Velasco v. Protestant Episcopal Church

⁶³⁶ Henderson, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court of Baltimore City filed March 17, 1952, reaffirming an order passed on September 14, 1951 and dismissing the bill of complaint with costs. The previous order had likewise dismissed the bill with costs, for reasons there stated. The bill of complaint, filed November 16, 1950, recited that the complainant was a priest of the Episcopal Church, resident in the Diocese of Maryland since 1938; that on June 26,1950 the Executive Council of the Diocese passed a resolution as to the complainant condemnatory in its nature; that such action was without lawful authority under the canons of the church; that he had demanded a hearing before an ecclesiastical court; that the effect of the resolution would be to prevent the complainant from continuing “on a canonical basis as a priest in charge of any Cure in the Diocese of Maryland or in any other Diocese.” The bill prayed that the court command and enjoin the church authorities (a) to rescind the resolution, (b) to refrain from enforcing it, (c) to convene an ecclesiastical court to accord him a hearing, and (d) for other and further relief.

The appellee filed an answer, and with leave of court two amended answers, admitting the adoption of the resolution but denying its purport, effect or illegality, and denying that the complainant was entitled to any hearing before an ecclesiastical court, but alleging that it had offered to convene an impartial board of inquiry if he would agree to abide by its decision, which he declined to do. The second amended answer sought to justify the resolution by a recital of a long series of disagreements between the complainant and the church authorities. The resolution in question was to the effect that the Executive Council affirmed its confidence in the Bishop, and “since it is obvious that through Mr. Velasco’s own ⁶³⁷ actions, any harmonious and fruitful pastoral relationship is impossible * * * directs the Secretary to inform the Reverend Mr. Velasco that if and when the relationship between him the Vestries of Christ Church, Guilford, and St. Mark’s Church, Highland, shall have terminated, the responsibility of the Bishop of Maryland and of the Diocese of Maryland for him shall have ceased.” On July 24, 1951 there was a hearing in open court but the matter was held sub curia. The transcript of testimony and exhibits are not in the record, the appellee says because the appellant declined to pay for it, the appellant says because the stenographer’s notes and papers were lost or not available to him.

On September 10, 1951 the Council passed another resolution (not in the record) rescinding the former one, and informed the chancellor of its action. On September 14, 1951 the chancellor filed a memorandum and order reading as follows: “Since the hearing in the above case the resolution dated June 26, 1950, which resolution was the basis for the filing of the Bill of Complaint, has been repealed and rescinded, and therefore the granting of the first two prayers for relief in the Bill of Complaint would serve no practical purpose. “The Court further finds from the pleadings, testimony and exhibits, that the plaintiff was not deprived of any rights in such a manner as would call for the intervention of a Court of Equity, the bill of complaint is therefore dismissed with costs.” After further proceedings, consisting of a petition to modify the order, answer and motion ne recipiatur, the court passed the order appealed from. The appellee has filed a motion to dismiss the appeal on the ground that the transcript does not include the testimony or exhibits. Of course, we cannot resolve disputed questions of fact without the evidence on which the chancellor may have acted, but appeal should not be dismissed if other questions are properly presented. ⁶³⁸ It is necessary, therefore, to determine what, if any, issues are raised by the appeal.

The appellant states in his brief that only two questions are presented “in the alternative form. 1. Should the complained of resolution be expunged from the records because it was not in accordance with the Canon Law of the Church? If not 2. Did Complainant have the right to require an ecclesiastical trial to answer the allegations in that resolution?” In short, the appellant concedes that the prayer in the bill for trial by an ecclesiastical court was subsidiary to, and not independent of, the prayer for rescission of the resolution.

The appellant also states: “Respondent, through the court’s intervention, repealed and rescinded the ultra vires, derogatory resolution which was the basis for the bill of complaintj. Relief prayed was thereby granted. Trial by the Ecclesiastical Court on the allegations of the repealed resolution was no longer a question. The allegations no longer existed.” The appellant likewise appears to concede that after the resolution was rescinded there was no longer any occasion for the court to determine whether the resolution was illegal or unjustified in fact.

If this be so, it would be equally futile for us to review the evidence presented, even if it were before us. The gravamen of the appellant’s contention on this appeal seems to be that the court did, in fact,