RS48 - 1926 #101
Chancery Division - Hazen, C.J.

John Ferguson et al.,
vs.
Lachlan H. MacLean et al.,

SUPREME COURT

CHANCERY DIVISION,

BETWEEN

( | John Ferguson, James G. Baisley, William A. McMaster and Walter J. Sutherland, as well for all persons having the same interest, to-wit: All communicants, pew holders and adherents of Saint James Presbyterian Church at Newcastle not concurring in or agreeing to Church Union under the Acts hereinafter mentioned, as for themselves,
( |
( | Plaintiffs;
( |
( | - and -
( |
( HAZEN C. J. | Lachlan H. MacLean, then Moderator of Session and Minister of the said Saint James Presbyterian Church in Newcastle hereinafter referred to as the said Church and now a joint Minister with Arthur W. Brown of the alleged Newcastle United Church of Canada hereinafter referred to as the Newcastle United Church; G. Gilmour Stothart then Clerk of Session and Treasurer of the Board of Trustees of the said Church; James M. Troy then Chairman of the said Board f Trustees of the said Church and now Chairman of the Board of Stewards of the said alleged Newcastle United Church; Allan A. MacTavish then Member of Session and Secretary of the Board of Trustees of the said Church; John Russell then Financial Secretary of the Board of Trustees of said Church and now Treasurer of the Board of Stewards of the said alleged the Newcastle United Church; James Stables then Chairman of Church and Grave Yard Committee of the said Board of Trustees of said Church and now Chairman of the Committee of the said Board of Stewards of said alleged Newcastle United Church having charge of the Church property in the Town of Newcastle; David Mutch then Chairman of the Lands Committee of the said Board of Trustees of the said Church and new Chairman of the Lands Committee of the said Board of Stewards of the said alleged Newcastle United Church; R. Waldo Crocker, Vice-Chairman of the said Board of Stewards of said alleged Newcastle United Church; H. Douglas Atkinson now Financial Secretary of the said Board of Stewards of said alleged Newcastle United Church; Thomas A. Clarke now Secretary of the said Board of Stewards and a member of the Session of the said alleged Newcastle United Church; John R. Allison now a member of the said alleged Session of said alleged Newcastle United Church and a Member of said Property Committee of the said Board of Stewards thereof; J. Robinson Allison now a Member of the said alleged Session and also a Member of the said Lands Committee of the said Board of Stewards of the said alleged Newcastle United Church; James Hierlihy now a Member of the said alleged Session of the said Newcastle United Church and a Member of the said Lands Committee of the said Board of Stewards, and Arthur W. Brown Joint Minister with the said Lachlan H. MacLean of the said alleged Newcastle United Church as well as personally as in their respective official capacities,
| Defendants.

In this case Dr. F. R. Taylor, K. C. and R. T. D. Aitken, Esquire, appeared for the plaintiffs, and P. J. Hughes, K. C. and G. W. Mason, K. C., of the Ontario Bar, to whom the usual courtesies were extended, for the defendants.

The action arises out of the Church Union Act of 1924, and was brought by the plaintiffs who represent what are spoken of as the continuing Presbyterians in Newcastle, against the defendants who represent some of the former Presbyterians of Newcastle, and the United Church at Newcastle.

The property in dispute consists of the St. James Church property acquired in 1824, a hall in the graveyard and a second church hall in King Street, Newcastle, the Manse where the minister lives, a glebe property, a woodland lot containing two or three hundred acres, the Glidden meadow in the Parish of North Esk, and other properties which are set out in the statement of claim, including 40 shares in the stock of the Bank of Nova Scotia, and other items of personal property and cash.

The annual report of St. James Church, Newcastle, for the year 1924, in which reference was made to the properties, was put in evidence as indicating the amount of income from them, and also a report of the United Church of Newcastle, deeds of the different properties and wills under which some of them were bequeathed to St. James Church were also put in evidence.

In opening the case Mr. Taylor, counsel for the plaintiffs said the question to be decided was as to whether or not the St. James Church property and all of these outlying pieces of land, two halls, the Bank of Nova Scotia stock, the cash and other assets of a wealthy congregation passed to the United Church of Canada or whether the continuing members of the Church are entitled to some if not the entire portion of the property. It was considered necessary by the plaintiffs to refer to the legislation with reference to St. James Church as they did not think the matter was entirely included within the walls (to use the expression of counsel) of the Dominion and Provincial Acts of 1924, and that by some of the sections of the 1924 Acts we are "thrown back" to the local position of the St. James Church. Even at the risk of undue length I think it desirable to refer to these Acts somewhat fully.

The first Act dealing with the church was passed in 1831 and is to be found in Vol. 3 of the Local and Private Statutes of New Brunswick, p. 376, being c. 11 of 1 William IV. It provides:

" | The Minister and Elders of the said Church, commonly called and known as the name of the "Kirk of Scotland", shall be deemed and taken to be in all Courts of law and equity the proprietors of the said parcel of land, instead of the said persons now having title thereto as aforesaid, and the said title to the said parcel of land shall henceforward be transferred to and vested in the said Ministers and Elders and their successors, forever, being so elected and appointed, and approved and licensed as aforesaid etc.

The next Act was passed in the following year (1832) 2 William IV c. 18, which says -

" | And whereas it appears to be the desire of the Members of the said Church in St. John, and of a large majority of the Churches now established in this Province in connection with the said Church of Scotland, to be incorporated in strict conformity with the forms and usages aforesaid, and to enable them to manage their temporal affairs in accordance therewith.

and provides, Sec. 7, p. 380 -

" | That the Ministers, Elders and Deacons and other officers of the said Church shall be elected, chosen and appointed, and have, hold, and exercise and enjoy their respective offices, according to the usages of the said Church of Scotland, except so far as the same may be altered or abridged by this Act.

Section 9 provides:

" | That the Trustees of the several and respective Churches already erected within this Province and also all Churches which may hereafter be erected, in connection with the established Church of Scotland shall, when elected, chosen and appointed in manner and form as directed by this Act, be bodies politic and corporate in deed and name, and shall have succession forever by the name of the Trustees of the said several and respective Churches etc

and then it provides that

" | all lands, tenements and hereditaments conveyed or to be conveyed to or for the use and benefit of the said Churches shall be vested in the said several and respective Corporations, as fully and absolutely to all intents and purposes as the lands and Churches mentioned in the third section of this Act are hereby vested in the said Trustees of St. Andrew's Church in the City of St. John.

In the following year, 1833, another Act was passed which is found at p. 381 of the Local and Private Statutes of New Brunswick, c. 15 of 3 William IV, which provides that

" | The said Trustees of St. Andrew's Church, and of the several and respective Churches already erected, and also of all other Churches which may hereafter be erected within this Province, in connection with the Church of Scotland, chosen and appointed in manner and form provided by the said Act, or the major part of them, assembled upon due notice publicly given, shall have full authority to sell, let, or hire the pews of the said Churches respectively, and let or hire for a term not exceeding twenty-one years the lands, tenements and hereditaments mentioned in the said last recited Act, or any other lands, tenements or hereditaments which shall or may come into their possession etc

and then continues:

" | nothing herein shall be construed to permit the said Trustees of the said Churches respectively to sell or dispose of the said lands, tenements and hereditaments or any part thereof, absolutely or for any greater estate than the term of twenty-one years.

The Act 14th Victoria, c. 9 at p. 391 of the Local and Private Statutes was considered by the plaintiffs as very important. Sec. 2 provides as follows:

" | The owners or proprietors of pews, and all male communicants of the full age of 21 years, in the several Churches erected or to be erected in this Province in connection with the Established Church of Scotland, shall on the first Wednesday in June, or within ten days thereafter, yearly and every year, assemble and meet together at their respective Churches, and then and there by a plurality of voices of the said pewholders and male communicants aforesaid then present, between the hours of twelve and three o'clock in the afternoon, elect and choose any number not exceeding twelve persons nor less than five, being owners and proprietors of pews as aforesaid, to be Trustees for the purposes of the said Act to which this is an amendment, who shall thereupon enter into the execution of their offices as such, and continue in the same one year and until other fit persons shall be chosen in their stead; provided always, that ownership or proprietorship of a pew shall not entitle more than one person to vote at any such election.

This Act is considered very important by the plaintiffs as the contention is that it gives the qualification for voting which was applicable at St. James Church at the time of the votes that were taken in connection with Church Union. Section 3 of the same chapter deals with cases where there is no proprietorship of pews and provides that where churches have no proprietary of pews and in all others that may hereafter arise it may be lawful for all male communicants and regular sitters in any such church to assemble at the time and in the manner aforesaid and elect from among themselves trustees as hereinbefore provided.

We now come to the Act of 1875, c. 48. Sec. 1 reads as follows:

" | All property, real or personal, now belonging to or held in trust for or to the use of any congregation heretofore and now connected with the Church of Scotland, whether the same shall have been organized under the Revised Statutes or under Deeds of Trust, or under Acts of Incorporation, or as Union, or as Joint Stock Churches, or otherwise howsoever, shall continue, on and after the consummation of said union to be possessed, held by, and shall be used for the benefit of the same congregation to the same extent as heretofore, after it shall have entered into such union.

It was stated at the hearing that this Act was passed by the Legislature at the request of Mr. Davidson (Hon. Allan A. Davidson, M. L. A.) who wished to preserve the rights of St. James Church and its property. Mr. Davidson was a member of St. James Church, Newcastle.

Section 6 of this Act provides that

" | Nothing in this Act contained shall abridge or take away the rights and privileges of any pewholder, or any other person or persons whomsoever, without just compensation being first made to such person or persons, to be ascertained, in case of disagreement, by arbitrators to be mutually chosen.

While the following section (7) provides that

" | The Act shall not be construed so as in any wise to repeal, alter, effect or vary any of the provisions in any special Act or Charter of Incorporation, or Deed of Trust, referring to any particular congregation, college, educational or other institution or Trust connected with the Church; but any additional rights or privileges conferred by this Act, shall be construed as supplementary to the provisions contained in any such special Act, Charter of Incorporation, or Deed of Trust.

In the same year an Act was passed with reference to the union of certain Presbyterian churches, c. 99 of 1875, the object of which was to enable Church Union to be consummated, but it is contended that c. 48 was passed with the express idea that the Presbyterian Church in Canada should have no interest whatever in congregational property. The argument stressed by counsel for the plaintiff was that the Act of 1875 was to prevent the Presbyterian Church of Canada having any interest reversionary or otherwise in congregational property.

The next Act that has any bearing and that but slightly I think with regard to the property in dispute is c. 84 of 8 Edward VII, 1908, p. 264 which is in relation to the Harkins property so-called and provides that the trustees of St. James Church may convey certain of the Harkins property to the School Board, and provides, Sec. 3, p. 267:

" | and all property and assets of every nature and kind, real, leasehold and personal, which are vested in or held by the said The Trustees of Saint James' Church, Newcastle, under or by virtue of the said trust (except the said Harkins' Academy Property to be conveyed as aforesaid), are hereby declared to be and are vested in the said The Trustees of Saint James' Church, Newcastle, their successors and assigns, for the use and benefit of the said Saint James' Church, Newcastle, forever, freed and discharged of and from the said trust in the said Will contained as aforesaid

This completes the chain of statutes of the New Brunswick Legislature with reference to St. James Church, some of which are important and other of which have little or no bearing upon the question in dispute.

I now come to the Church Union Act of 1924. I think it is clear as contained that down to this time the Presbyterian Church in Canada had no interest in any property of St. James Church, and that the property which is in dispute here was held entirely by that Church for that congregation under c. 48 of the Acts of 1875.

The Church Union Act (Provincial) is c. 59 of the Acts of 1924. Sec. 3 provides that

" | all property, real and personal, within this Province, belonging to or held in trust for or to the use of The Presbyterian Church in Canada, The Methodist Church, and The Congregational Churches, or belonging to or held in trust for or to the use of any corporation, board, committee, or other body, whether incorporated or unincorporated, created by or under the government or control of, or in connection with, any of the said churches, shall, upon the coming into force of this section be vested in The United Church, to be held, used and administered subject to the provisions of this Act, in accordance with the terms and provisions of the Basis of Union.

and the next section is

" | Subject to the provisions of section 6, hereof, all property, real and personal, within this Province, belonging to, or held by or in trust for or to the use of any congregation of any of the negotiating churches, shall from and after the coming into force of this section, be held, used and administered for the benefit of the same congregation as a part of The United Church .etc...

Section 6 is one of the sections to which special importance must be attached. It is

" | Any real or personal property belonging to or held by or in trust for or to the use of any congregation, whether a congregation of the negotiating churches or a congregation received into The United Church, after the coming into force of this section, solely for its own benefit, and in which the denomination to which such congregation belongs has no right or interest, reversionary or otherwise, shall not be subject to the provisions of Section 3 and 4 hereof or to the control of The United Church, unless and until any such congregation at a meeting thereof regularly called for the purpose shall consent that such provisions shall apply to any such property or a specified part thereof.

Now the contention of the plaintiffs is that there never has been a vote taken affecting the property of St. James Church as contemplated by Sec. 6 of the Act, and that the congregation has never at a meeting regularly called for the purpose consented that the provisions of Sec. 3 and 4 shall apply to the property of St. James Church. Apart from the contention to which I will refer hereafter that the votes at the several meetings that were called were illegal, the clear and definite contention is made that no vote was ever taken with reference to the property, or that a vote with reference to going into the Union was taken under Sec. 8 (hereafter quoted). The property it is claimed was purely congregational, i. e. held for the use of the congregation, and could only be taken over by the United Church if the congregation voted in favor of so doing. In other words, to complete the union and transfer all the property there would have to be two votes one for the union of the church, and the other for the transfer. If this is not the case I do not see what the meaning is to be attached to Sec. 6, and I have come to the conclusion that the property of St. James Church held for the use of the congregation of that church did not become transferred to the United Church as the preliminary of the consent of the congregation of St. James Church passed at a meeting thereof regularly called was not complied with. On this ground I am of opinion that the plaintiffs must succeed.

But there is also another ground urged by the plaintiffs with which I think, although I have come to the conclusion I have on the first point, I should also deal. In it there is a question of fact involved - the question being whether the meetings held in connection with Church Union and under the Church Union Act were illegal or otherwise. The contention of the plaintiffs is that the majority of the votes at the meeting or meetings that were held were against Union. Sec. 8 (a) of the Provincial Act is as follows:

" | Provided always, that if any congregation in connection or communion with any of the negotiating churches, shall, at a meeting of the congregation regularly called and held within six months after the coming into force of this section, decide by a majority of votes of the persons present at such meeting and entitled to vote thereat, not to concur in the said union of the said churches, then and in such case the property, real and personal, belonging to or held in trust for or to the use of such non-concurring congregation shall be held by the existing trustees, or other trustees elected by the congregation, for the sole benefit of said congregation . etc .

Now it is contended that the words "entitled to vote thereat" should be read as though they were followed by the words "in accordance with the laws of the Province of New Brunswick" bearing upon the particular congregation in this case St. James Church.

Sub-section b provides -

" | The persons entitled to vote under the provisions of the first clause of this section, shall be only those persons who are in full membership and whose names are on the roll of the church at the time of the coming into force of this section.

Section 10 of the Federal Act contains a somewhat similar provision:

" | (b) The persons entitled to vote under the provisions of the first clause of this section, shall be only those persons who are in full membership and whose names are on the roll of the church at the time of the passing of this Act etc

The Acts therefore regarding the qualification of voters under the local and federal acts are the same.

Now under the Acts with regard to St. James Church which were quoted in the early part of this judgement, the contention is made by plaintiffs' counsel that the people who were entitled to vote at St. James Church were male communicants and pewholders, and that no one else had any right whatever to vote in connection with Church Union. And the further contention is made that the persons in full membership are the male communicants and pewholders and that that does not include females or children.

Under the "Rules and Forms of Procedure of the Presbyterian Church in Canada" which was put in evidence it is stated under Rule 14 that -

" | All members in full communion, male and female, have the right to vote at all congregational meetings, and to them exclusively belongs the right of choosing ministers, elders and deacons.

It is contended that pewholders have a right to vote even though they are not communicants. This question of pewholders is one the facts in connection with which are not especially clear, but reading the whole of the evidence on the subject I gather that originally the expenses of the church were borne largely by the holders of pews through the payment of pew rents. The pews belonged to different members of the congregation subject to the payment of an annual rent, and could be transferred from one member of the congregation to another for a consideration. After a time this method of raising money for church purposes was found not to be satisfactory and a new method was adopted of securing funds by means of what is known as the envelope system, a system which is in use in many churches today. Most of the pewholders surrendered their pews and gave through the envelopes, but some of the congregation declined to do so and still held their pews paying the annual rentals that had been agreed upon. At the time the vote on Church Union was taken there were only a few of such pewholders, and the majority of them were in full membership in the church and had a right to vote. The pewholders who were not in full membership only numbered four or five and would not have affected the vote in view of the large majorities at both meetings that were in favor of Church Union.

Now the contention that there was a majority who voted not to concur cannot I think be supported by the evidence in the case. The Minister of the Church, Rev. Lachlan H. MacLean, testified that after the enabling Acts were passed it was understood they had to take a vote in order to vote the church out of Union, and knowing that the congregation was in the Union steps were taken to give opportunity to the people to vote it out if they so desired, and the Session prepared the communion roll and prepared a certified roll, and arranged to take the vote. It appears that the communicants' roll in the Presbyterian Church is supposed to be reviewed up to date every year before the Annual Report to the Church, and the Union coming on it was made up to the date of the 10th June, regarding the local vote, and a certified copy of members in good standing up to that date. This was done by the Session. The first vote was held on the 23rd June. Preliminary to that vote the Session of St. James Church met on June 21st and the minute of the meeting was put in evidence. It was decided to take the vote on Church Union on Monday evening June 29th at 8 o'clock in St. James Church, and a notice was read in the pulpits on June 21st and June 28th. The notice calling the meeting stated that the union of the Presbyterian Church in Canada, the Methodist Church and the Congregational Church became effective on the 10th day of June, 1925, and that under the provision of Sec. 8, c. 59 of the Statutes of New Brunswick, 1924, a meeting of the congregation would be held at St. James Hall on Monday the 29th day of June at the hour of eight o'clock P. M. for the purpose of deciding whether on not the congregation would concur in the Union. This notice was read in the church twice a day for two Sundays previous to the date of meeting, at the regular diets of worship. That would be on the 21st and the 28th of June. The meeting took place accordingly on the 29th. The Minister presided - scrutineers and a Secretary were appointed, and also a man to look after the list as the names of the communicants were called out. It had been decided that the vote should be taken by roll call "as that was the general custom of the Presbyterian Church in Canada as such." A list of those whose names were on the roll of the church was called out and the result was 87 to 25 in favor of remaining in the United Church of Canada and at the close a resolution was passed concurring in the Union as a congregation and the meeting came to a close. Subsequently a petition was presented to the Session asking for another meeting and election under the Dominion Act. This was signed by 28 persons who describe themselves as being in full membership. The majority of those signing the petition, judging from the names were women. The Session granted the request of the petitioners and ordered a second vote to be taken. It was announced in the same way as the first meeting had been and when the congregation met the Rector called the meeting to order and ascertained certain things, viz., the number of days and the hours they would like to vote during the two weeks that the ballot was to be held as prescribed by the Act. He then asked them in what way they wanted to vote, as this Act provided definitely for a vote by ballot, and he informed them they could have a ballot private or unsigned or a signed ballot, and that it was moved that there be a signed ballot, and this motion was accepted and carried. Then two returning officers were appointed who took charge of the voting. I was not furnished with the number of votes at this second election, but it appears that after it was decided to take a signed ballot the people who asked for the vote practically all went out and only two remained to vote, and the vote on the first night was 55 in favor of Church Union and 2 against it. The election extended over two weeks and as it was abundantly clear the vote was in favor of Church Union I did not think it necessary to delay proceedings by asking for further evidence on the point.

Now the contention is that women and children should not have been allowed to vote at either of these meetings. The persons who had a right to vote in my opinion, and I so find, were those who were in full membership and whose names were on the roll of the church at the time the section (8c) came into effect.

The question then arises as to what is meant by full membership. The evidence of the minister of the church was that members in full standing meant those received by the Session as having made a certain profession of faith in Jesus Christ and satisfied the Session that they were leading a Christian life and on that they were placed on the communicant roll - that is, a member in full standing, and that roll is what is called the roll of the church. All persons whose names were on that roll had the opportunity to vote if they were present. Nobody's name was refused that was on the roll and nobody was refused the right to vote, and the roll that was used was the roll that was in use in the Church on the 10th June, 1925.

The Rules and Forms of Procedure of the Presbyterian Church in Canada which was put into evidence provides, Rule 63, p. 18 -

" | Persons desiring to be received into full communion converse with the Minister and if convenient with the elder of the district in which they reside. The applicant is then reported to the Session and when satisfied of the applicant's knowledge of Divine Truth and of their Christian character and deportment the Session receives them into full membership and their names are added to the roll of communicants. The persons who have thus been admitted may be publicly asked to profess their faith * * * * Persons thus received are entitled to all the privileges of the church in connection with the congregation.

I find that the roll used at both elections contained the names of those who were in full membership at the time of the comint into force of the section referred to. Nothing has been advanced to convince me that if any of those who were in full membership were women or children they did not possess the right to vote, but that all communicants whether they were under the age of 21 years and whether male or female had a right to have their names upon the roll.

Reference was made to the word "adherents" as used in one of the Acts with reference to St. James Church, and Mr. MacLean said they were not recognized in voting in the Presbyterian Church in Canada. They are sometime permitted to vote, but never on the transfer of property nor in the calling of a minister or election of elders.

I have come to the conclusion that neither of the meetings, the one under the Local Act nor the one under the Federal Act were illegal. They were held in accordance with the law governing such elections and laid down in the Statutes, and on this point I think the plaintiff must fail.

Counsel for the plaintiff relied on a number of cases. The Free Church of Scotland vs. Overtoun, 1904, A.C. p. 515 which is the celebrated Free Church case which held that a minority had the right to keep all the church property while a majority wanted to go into Union with another Church. Henning vs. Trantnam, 1926, 2 D.L.R. p. 280; Lang vs. Purvis, 15 Eng. Rep. 541; Cameron vs. St. Luke's Presbyterian Congregation, 1927, 2 D.L.R. p. 760.

I do not think the first two cases have much applicability in the present instance. The decisions are based upon the fact that the Church in going into Union under consideration had changed its doctrine and that accordingly the property remained out of the union. No evidence has been presented in this case to the effect that the majority did not adhere to the religious principles of the Presbyterian Church or that the differences between those going into the Union and those non-concurring were of a religious character, and that those who concurred in the Union did not adhere to the religious principles of the original creators of the different trusts.

Cameron vs. St. Luke's Presbyterian Congregation, 1927, 2 D. L. R. p. 760 was a decision of the Supreme Court of Canada on appeal from a judgment of the Supreme Court of Nova Scotia. The case is not yet reported, but I have had the privilege of reading the judgments of the Judges of the Supreme Court. The facts in that case are rather remote from the facts in the case at bar. Here we have the case of a church that entered the Union and never went out. The Salt Springs case, so-called, was a case of a congregation that had not entered the United Church and subsequently did so. In the judgements in the Supreme Court of Canada on appeal there seems to be considerable difference of opinion among the Judges who constituted the Courts. As I read the judgement of the Chief Justice, if he is right in his view of the law it would appear that the proceedings are invalid, but the majority of the Court did not expressly adopt his view and Mr. Justice Duff dissented. The other members of the Court reached the same result, but by a method of reasoning which did not make it necessary for them to decide the main question.

Reference was made also during the argument to an Act of the Prince Edward Island Legislature by which provision was made for dealing with congregational property by a Commission, but as there is no legislation of like character in New Brunswick the action of the Prince Edward Island Legislature in dealing with Church Union cannot be of any assistance here.

The plaintiff must succeed on the first ground.

St. John, N. B.
April 30, 1929.