Act •of 1798, chapter 24. 1 Sections 298 to 312 contain the provisions of a new act relating to the Protestant Episcopal Church in the Diocese of Easton (consisting of the nine Eastern Shore counties of Maryland), but this Act is not applicable in the Diocese of Maryland. Section 313 relates to the formation of corporations of the Methodist Church and Section 314 provides for the formation of corporations of the Presbyterian Church in the United States.

It is clear that when a congregation is incorporated under the General Religious Law applicable to all religious groups, the trustees and the local congregation own and control the property of the local church. There is no provision in the General Religious Law that the local congregation conform to or follow any particular religious tenet or doctrine and it is apparent that it would be inappropriate for the General Assembly to have made such a provision. In short, the General Religious Law is concerned with the ownership, use and disposition of property, not with any religious theories, doctrines or tenets. So far as the Maryland statutory law is concerned, there seems little doubt that the trustees and congregations of the local •churches are entitled to own, use and control the property of the respective corporations.

The charters of the respective local churches plainly confer the ownership, use, management and sale of the property of the local churches on the corporations and their trustees, subject to the provisions of the local by-laws. The stated purposes of the corporations are to “form a church organization or congregation to bring to the people of the community a vital knowledge of Jesus Christ as Lord and Savior and to promulgate the ⁶⁵⁹ Gospel of the New Testament Scriptures” (Sharpsburg) and “to provide its members (of the corporation) with the preaching of the Word of God, the administration of the ordinances, the facilities for public worship and the exercise of Christian discipline and to adopt and prosecute from time to time new measures as are in harmony with the spirit and teaching of the Word of God as shall tend to promote the Kingdom of God in this World” (Indian Springs). “The business and property of the Corporation shall be conducted and managed by a Board of not less than five * * * Trustees * * *” (Sharpsburg) and “the Trustees shall, in conformity to the law, control all property belonging to said congregation” (Indian Springs). In Section Three, subsection (e) of the Sharpsburg Charter appears the following: “The Corporation shall have all the General Powers conferred by Chapter 334 of the Laws of the General Assembly of Maryland, Acts of 1924, or any amendments thereto, and the enumeration of specific powers in this Certificate of Incorporation are in furtherance of and not in limitation of the General Powers conferred by law.” In Section 3 of the Charter of Indian Springs, it is provided: “The congregation of this Church shall be and remain an independent congregation and may own and dispose of property, both real and personal, as said congregation in accordance with its By-Laws and ordinances shall deem proper. This congregation and church may from time to time as may be deemed fit associate itself with such church denomination as it may deem desirable but such association shall in no wise effect this Corporation in its ownership and control of its real and personal property, which shall be and remain in the properly constituted officers of this Corporation(Emphasis supplied.) In neither charter is the Md. & Va.

Eldership or the General Eldership mentioned. The question then arises in regard to whether the trustees and the local congregation have lost the rights conferred by the ⁶⁶⁰ General Religious Law and their respective corporate charters for the ownership, use and control of the property of the local churches because of their withdrawal from the Md. & Va. Eldership after a regular vote of the majority of the respective congregations. 2 In considering this rather narrow question, it will be helpful to review the law in regard to the jurisdiction of courts in the United States in religious disputes and the exercise of such jurisdiction. Our predecessors have held, in accordance with the law generally in this Country, that in regard to matters involving spiritual affairs the Maryland courts have no power to interfere.

Such matters “must be left with the authorities of the church or denomination who have the power, by custom and usages of the ecclesiastical organization, to consider and determine upon them.” Shaeffer v. Klee, 100 Md. 264, 271 , 59 A. 850, 852 (1905). In short the courts, wisely we think, will not enter a “theological thicket.” The Supreme Court of the United States in the case of Watson v. Jones, 80 U. S. (13 Wall) 679, 20 L. E. 669 (1872) declined to follow the English cases and especially The Attorney General, ex rel. Mander v. Pearson, 3 Mer. 353, 36 Eng.

Rep. 135 (Ch. 1817), which held in an opinion by Lord Chancellor Eldon that there was an implied trust on the part of those who gave the property to the local church that the trust res would be used for the promulgation of the faith and doctrines in effect when the property was given, even though there was no express provision to that effect in making the gift. Mr. Justice Miller, for a majority of the Supreme Court, pointed out that the English precedents were not persuasive in that Eng ⁶⁶¹ land had an Established Church and the English cases were related to that concept, largely repudiated in the United States. When rights of property are involved, however, the courts, of necessity, must proceed to consider and adjudicate those rights not only to solve the particular case and the rights of the litigants before them, but also to preserve definiteness and order in the holding of property by religious corporations. Mr. Justice Miller in Watson recognized this and indicated three general classifications in regard to property held by religious bodies as follows: “The questions which have come before the civil courts concerning the rights to property held by ecclesiastical bodies, may, so far as we have been able to examine them, be profitably classified under three general heads, which of course do not include cases governed by considerations applicable to a church established and supported by law as the religion of the state. “1.

The first of these is when the property which is the subject of controversy has been, by the deed or will of the donor, or other instrument by which the property is held, by the express terms of the instrument devoted to the teaching, support, or spread of some specific form of religious doctrine or belief. “2. The second is when the property is held by a religious congregation which, by the nature of its organization, is strictly independent of other ecclesiastical associations, and so far as church government is concerned, owes no fealty or obligation to any higher authority. “3. The third is where the religious congregation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization.” (80 U. S. (13 Wall.) at 722-23).

The third classification appears to be modified by a subsequent decision of the Supreme Court of the United States which ⁶⁶² indicates that there must be an element of fairness in the decisions of the church tribunals. See Gonzalez v. Archbishop, 280 U. S. 1 , 50 S. Ct. 5 , 74 L. E. 131 (1929), in which Mr. Justice Brandeis, for the Supreme Court, stated: “In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise.” ( 280 U. S. at 16 ). And see; Master v. Second Parish of Portland, 36 F. Supp. 918 (D. Me. 1941), aff’d. 124 F. 2d 622 (1st Cir. 1941). See also-the helpful notes entitled Judicial Intervention in Church Property Disputes- Some Constitutional Considerations, 74 Yale L.J. 1113 , 1119-1121 (1965); and Judicial Intervention in Disputes Over the Use of Church Property, 75 Harv.

L.Rev. 1142' (1962). In considering questions in regard to the use of church property it is usually important, in the absence of express language-in the deed conveying the property or making the gift, to consider the “polity” or form of church government which the particular denomination has. In the note in 75 Harv. L.Rev.„ at pages 1143-4, the three general types of church polity are defined as follows: “At least three kinds of internal structure, or ‘polity,’ may be discerned; congregational, presbyterial, and episcopal.

In the congregational form, each local congregation is self-governing. The presbyterial polities are representative, authority being exercised by laymen and ministers organized in an ascending succession of judicatories — presbytery over the session of the local church, synod over presbytery, and general assembly over all. In the episcopal form power reposes, in clerical superiors, such as bishops. Roughly, presbyterial and episcopal polities may be considered hierarchical, as opposed to congregational polities, in which the autonomy of the local congregation is the central principle.” (Footnotes omitted.) ⁶⁶³ In many of the hierarchical churches there may be provisions in their Constitutions, Canon Law or other controlling documents or statutes which make it clear that the property is held in trust for the uses of the parent church and its discipline and appointments.

See, for example, Article 23, Section 313 (e) in regard to the holding of property in the Methodist Church. There may be a requirement that the local church include provisions in the deeds to its property that it is held in trust for the parent church in conformity to its worship, doctrine and discipline and, upon a departure therefrom, the property will revert to the hierarchical body. Even in the absence of such an express provision in the deeds to the local church property, there may be an implied consent by the local church that the local property is so held if the constitution, by-laws, canon law or statute provide to that effect. It thus appears that there are three methods by which a hierarchical denomination may maintain control of local church property: 1.

It may require reverter clauses in the deeds to the property of the local churches. 2. It may provide in its constitution or by some other authoritative source for the reverting of the local church property to the hierarchical body upon withdrawal by a local congregation with an implied consent by the local church to this provision. 3. It may obtain from the General Assembly an act providing for such a result. As we will later consider, the Church of God did not use any of these three possible means to obtain control of local church property.

A denomination need not adhere strictly to any one of the three polities mentioned — episcopal, presbyterial or congregational. It may avail itself of parts of one, two or even all three. An example of the last possibility is the Protestant Episcopal Church in the Diocese of Maryland, which has a bishop as part of an episcopal polity, but is governed on a diocesan level by the bishop and the convention consisting of the clergy and certain elected laymen (a characteristic of presbyterian polity), but, under the provisions of the original Vestry Act and in the present Maryland statutes in regard to that church, the control ⁶⁶⁴ of parish or local church property is in the hands of the Vestry or trustees for the local church or parish. See Article 23, Section 304.

The power to call a priest as rector for the local church or parish is also given to the Vestry subject to certain conditions with the right to contract with the priest in regard to salary, duration of the employment and other matters. It is thus seen that merely because a denomination has some of the characteristics of one type of polity, some of the characteristics of other polities are not excluded. This is the situation in regard to the Church of God. As the Church of God does not have bishops, it obviously does not follow an episcopal polity.

It does, however, have some and perhaps more of the characteristics of the presbyterial polity in that there is a governing body beyond that of the local congregation consisting of elders, the ordained ministerial elders (teaching elders) and the elected lay persons (ruling elders) and a general eldership over all of the intermediate elderships. This does not, however, exclude the use of a congregational polity so far as the use and control of property of the local congregation is concerned, and an examination of the Constitutions and other documents of the Md. & Va. Eldership and of the General Eldership indicates that this is the case. In the Constitution of the General Eldership there is no statement in regard to the ownership or control of church property.

Apparently any such provision was deliberately omitted since there was attached to the Constitution of the General Eldership a statement under the heading of “Important Information” in which two resolutions are quoted as follows : “1. Resolved, That this General Eldership reconimends to all the brethren in the Churches of God to have their Bethels or meeting-houses parsonages, etc., deeded to the elders or trustees of their respective local churches, and their successors in office, to be held by them in trust for the church. “2. Resolved, That we also advise them to have inserted in the deed a provisionary clause, providing that in case the Church becomes extinct or ceases to maintain an organisation in harmony with the doctrines and ⁶⁶⁵ polity of the Churches of God in North America, the property shall revert to the annual Eldership of which the church is a part.” (Emphasis supplied.) It will be observed that these resolutions are not part of the Constitution of the General Eldership and, in any event, are advisory only. The Md. & Va.

Eldership did not accept this “advice,” but, on the contrary, in its Constitution in Article XVII — “Deeds” provides as follows: “Local church property, whether personal or real, shall be deeded to the trustees of local churches and their successors in office, with this proviso : That should the church become extinct, or cease to be, the property shall be the property of the Maryland and Virginia Eldership, a body corporate, to be disposed of at its pleasure.” (Emphasis supplied.) Nor do the deeds for the properties of the local churches provide for their reverting to the Md. & Va. Eldership if the congregation withdraws from that Eldership. The deed to the Sharpsburg church recites in the habendum clause that it is held by the trustees and their successors “in trust for the use of the congregation of the Church of God at Sharpsburg, Maryland,” and— “* * * in the event the congregation of the Church of God at Sharpsburg, Maryland, ceases to function as a church organization, then all right, title and interest in the hereinabove described property shall immediately vest in the Maryland and Virginia Eldership of the Churches of God in North America, a body corporate, its successors or assigns.” (Emphasis supplied.) One of the Indian Springs deeds has a provision that if the church should become extinct or cease to be the property reverts to the Md. & Va. Eldership; the other Indian Springs deed (for the parsonage) contains no reverter clause whatever.

It is abundantly clear from these facts that the Md. & Va. Eldership did not even recommend a reverter clause if there was a departure from doctrine or a withdrawal from the Eldership, but did recommend such a reverter if the local church became ex ⁶⁶⁶ tinct or ceased to be, a quite different situation from the withdrawal and continued active existence of the local church. There is, therefore, no applicable provision for reverter or forfeiture of the property of the local church to the Md. & Va. Eldership in the event of withdrawal by the local church from the Elder-ship.

The control of the local church property by the local church, its trustees and corporation given by its charter, its deeds and the Maryland General Religious Corporation law continues. S. G. Yahn, D.D., the editor of The Church Advocate and well versed in the polity of the Church of God, published a book entitled, “Polity of the Churches of God in North