Edwin H. Rian
AS SOON AS the Orthodox Presbyterian Church was formed, ministers and congregations of the Presbyterian Church in the USA began renouncing the jurisdiction of the church and uniting with the new body. This involved the question of the ownership of church property. Did it belong to the denomination as a whole or to the individual congregations which built it and paid for it?
A Special Committee on Legal Procedure was appointed by the 1936 General Assembly of the Presbyterian Church in the USA,
to take such measures as may be adequate to maintain the full constitutional authority of the Presbyterian Church in the U.S.A., guard all its interests and protect all its property rights, and associate with them, in the above responsibilities, such ministers and ruling elders, not exceeding seven in number, as they may deem wise counselors, and to make full report to the next General Assembly.
Two of the six ministerial members of this committee, the Rev. George E. Barnes, D.D., and the Rev. Robert B. Whyte, D.D., were signers of the Auburn Affirmation.
In practically every instance, with the exception of two congregations, one in North Dakota and the other in Wilmington, Delaware, those congregations which voted to withdraw from the Presbyterian Church in the USA were divided in their allegiance. In most cases only a few desired to remain in the Presbyterian Church in the USA, but these individuals, apparently, expressed no desire to prevent the vast majority of the congregation from using the building as a place of worship under their new relationship with another denomination. Yet in every case, whether the minority desired it or not, and even where the congregation voted unanimously to leave the Presbyterian Church in the USA, the Committee on Legal Procedure of that church entered a suit in the civil courts to restrain the congregation from using the property as a place of worship under any other denomination than the Presbyterian Church in the USA. Suits involving property valued at more than two million dollars were begun in the civil courts in the Synods of New England, New Jersey, Baltimore, Pennsylvania, Iowa, North Dakota, South Dakota, and Wisconsin.
This committee used as its guide the principles of Presbyterian church property laid down by the Supreme Court of the United States in the case of Barkley vs. Hayes, which states that a local congregation is an integral part of the church as a whole, and as such its property is owned ultimately by the denomination.
The most outstanding case involving church property was that of the Presbyterian Church in the USA vs. The Presbyterian Church of Collingswood, New Jersey, of which the Rev. Carl McIntire was pastor. Mr. McIntire, a member of the Independent Board for Presbyterian Foreign Missions, had been suspended from the ministry of the Presbyterian Church in the USA and had subsequently renounced the jurisdiction of that church and had united with the Presbyterian Church of America. The congregation then voted on June 15, 1936, to withdraw from the Presbyterian Church in the USA and to remain independent ecclesiastically, but continued to use the church building and Sunday School rooms, valued at some $200,000. On June 26, 1936, the Presbyterian Church in the USA, through five members of the Collingswood Presbyterian Church who were opposed to Mr. McIntire, applied for an injunction to restrain the congregation from the use of the buildings. The congregation filed an answer within ten days, and as a result the Rev. Carl McIntire and congregation were allowed to worship in the church until the case had been heard and a decision had been rendered.
On March 3, 1937, the case of J. Earnest Kelly versus Carl McIntire, et al., was heard before vice chancellor Francis B. Davis in Camden, New Jersey. The plaintiffs in the case argued that an individual Presbyterian church is an integral part of the whole denomination so that its property belongs to the denomination and cannot be used for any purpose not sanctioned by the judicatories of the church. Mr. McIntire had been suspended from the ministry of the church and, being under this censure, he had no right to preach in the church until his censures had been removed and his right to minister fully restored. The congregation had withdrawn from the denomination and so should not be allowed to use the building for worship but must seek other premises for such purposes.
The defendants, on the other hand, maintained
that the agencies and judicatories of the Presbyterian Church in the U.S.A. have so departed from the fundamental principles, faith and constitution of the denomination, that these denominational agencies and those avowing loyalty to them, are not entitled to the property of the Collingswood Presbyterian Church as against the members thereof who have steadfastly remained loyal to the principles as set forth in the Constitution of the Presbyterian Church in the U.S.A. under which title was acquired and under which the congregation of the local church was formed.
With reference to the Rev. Carl McIntire, the defendants claimed,
The express violation of the Constitution of the Presbyterian Church in the trial and suspension of defendant, Carl McIntire, is evident in four particulars; first, the mandate forming the basis of the charges against him was an improper basis for the procedure; second, the presbytery failed to stay the proceedings after a complaint was filed with the Synod; third, there was a variance in the charges and specifications which were presented and those upon which the actual trial was held; and fourth, the synod violated the constitution in affirming the judgment of the lower court although many specifications of error were sustained.
These matters mentioned above were express violations of the constitution of the Presbyterian Church in the USA, and the censures placed upon the Rev. Carl McIntire had no legal effect. In view of this situation, the defendants said no other action was possible than for Mr. McIntire to renounce the jurisdiction of the Presbyterian Church in the USA and for the congregation to do likewise. The congregation had not seceded from the denomination but had simply announced that it could not "accept the jurisdiction of a body which openly and avowedly defies this Constitution."
The judge ruled in favor of the Presbyterian Church in the USA on the principle that a local congregation is subject to the church as a whole, and cannot use the property contrary to the wishes of the denomination. The judge refused to rule on the doctrinal controversy as immaterial to the case. Therefore the congregation was restrained from using the property and Mr. McIntire from preaching and conducting services in the building "until his censures are removed and his right to minister has been restored by due proceedings according to the constitution and practices of the Presbyterian Church in the U.S.A." Mr. McIntire and the congregation which left with him did not appeal the decision to a higher court but left the building to worship in a newly constructed tabernacle.
The principles by which the Special Committee on Legal Procedure of the Presbyterian Church in the USA was guided in this case, and which were upheld by the civil courts in most of the property cases, were as follows:
1. An individual Presbyterian Church is an integral part of the whole Presbyterian denomination, and is subject to the Constitution of the Presbyterian Church in the U.S.A. Its entire property belongs to the denomination itself, and cannot be used for any purposes which are not sanctioned by the judicatories of the Church.
2. The members of an individual Presbyterian Church cannot by solemn resolution repudiate the authority of the Presbyterian Church in the United States of America, then by subsequent resolution attempt to take their church property out of the denomination, even if their effort in so doing is unanimous.
3. In the event of secession, the property remains for the use of the loyal members of the congregation recognized by the judicatories of the Presbyterian Church in the United States of America.
4. The orders and decisions of the judicatories of the Presbyterian Church in the U.S.A. are final and binding upon its members and every part of the Church, and must be accepted in litigation before the civil courts as conclusive.
5. Civil courts consider themselves incompetent judges in matters of faith, doctrine, and ecclesiastical law, and consequently will not inquire into such matters, particularly when the religious denomination has its own system of courts to determine cases of that character.
Every case to date involving church property between the Presbyterian Church in the USA and those who renounced its jurisdiction since 1936, has been awarded to the Presbyterian Church in the USA upon these principles, with the exception of one case.
The First Presbyterian Church in Leith, North Dakota, voted unanimously on August 2, 1936, to renounce the judicatories of the Presbyterian Church in the USA. The Rev. Samuel J. Allen, the pastor, had already done so and had become affiliated with the then Presbyterian Church of America, later known as the Orthodox Presbyterian Church. Immediately, the Presbyterian Church in the USA, through its Presbytery of Bismarck, brought suit in the civil courts against the officers and members of the First Presbyterian Church of Leith, attempting to secure possession of and title to the church property. The same arguments in substance were presented by both parties in this case as in the case involving the Collingswood Presbyterian Church. However, the First Presbyterian Church of Leith had voted unanimously to renounce the jurisdiction of the Presbyterian Church in the USA. On June 17, 1939, the courts handed down a decision in favor of the defendant church. In the mind of the court the case hinged upon the unanimous vote of the congregation.
It seems clear that a minority, or even one member of a congregation, may prevent the use of the church property for purposes other than the trust for which it was created....
If there isn't even one to object, then can the general organization of the denomination (plaintiff in this case) which is no part of the Congregation, prevent the unanimous congregation from using the property as it sees fit?
The Church at Leith, North Dakota, is a North Dakota corporation under the control of trustees. The cestuis que trust are the members of the Congregation. The Presbyterian Church in the U.S.A. is in no way a party to this trusteeship....
If the trustees act within the scope of their authority which they received from the Congregation with respect to the property, it seems the plaintiff in this case would be interfering with the powers and duties of the trustees in attempting to take the property away from them....
... The Trustees represent the Congregation, and the trustees may do with the property whatever the cestuis que trust unanimously consent to their doing.
There was no schism. There was no disagreement whatever in the congregation, or with the trustees, and the court can find no operation of the law, or under the Constitution of the plaintiff which makes it the equitable owner of the property.
The court in this case directly contradicted the principle laid down by the Special Committee on Legal Procedure of the Presbyterian Church in the USA, that "the members of the individual Presbyterian Churches cannot by solemn resolution repudiate the authority of the Presbyterian Church in the U.S.A., then by subsequent resolution attempt to take their church property out of the denomination, even if their effort in so doing is unanimous."
A similar case is now pending before the courts of Delaware, that of the Presbyterian Church in the USA versus the members and officers of the Eastlake Presbyterian Church of Wilmington, Delaware, which voted unanimously on June 24, 1936, to renounce the jurisdiction of that denomination.
Another case involving church property is now before the courts in Portland, Maine, but this suit is somewhat different. The Second Parish Presbyterian Church in Portland and its pastor, the Rev. John H. Skilton, voted on June 30, 1936, to withdraw from the Presbyterian Church in the USA and to unite with the then Presbyterian Church of America. The Presbyterian Church in the USA applied for an injunction asking the court to restrain the congregation from using the property for worship. This the court refused to grant. The case proper is now being heard before the civil courts.
The Second Parish Presbyterian Church building is owned by a corporation known as the Second Parish in the Town of Portland, which leases the property rent free to the Second Parish Presbyterian Church. Members and contributors to the church can become members of the Second Parish in the Town of Portland only by election which is conducted by the corporation as an organization separate from the church. This means that the church building is held by the corporation entirely separate from the congregation. Since this difference in ownership obtains, the decision of the court is awaited with much interest.
Certain individuals of the Presbyterian Church in the USA look upon this legal action against members who have left the denomination as "highly discreditable to the Presbyterian Church in the U.S.A.," because in most instances the church buildings were purchased by the local congregations without financial aid from the denomination as a whole. The entire proceedings have not advanced the cause of the Presbyterian Church in the USA in the estimation of the public. As was pointed out in chapter twelve, the Orthodox Presbyterian Church has made such legal action impossible and thereby has avoided a potentially great wrong.
In practically every case the withdrawing congregations have built new edifices and their work has gone on unabated. The technical legalities have compelled the courts to yield to the demands of the Presbyterian Church in the USA, while the underlying doctrinal differences have been brushed aside. Yet the decisions in favor of the Presbyterian Church in the USA have in no way destroyed the basic conflict of theology which really caused hundreds of members to leave that communion.
The ministers and the members of the Orthodox Presbyterian Church have demonstrated their allegiance to the Bible rather than to bricks and mortar, and have tried to live out the words of Martin Luther's hymn,
Let goods and kindred go,
This mortal life also;
The body they may kill;
God's truth abideth still,
His Kingdom is forever.
 Minutes of the General Assembly 1936, Part 1, 114-15.
 Minutes of the General Assembly 1937, Part 1, 67.
 Minutes of the General Assembly 1937, 70.
 Ibid., 68-69.
 Christian Beacon 3 (March 24, 1938), 1.
 The Defendants' Brief.
 Conclusions of Vice Chancellor, Francis B. Davis, Chancery Court, Camden, N.J., in case of J. Earnest Kelly vs. Carl McIntire, et al.
 Christian Beacon 3 (March 31, 1938), 1.
 Minutes of the General Assembly 1938, Part 1, 45.
 Opinion of the Court, Minor, North Dakota, June 17, 1939, as recorded in the Presbyterian Guardian 6 (August 1939), 159-60.
 Christianity Today 9 (Spring 1939), 102.