
    Case 56 — Action foe an Injunction —
    Jan. 23.
    Bennett, &c. v. Morgan, &c.
    APPEAL FROM GRAVES CIRCUIT COURT.
    JUGMENT FOR PLAINTIFFS AND DEFENDANTS APPEAL.
    AFFIRMED.
    Religious Societies — (Doctrines of Primitive Baptist Ci-iurch — Departure from Faith — Right of Majority to Control — Interest of Expelled Member in Church Property.
    Held: 1. The doctrine of “absolute predestination” and of “limited predestination” are both taught, in substance, in churches of good standing in the associations of the Primitive Baptist Church, and, as there is no unanimity upon the subject in the teachings of those recognized as learned in the doctrine of the church, the teaching of either of these doctrines is not a departure from the faith as understood in 1845, at the time church property was conveyed for the purposes of a church of that denomination.
    2. Kentucky Statutes, sections 320-322, inclusive, providing for the appointment of trustees by religious societies to hold the title to church property, and providing that in case of a schism or division “the trustees shall permit each party to use the church and appurtenances for divine worship a part of the time, proportioned to the members of each party,” do not apply where the church property is still held by the trustees or the -heirs of the trustees to whom the title was first conveyed or devised as a charity; and therefore,' where, in such a case, the majority ha(d control by the terms of the organization, and there was no right of appeal from their decision, their action .in expelling the minority from membership is binding on the courts, and the expelled members have no interest in the church property.
    3. Independent of statute, a committee appointed by a church for that purpose may bring suit to enjoin treápaases upon the church property.
    ROBERTSON & THOMAS, foe appellants.
    This is an action instituted in the Graves circuit court by the appellees who claim to be members of the Bethel Church in Graves county, and that they have been appointed a committee to sue for the use and benefit of the congregation. They allege that said congregation is the owner of a certain lot and house of worship situated thereon, and that the defendants, although former members thereof, had been .excommunicated from the church, and that they were wrongfully trespassing upon said property and holding the possession thereof from the appellees and prayed for an injunction restraining the appellant from exercising any control or authority over said property. The answer of appellants put in issue every material allegation of the petition, and in addition pleaded that the titile to the property was acquired by deed dated May 27, 1845, from L. B. Stark to certain trustees and members of Bethel Baptist Church, holding for the apostolic doctrine of personal election, predestination and baptism by immersion,' and that these appellees had ceased to believe in the doctrines of the church or to follow its practices or usages, and that the appellants and their associates were and are the' true Bethel Baptist church, and that in .church session the appellees had all- been turned out of the church for their heresy. "With this answer, appellants being in possession of the original deed to the property filed it and prayed to be quieted in the possession and title to the property, or if it could not be done, to be permitted to enjoy its joint use, or for a sale and division of the proceeds upon equitable principles.
    The reply mainly traverses • the affirmative allegations of the answer, and upon the issues a great amount of testimony has been taken.
    This church was harmonious for more than fifty years, and nothing occurred to disturb the peace of Zion until Elder R. S. Kirkland and his brother John Kirkland began to preach at this- church. Prom the beginning of their preaching dissensions arose, and culminated in an open breach and division of the church. The appellees and their associates 'who espouse the Kirkland side number' sixty-two, and the appellants and their ■associates who protest against the innovation in doctrines number twenty-nine.
    The open breach occurred' at regular service, and soon thereafter each faction met and proceeded /) turn the other faction out by the wholesale. Each faction claims to have turned out the other faction, not individually, but as a class. The proof shows that the church had no authority to deal with a member except in his individual capacity, and that none could be held responsible except for his own sins. ,
    The differences which divide -them is this: The Kirkland faction believes and teaches Limited Predestination, while appellants, Boaz faction, hold steadfastly to Absolute Predestination. Absolute Predestination means that “God foreknew and' predestinated all things whatsoever that may come to pass whether with reference to the material universe, or to the salvation of souls.”
    Limited Predestination, means that God predestined all things whatsoever which comes to pass with reference to the salvation of souls only; and it repudiates the idea that God predestined the happening of things in the material world.
    After the schism each faction claimed to -be the true Bethel .Church, and when the messengers were sent to the Association it received the messengers from appellant’s faction, thereby recognizing it as the true church of God worshipping at Bethel. Afterwards the Kirkland faction joined the Philesie Association.
    Our contention is:
    
      First. The appellees, having departed from the faith of the church, are not entitled to any portion of the property.
    
      Second.. There is no contention that the appellants have departed from the faith; nor is it contended that they were expelled on account of immorality, and if the court should determine that the appellees had not abandoned the-original faith in any material or substantial* particular, what then are the property rights of the contending factions?
    AUTHORITIES CITED.
    1. These members of the church, although a minority, holding the true faith are entitled to the property. Smith v. Pedigo, Indiana, March 15, 1893. . ,
    2. A minority unless excluded for immorality are entitled to a portion of the use of the property. Kentucky Statutes, sec.
    
      322; Ranson v. Rogers, MSS. opinion, Oct. 1884, Boone circuit court, Shannon v. Frost, 3 B. Mon., 256; Hadden v. Chom. 8 B. Mon., 76; Gibson v. Armstrong, 7 B. Mon., 486: Kentucky Statutes, sec. 318, 320, 321, 322; 7 Dana, 193; 7 B. Mon., 484; 5 Bush, 403; Craegdaliq v.' Aikman, 2 Bligh, 529; Craegdalie v. Aikman, 1 Dow., 1 Atty. Geni., v. Pearson, 3 Mon., 353; Watson v.’ Jones, 13 Wall, 680; Schorr’s Appeal, 67 Pa. St., 138.
    D. G. PARK and H. J. MOORMAN, roe appellees.
    The questions involved in this appeal are:
    1. Have appellees the right as such committee to sue for the church and maintain the action, or if there is a defect of parties had it been waived by appellant’s course of action?
    2. Is the judgment of the lower court sustained by the evidence?
    3. Has any schism been alleged or proven? .
    4. Are the rights of the parties to be determined under the rules of the common law giving the successful parties the exclusive use of the church property, or under our statute dividing the property over a schism as in eases where the churches have elected or appointed trustees under the statutes?
    5. Do appellants constitute the church at Bethel because of any departure from the faith by appellees?
    (1.) The appointment of the committee was by the unanimous action of the church. Under this -appointment we contend this action can be maintained by the committee. Civil Code, sec. 25, and note thereto; Humphrey v. Burnside, 4 Bush, 222; Shannon v. Frost, 3 B. Mon., 261; Hadden v. Chorn, 8 B. Mon., 72; Cahell v. Bigger, 8 B. Mon., 213; Berryman v. Reese, 11 B. Mon., 288; Beatty v. Kurtz, 2 Peters, 566; Rose’s Notes (vol. 2) 878.
    (2.) We submit that each fact adjudged by the lower court is abundantly sustained by the proof in this record.
    A minority or seceding party can not destroy the identity of a religious society or church by claiming to- be, itself, the society or church. 8 B. Mon., 77; 3 B. Mon., 261; 11 B. Mon., 289. The only • exception to the rule is where the majority have departed from the original faith of the church and the minority hold to its true doctrine.
    But there was no departure from the faith by appellees, and this is clearly shown by the record.
    ADDITIONAL AUTHORITIES.
    Manuscript opinion, 1884, Ransom v. Rogers, 2 Statute Laws ■of Ky., Act of 1814, page 1347; -Revised Statutes, chap. 14, sec. 3, sub-sec. 1; Gen. Statutes, chap. 13, sec. 3, sub-sec. 1, Kentucky Statutes, sec. 32; Inglehart v. Rowe, 20 R., 823; 3 Ency., Brittanica, 356; Encyclopedia Religious Knowledge; Russell’s dLurch. History, 649, 650; London Confession of Faith, chap. 3, sec 1; chap. 4 sec. 2; chap. 5, sec. 2; chap. 6, sec. 1; chap. 9. secs. 1 to 5; chap. 11, sec. 5; chap. 15, secs. 2 to 5; .chap. 16, secs. 2 to 6.
   Opinion of the court by

JUDGE DURELLE —

Affirming.

In 1824- a Primitive Baptist Church called “Bethel Church” was organized in Graves county, and there'seems to have been no trouble in the church until the events which led to the present litigation. In February, 1845, the church resolved to move, and build a meeting house upon land to be donated by L. B. Stark. 'The deed for the land recites that Stark, for the great love he has for the Baptist cause, conveys the land in question by warranty deed to three persons named as commissioners of the Bethel church, and their successors, holding. forth the apostolic doctrine, to wit, personal election, predestination, baptism by immersion, etc.,- to have and to hold so long as they shall see cause to occupy the aforesaid lot as a church; and, if they remoyp, the land therein conveyed to revert to his heirs. Upon the organization an abstract of principles, rules of decorum, and a church covenant were adopted, and seem to have remained unchanged. The Bethel Church was originally a member of the Bethel Association. In October, 1891, sis churches belonging to'that association were granted letters of dismission, as they wished to organize a new association. A new organization was organized, called the “Philesic Association.” Bethel Church remained in the Bethel Association. The churches forming the Philesic Association had substantially the .same abstract of principles and rules of decorum as those in-use in Bethel Church. In October, 1894, at a meeting of the Bethel Association at the Church of Concord, petitionary letters of correspondence being called for, one was presented from the Philesic Association, and a motion that the Philesic Association be received into correspondence was lost. It is not material to consider whether there had been any dissension in the church before Elder R. S. Kirkland became pastor of the Bethel Church. Some four or five years before.the events under consideration, Elder R. S. Kirkland and his brother, John Y. Kirkland, began preaching in the church. ■ Eider Kirkland was a member of a church which belonged to the Philesic Association at the time he became pastor of Bethel Church. There had been some trouble between Elder Kirkland and Elder Boaz upon doctrinal points. At a church meeting on the Saturday before the fourth Sunday in October, 1894, it was agreed unanimously that the church was at peace, and would commune the next day, which was the regular communion Sunday; but, when preparation was made for communion after service on Sunday, Mr. Cavender, a member of the church, stated that the church was not in condition to commune. A committee was appointed to investigate the reason why communion services should not be held. At a meeting held' on the Saturday before the fourth Sunday in November, the committee reported “that the reason that the church could not commune "was that some of the members thought that it was not order for the church to commune with members of the Philesic Association, Bethel Church being a member of the Bethel Association, and these two associations not being in correspondence, and the pastor, R. S. Kirkland, being a member of a church in the Philesic Association.” A motion to refer the point of order -to the church was carried by a large majority. All of the members present appear to have participated. It was voted by a large majority of the church that, notwithstanding this objection, it was in order for the church to commune. Some eighteen of the members who had voted in the negative refused to abide by the action of the church or commune. After laboring with the minority, the majority — some forty-five in number — adopted a motion preferring charges against the eighteen for treating the church with contempt and for breaking the church covenant.' Section 8 of the rules of decorum provides: “A majority shall govern in all cases, except in reception and dismission of members. In this case a unanimity is necessary, which shall be sought for by forbearance and labor in love and tenderness, which ought to terminate in submission to the majority in the fear of God.” The church covenant contains a stipulation: “To be governed by proper discipline agreeable to God’s word, . and not absent ourselves from the Lord’s supper without a lawful excuse, . . . and not irregularly to depart from the fellowship of .the church.” The eighteen members who had refused to abide the decision of the majority were thereupon, by a unanimous vote of those voting, excluded from the church. Some or all of them appear to have declared nonfellowship with the doctrine which they claimed had been preached in that church by Elder Kirkland. Whether this was before or after the vote of exclusion is a matter of conflict, and is not particularly material. They 'appear to have organized as a church, obtained a church book, and adopted a vote excluding from the church the majority who had theretofore excluded them. The minority appear to have had possession of the key to the church. The majority changed the lock. It was claimed that the minority used an axe in obtaining entrance. The majority appointed a committee to institute proceedings to put a stop to what they considered trespasses upon the church property. That committee instituted this suit to enjoin the appellants from further interference, claiming that appellees — the majority — were the Bethel Church. The minority answered, denying the material averments of the petition; claiming that the majority had ceased to believe in the doctrines held by the church at the date the property was acquired, or to follow its practices or usages; that the minority and their as- ' sociates were the true Bethel Primitive Baptist Church, and that in church .session they had excluded the majority for their heresy. They prayed to the quieted in their title and possession; or, if that could not be done, for a sale and division of the property. It will be observed that neither party to the controversy set up any claim that there was a schism in the church. The original trustees were all dead, and no trustees had ever been appointed under the statutes.

An immense mass of testimony was taken upon the various doctrinal points, in which it was claimed there had been a departure upon the part of the majority from the true principles of the Primitive Baptist Church; 'especially the doctrine upon the subject of predestination. The majority, 'or Kirkland faction, believe and teach limited predestination; while the minority, or Boaz faction, hold steadfastly to absolute predestination. As' stated in the brief of counsel for the minority^ the distinction is this: “Absolute predestination means that ‘God foreknew and predestined all things whatsover that may come to pass, whether with reference to the material universe or the salvation of souls,’ — that is, God predestinated all things which happen. He foreknew and predestinated that President McKinley should be assassinated in Buffalo, and that your honors should sit in judgment in this settlement of the rights of these litigants; as well as he predestinated who should or should not be saved in heaven. Limited predestination means that God( predestinated all things whatsoever which may come to • pass with reference to the salvation of souls only, and it repudiates the idea that God predestinated the happening of things in this material world.” The weight of the testimony upon this question seems to be that both these doctrines were taught, in substance, in churches of good standing in the associations of the Primitive Baptist Church, and that' there was no such unanimity upon the subject in the various authorities cited, or in the teachings of those recognized as learned in the doctrine of the church, as would justify us in holding that there had been, by either the majority or the minority, a departure from the faith as understood at the time the church property was conveyed for the purposes of Bethel Church, holding forth the apostolic doctrine, to wit, personal election, predestination, baptism by immersion, etc. So the trial court adjudged, and awarded an injunction against the minority interfering in any manner with the majority in the exclusive use of the property as a church.

After the acts of exclusion upon each side, it is claimed that the Bethel Association declined to hold correspondence with Bethel Church as managed by the majority, but recognized the church organized by the minority as the Bethel Church. On the other hand, it appears from the overwhelming testimony upon both sides that each Primitive Baptist Church is complete in itself; has power to choose its own ministers, and adopt its own rules and regulations; that it is in fact a little republic, and from the judgment of the majority, there is no appeal. This statement is, of .course, subject to the limitation, as to property rights, that, if there has been radical departure from the doctrine for which the charitable use was established, the courts will intervene for the protection of the use in accordance with the terms of the grant. This limitation, as we have seen, does not apply in this case. It follows, therefore, that as appellees were undoubtedly the majority, undoubtedly excluded appellants, the minority, from membership in the church, and as, by the terms of the organization, the majority had control, and their decision is unappealable, the courts^ can not intervene; unless the case comes within the act of 1814 (2 Morehead & B., Kentucky Statutes, 1347), as carried through the various revisions of the statutes-, and substantially re-enacted in Kentucky Statutes, section 320 et seq. The purpose and effect of that statute is perhaps nowhere better stated than in the opinion by Chief Justice Robertson in Shannon v. Frost, 3 B. Mon., 256: “After a careful examination of this statute, we concur with the court below in the opinion that it has no application to or bearing on the case now before us. The chief object of the enactment seems to have been to prescribe a mode of transmitting to new trustees the legal title to church property after the death or removal of the trustees to whom it had been originally conveyed, and to vest such appointees with all the powers of their predecessors, qualified, as to the former, by the provisos. The act does not, in either letter or purpose, apply to -a church or the trustees of a church, when the church property is still held by the trustees or the heirs of the trustees to whom the title was first conveyed or devised as a charity.” To the same effect, see the opinion of Judge Breck in Hadden v. Chorn, 8 B. Mon., 78, and that of Judge Simpson in Berryman v. Reese, 11 B. Mon., 287. This doctrine was expressly recognized by Judge Pryor in hi si opinion in Ransom v. Rogers (Oct. 2, 1881), the syllabus of which is given in 6 Ky. Law Rep., 290, though in that case it was held that the church, by its voluntary action, had undertaken to act under chapter 13 of the General Statutes, and had thereby become subject to the conditions expressed in the act. As the statute does not apply, the conclusion stated by Judge Robertson in the case of Shannon v. Frost, supra, — a case strikingly similar in many respects to the case at bar, — is completely applicable: This court, having no ecclesiastical jurisdiction, can not revise or question ordinary acts of church discipline oir 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 these we must decide as we do all other civil controversies brought to this tribunal for ultimate decision. We can not 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 the church. We must take the fact of expulsion as conclusive proof that the persons expelled are not now members of the repudiating church; for, whether right or wrong, the act of excommunication must, as to the fact of membership, be law to this court. For every judicial purpose in this case, therefore, we must consider, the persons who were expelled by a vote of the church as no longer members of that church, or entitled to any rights or privileges incidental to or resulting from membership therein. As the conveyance from Crittenden was to the use of the Baptist Church as an organized body of professing Christians in Frankfort, every member of that church has a beneficial interest in the property thus conveyed sc long as he or she shall continue to be a member, but no longer. It is only as a constituent element of the aggregated body or church than any person can acquire or hold, as a oestm que trust, any interest in the property thus dedicated, to that church. Curd v. Wallace, 7 Dana, 195, 32 Am. Dec., 85. Such is the effect of this conveyance to congregational uses, and such the civil law of bur State; and upon this foundation alone must our decisions rest. The judicial eye of the civil authority of this land of religious liberty can not penetrate the veil of the church, nor can the arm of this court either rend or touch that veil for the forbidden purpose of vindicating the alleged wrongs of the excluded members. When they became members, they did so on the condition of continuing or not, as themselves and their church might determine. In that respect they voluntarily subjected themselves to the ecclesiastical power, and can not invoke the supervision or control of that jurisdiction by this or any other civil tribunal.” See, also, Gibson v. Armstrong, 7 B. Mon., 481; Haddon v. Chorn, 8 B. Mon., 75; Cahill v. Bigger, Id., 213; Berryman v. Reese, 11 B. Mon., 287; and Iglehart v. Rowe (20 R., 821) 47 S. W., 575. See, also, the elaborate opinion of Judge Lurton, March 5, 1892, in the Primitive Baptist Church' case of Nance v. Busby (Tenn. Sup.), 18 S. W, 874. That the action can be maintained by the committee is, we think, clear, notwithstanding the apparent appeal of the act of 1835 (Loughborough, Kentucky Statutes, p. 499) authorizing the appointment of a committee for.such purpose; for this right is recognized to exist, independent of the statute of 1835, in Berryman v. Reese, 11 B. Mon., 288, and in Haddon v. Chorn, supra, citing Beatty v. Kurtz, 2 Pet., 566, 7 L. Ed., 521.

For the reasons given, the judgment is affirmed.  