Master v. Second Parish of Portland, 3692.

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: MAGRUDER, MAHONEY, and WOODBURY, Circuit
• Citation: Master v. Second Parish of Portland, 124 F.2d 622 (1st Cir. 1941)
• Decision Date: 24 December 1941
• Docket Number: No. 3692.,3692.
• Parties: MASTER et al. v. SECOND PARISH OF PORTLAND et al.

124 F.2d 622 (1941)

MASTER et al. v. SECOND PARISH OF PORTLAND et al.

No. 3692.

Circuit Court of Appeals, First Circuit.

December 24, 1941.

Clement F. Robinson, of Portland, Me. (Robinson & Richardson, Nathan W. Thompson, and Woodman, Skelton, Thompson & Chapman, all of Portland, Me., J. Claude Bedford, and George W. McKeag, both of Philadelphia, Pa., and Carl Zollman, of Milwaukee, Wis., on the brief), for appellants.

Frank P. Preti, of Portland, Me. (Frederic J. Laughlin, of Portland, Me., on the brief) for appellees.

Charles H. Blatchford, of Portland, Me., for Congregational-Christian Conference of Maine.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

MAGRUDER, Circuit Judge.

This controversy involves the question, who is entitled to use and occupy a certain church edifice and to select the minister to preach therein. It goes back to a so-called merger agreement in 1923 between a Congregational church and a Presbyterian church in Portland, Maine. The essential parties to the bill in equity, filed August 31, 1937, are various individuals as members and representatives of the large unincorporated organization known as the Presbyterian Church in the United States of America, as plaintiffs, and two Maine corporations as defendants, namely, the Second Parish in the Town of Portland and the First Presbyterian Society of Portland. The Congregational-Christian Conference of Maine was permitted to intervene as a defendant, but no further reference to this intervenor will be necessary. Jurisdiction was properly based on diversity of citizenship, within the rule stated in Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L. Ed. 673.

All the prayers of the bill for injunctive relief with respect to the church building and appurtenances and to the choice of a pastor were denied by decree of the district court dated April 10, 1941. The court, however, retained jurisdiction of the bill with a view to a possible accounting between the parties with reference to certain funds. The plaintiffs appeal from the foregoing decree.

We have been somewhat bewildered by the varying names by which many of the organizations concerned are described in the pleadings, in deeds of conveyance, in the testimony of witnesses, in the merger agreement itself; the district judge had ample provocation for his remark at one point: "Apparently none of these people knew what their names were."

The Presbyterian Church has been before the courts in many cases. Its organization and form of government are set forth in Watson v. Jones, 1871, 13 Wall. 679, 20 L.Ed. 666, and in Barkley v. Hayes, D.C.Mo.1913, 208 F. 319, affirmed sub nom. Duvall v. Synod, 8 Cir., 1915, 222 F. 669, affirmed sub nom. Shepard v. Barkley, 1918, 247 U.S. 1, 38 S.Ct. 422, 62 L.Ed. 939. The court below gave the following general description of its form of organization:

"The Presbyterian Church in the United States of America, hereinafter for convenience referred to as the plaintiff church, is a large, national, voluntary religious organization, comprising many churches of the Presbyterian denomination throughout the country, united in a common religious belief and form of worship, and having an organization which embraces the various churches and congregations, all of which are subject to the authority of other ecclesiastical bodies called judicatories, with the final authority vested in the General Assembly of the Presbyterian Church in the United States of America.

"The executive body of each church or congregation is called a Session, which seems to have the functions of an executive committee. It is composed of members of the congregation, elected by it, called ruling elders, together with the regularly installed pastor who is ex officio the moderator. To constitute a Session there must be at least one ruling elder and the pastor. The Session has charge of the spiritual welfare of the congregation and the right to control the use of the property of the church for the purposes of worship.

"Next above the Session in the organization is the Presbytery, consisting of all the ministers, — in number not less than five, — and one ruling elder from each congregation within a certain district. Subject to appeal, the Presbytery has jurisdiction over the churches in its district. The Session of any regular Presbyterian Church in Portland is subject to the authority of the Presbytery of Newburyport.

"The Synod, which exercises jurisdiction over the Presbyteries, is a convention of ministers and elders within a larger district.

"The General Assembly is the highest judicatory and represents in one body all the particular churches in the denomination. It consists of a delegation of ministers and elders from each Presbytery." 36 F.Supp. 918, 920.

With this as background, we proceed to a description of the two Portland congregations prior to their merger in 1923.

There was a Presbyterian church on Park Street, Portland, with a manse on Winslow Street. Legal title to these parcels of real estate was held by the First Presbyterian Society of Portland, a corporation. All persons who were communicants of the church and who contributed a minimum sum per year to its support were members of the said corporation. The corporation managed the property and business interests of the church subject to the "Form of Government" of the Presbyterian Church in the United States of America. The affairs of the corporation were entrusted to a Board of Trustees chosen by the members from their own number.

More important than the corporation was the religious or worshipping body at the Park Street Church, an unincorporated association known as the Park Street Presbyterian Church. Its executive body, called the Session, was elected by the members of the congregation, had charge of the spiritual affairs of the church and also authority over the uses to which the church buildings might be put, subject, however, to the control of the higher judicatories.

Under the Presbyterian system the First Presbyterian Society of Portland held legal title to the real estate but the whole beneficial interest therein belonged to the general church, not to the particular Park Street congregation. Subject to control of the higher judicatories the presbytery might dissolve or merge congregations within its jurisdiction. By paragraph IX of chapter XXVII of the "Form of Government" of the Presbyterian Church: "Whenever hereafter a particular church is formally dissolved by the presbytery, or has become extinct by reason of the dispersal of its members, the abandonment of its work, or other cause, such property as it may have, both real and personal, shall be held, used and applied for such uses, purposes and trusts as the presbytery may direct, limit and appoint, in conformity with the Constitution of the Presbyterian Church in the U.S.A."

The Congregational Church, the use and possession of which the plaintiffs are seeking to obtain by their present bill, is an imposing edifice on Congress Street, Portland, worth many times the value of the Park Street Church aforementioned. Prior to the merger of the two congregations, legal title to this church property was held by the Second Parish in the Town of Portland, which was incorporated in 1788 by act of the Massachusetts General Court as "a distinct and separate religious society * * * with all the privileges, powers and immunities which any parish in this Commonwealth is entitled to by law." Under the Congregational system this corporation was the dominant organization in the management of the affairs of the church, subject to no supervisory control by any hierarchy of church bodies as in the Presbyterian system. Its business was conducted by an elected body called the parish committee. Alongside this parish corporation was the worshipping body, also apparently incorporated, under the name of the Second Parish Congregational Church of Portland, Maine. It had a board of directors or "church trustees" with powers not clearly defined in the record.

In the year 1923 both the Presbyterian Church on Park Street and the Congregational Church on Congress Street were in financial difficulties. There was no minister at the Congregational Church, services had been suspended, and the church property was subject to debts. The Park Street Church was functioning with a pastor but its prospects of carrying on, from a financial standpoint, were not encouraging.

At a special meeting of the congregation of the Park Street Presbyterian Church on October 30, 1923, it was voted to make overtures to the Congregational Church "regarding a union of the two congregations." Committees representing the two churches met together and it appeared that the proposal met a favorable response from the Congregationalists. It was agreed that the united worshipping body would be Presbyterian, and that the Congress Street edifice would be used for worship. The Park Street Church was to be sold and after discharging the debts of the two churches from the proceeds, the balance was to be used for the benefit of the merged congregations. The Congregationalists insisted, however, that the Second Parish in the Town of Portland should retain its existing parish organization and name and also that in case of the future dissolution of the parish corporation and the abandonment of its property for church purposes, the proceeds of the sale of the same should be divided between the two denominations in proportion to their present valuation and contributions.

An agreement was drawn up and executed in the following terms:

"Memorandum of Agreement made and entered into in quadruplicate this twenty-seventh day of November A.D. 1923, by and between Second Parish of Portland, Maine, a corporation duly organized and existing under the Laws of the State of Maine, as party of the first part and Park Street Presbyterian Church, of Portland, Maine, also a corporation organized and existing under...