In The Supreme Court

OF CANADA

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Between

JOHN FERGUSON. et al, (Plaintiffs)
Appellants,

and

CHLAN H. MacLEAN, et al, (Defendants)
Respondents.

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RESPONDENTS FACTUM ON APPEAL
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PETER J. HUGHES,
Respondents' Solicitor.

ALLAN A. DAVIDSON, Esq., K.C.,
Appellants Solicitor.

In The Supreme Court
OF CANADA

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

BETWEEN John Ferguson, James G. Baisley, William A. McMaster and Walter Sutherland, as well for all persons having the same interest, to wit: All communicants, pewholders 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) Appellants,

AND

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 said Board of 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 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 now 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 personally as in their said respective official capacities. (Defendants) Respondents.

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RESPONDENTS FACTUM ON APPEAL
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ALLAN A. DAVIDSON, Esq., K. C.,
Appellants' Solicitor.

WILLIAM G. PUGSLEY, ESQ.,
Appellants' Agent.

PETER J. HUGHES,
Respondents' Solicitor.

J. LORN McDOUGALL,
Respondents' Agent.

In The Supreme Court
OF CANADA

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

BETWEEN John Ferguson, James G. Baisley, William A. McMaster and Walter Sutherland, as well for all persons having the same interest, to wit: All communicants, pewholders 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) Appellants,

AND

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 said Board of 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 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 now 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 personally as in their said respective official capacities. (Defendants) Respondents.

RESPONDENTS' FACTUM

PART I.
STATEMENT OF FACTS

Saint lames Presbyterian Church in Newcastle, N. B., was a congregation of the Presbyterian Church in Canada at the time of the coming into force of The United Church of Canada Act (Chapter 100, 1924), and by virtue of that Statute became part of The United Church of Canada. The Supplementary Statute in New Brunswick is Chapter 59 of 1924.

The congregation of Saint James Church by two separate votes decided to remain in The United Church. The Plaintiffs thereupon brought this action alleging that they were members of the said congregation and praying to have the said votes set aside and a declaration of nullity of the union made, and also amongst other things a declaration of the rights of the plaintiffs in the property and assets of the said Church, and a mandamas commanding the defendants to permit the plaintiffs to use the church and other church properties, and an injunction to restrain the defendants from occupying and using the same.

The case was tried before Hazen, C. J., who held that the said congregation had become part of The United Church and that the votes held by the congregation were properly held and that the congregation had thereby decided to remain in The United Church; but the learned Chief Justice held that it was necessary to hold a second vote under Section 6 of the New Brunswick Act in order to carry the congregational property into union along with the congregation, and because this vote had not been taken the learned Chief justice held that the plaintiffs were entitled to succeed in the action.

The defendants appealed from this decision to the Appeal Division of the Supreme Court of New Brunswick, and the plaintiffs took a cross-appeal on the question of the legality of the votes, and the Court of Appeal unanimously allowed the defendants' appeal and dismissed the cross-appeal, and directed that the action be dismissed with costs.

The plaintiffs now appeal from this decision.

PART II.

1. The Appellants claim that the votes taken by the congregation of the said Church were taken on an illegal list ; that there should have been a vote of the owners or proprietors of pews and of male communicants of the full age of twenty-one years, as mentioned in 14 Victoria Chapter 9 (Statutes of N. B. 1851).

The Respondents claim that the persons entitled to vote are those who were in full membership and whose names were on the roll of the Church, as mentioned in Section 8 (b) of The United Church of Canada Act (14 George V. (N. B.) Chapter 59) and 10 (b) of 14-15 George V. (Dom) Chapter 100).

2. The Appellants claim that if Saint James Presbyterian Church entered The United Church of Canada it did not retain its property.

The Respondents deny this.

3. The Appellants also claim that a second vote of the congregation was necessary to decide whether or not the congregational property should be held for the use of the congregation.

The Respondents deny this.

4. The Appellants also claim that they are entitled to the property of the congregation.

The Respondents deny that the Appellants have any right to said property.

5. The Respondents claim that no order effecting the property could be made in this suit, as the corporation holding the title to the property is not a party to the suit.

6. The Appellants alleged in the Court of Appeal that Section 29 of The United Church of Canada Act (N.B.) was invalid in that it was an attempt to delegate legislative powers to the Dominion.

The Respondents deny this.

PART III.
ARGUMENT

1. The Appellants contended on the trial and in the Court of Appeal that the vote taken by the congregation by which it was decided to remain in The United Church was improperly taken. Both the learned Chief Justice on the trial and the Court of Appeal rejected this claim and held that vote was properly taken. It is submitted that those decisions in so far as a question of fact was involved therein were according to the evidence, and in so far as the question was one of law were properly decided.

The Trustees of Saint James Presbyterian Church of Newcastle was a body Corporate and the congregation was a Presbyterian congregation connected or in communion with the Presbyterian Church in Canada. It therefore passed into The United Church of Canada on June 10th, 1925, by virtue Of The United Church of Canada Act.

By Section 3 (e) of that Act (Statutes of Dominion, 1924, Cap. 100)-

"'The Presbyterian Church in Canada' shall include............. all Presbyterian congregations separately incorporated under any Statute of the Dominion of Canada or of any Province thereof, and all congregations heretofore and now connected or in communion with the Presbyterian Church in Canada whether the same shall have been organized under the provision of any Statute or Deed of Trust or as union or joint stock churches or otherwise howsoever."

And by Section 4 (b) of the same Statute-

"The several corporations referred to in sub-sections (e), (f) and (g) of Section three hereof are hereby merged in The United Church."

The United Church of Canada Act was passed by the legislature of New Brunswick on the 17th day of April, 1924, and by the Parliament of Canada on the 19th day of July, 1924.

Sections 8 (a) and 8 (b) of the New Brunswick Act provided for the taking of the vote on the question of the congregation remaining in The United Church or not and are as follows:

"8 (a) 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........................................."

"(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 coming into force of this section."

Section 31 is as follows:

"This Act shall come into force on the first day upon which the whole of the Act of Incorporation shall be in force."

The whole of the Act of Incorporation came into force on June 10th, 1924, (Cap. 100, 1924 (Dom) Section 2).

By the provisions of Section 10 (a) of the Dominion Statute the vote in New Brunswick was required to be taken under the Provincial Act. That section provides-

"10 (a) If any congregation in connection or communion with any of the negotiating churches shall at a meeting of the congregation regularly called and held at any time within six months before the coming into force of this Act, or within the time limited by any Statute respecting The United Church passed by the Legislature of the Province in which the property of the congregation is situate, before such coming into force decide by a majority of votes of the persons present at such meeting and entitled to vote thereat, not to enter 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 remain unaffected by this Act........................................."

"(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. In any Province where by an Act of the Legislature respecting The United Church of Canada passed prior to the passing of this Act a different qualification for voting has been prescribed the qualification for voting under this section shall be as provided in such Act. In every other Province the persons so entitled to vote shall be those who by the constitution of the congregation if so provided or by the practice of the Church with which they are connected are entitled to vote at a meeting of the congregation on matters affecting the disposal of property."

A vote of the congregation was held on June 29th, 1925, and resulted in a vote of 87 to 25 in favor of remaining in The United Church (Case page 62, 1. 29 to Page 64 1. 3).

Some persons who were dissatisfied with the result petitioned for a vote by ballot to be held at a subsequent meeting. The Session of the Church ordered this vote to be taken (Case p. 66 1-20). The result was similar.

The above provisions of the Act were followed and those who were held entitled to vote were those on the communion roll of the Church as provided I)y The United Church of Canada Act (Case p. 68 1. 9 to p. 69 1. 6).

The Appellants contend that this vote should not have been by

"persons in full membership and whose names are on the roll of the church," but by "the owners or proprietors of pews and of male communicants of the full age of twenty-one years."

They base this contention upon a Statute of New Brunswick 14 Victoria 1851, Chapter 9, Section 2 (Local and Private Acts of N. B. 1855, page 391). That section is as follows:

"2. The owners or proprietors of pews and all male communicants of the full age of twenty-one years in the several churches erected or to be erected in this Province in connexion 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 office as such and continue in the same one year and until other fit persons shall be chosen in their stead ; provided always that the ownership or proprietorship of a pew shall not entitle more than one person to vote at any such election."

This Statute it is submitted refers only to the election of Trustees and has no application to the vote on Church Union. But if such a provision were applicable to such a vote then it must be held to be inconsistent with the provisions of The United Church of Canada Act, and in that event it is repealed.

Section of that Act is as follows:

"30. All Acts and portions of Acts of the Legislature of this Province inconsistent with the provisions of this Act are hereby repealed in so far as may be necessary to give full effect to this Act."

It would be impossible for the provisions of The United Church of Canada Act to have "full force and effect" if the Appellants contention were given effect to. That Act provides that-

"only those persons who are in full membership and whose names are on the roll of the Church at the time of coming into force of this section" shall be entitled to vote.

These were the persons who did vote. Appellants contend that the right to vote should be limited to male communicants of the full age of twenty-one years and be extended to owners and proprietors of pews whether they were communicants and on the roll of the church or not. By this means female communicants would be deprived of the right to vote, although they are in full membership and on the roll of the church.

Trustees in connection with Presbyterian Churches who were to be elected by pewholders were to manage the temporal affairs of the church-not the spiritual. But the tendency of later legislation was to modify that qualification also. In 1907 an Act was passed entitled "An Act respecting Presbyterian Churches in the Province of New Brunswick" (Cap. 62). This Act makes provision for the incorporation of all Presbyterian Churches in New Brunswick. By Section 3 it is provided that every congregation in the Province of New Brunswick shall have a Board of Trustees whose duties shall be to manage the property and the temporal and secular business and affairs of the Church. Section 4 provides:

"4. The Board of Trustees shall be elected as follows:

(a) Every member of the congregation being eighteen years of age and upwards and who is a communicant of the Church and in good standing in the church shall have a vote for the election of said Board of Trustees.

(b) The adherents of any Church who are of the age of eighteen years and upwards and who have contributed a sum of money not less than Five Dollars to the funds and support of said congregation during the year immediately preceding the year in and for which the election may be held as aforesaid; such Five Dollars being contributed in such a manner as to be entered in the congregation's accounts, with the name of the adherent so contributing, shall have a vote for the election of said Board of Trustees."

When The United Church Act was passed the qualification for voting was not defined as being a pewholder or an adherent to the church, but that right was given to persons in full membership and whose names were on the roll of the church. This was the list used in voting in this case.

It is therefore submitted that the decision of both Courts in this respect is correct.

2 and 3. The Appellants claim that if Saint James Church entered The United Church it did not retain its property. In other words that it forfeited its property as a result of union; or that a second vote was necessary to declare whether or not the property of the congregation be retained for its use.

The Presbyterian Church in Canada, the Methodist Church and the Congregational Churches of Canada, entered into an agreement by which they should become joined together as The United Church of Canada. The basis of union is set out in Schedule "A" to The United Church of Canada Act (Chapter 100, 1924, Dom.). It is declared by Section 28 of the Act that-

"28. Notwithstanding anything in this Act contained it is hereby declared:

(a) That the said Union of the negotiating churches has been formed by the free and independent action of the said churches through their governing bodies and in accordance with their respective constitutions and that this Act has been passed at the request of the said churches in order to incorporate The United Church, and to make necessary provision with respect to the property of the negotiating churches and the other matters dealt with by this Act."

The intent was that each of the uniting churches should enter this union as a complete organization; that while the new body should thus have the united strength of all the component churches, yet each church should retain its identity (preamble to Dom, Act).

The Statutes in question were sought and passed to effect this purpose. The form which the legislation took was that all the congregations of the several uniting churches, in so far as New Brunswick was concerned, should pass with the church to which they belonged into The United Church ; but each congregation was given the right to vote itself out of Union if it so desired.

By Section 2 of The United Church of Canada Act (Chapter 100, 1924 (Dom) it was provided that the Act, with the exception of the section concerning the vote on union should come into force on June 10th, 1925. By Section 4 (a) it was provided that the union of the Presbyterian Church in Canada, the Methodist Church and the Congregational Churches should become effective on the said date; and the said churches as so united were constituted a body corporate under the name of "The United Church of Canada." By Section 3, sub-section (e) the expression "The Presbyterian Church in Canada" when used in the Act includes "all Presbyterian congregations separately incorporated under an Statute of the Dominion of Canada or any Province thereof, and all congregations heretofore and now connected or in communion with the Presbyterian Church in Canada." By sub-section (b) of Section 4 all said corporations are merged in The United Church of Canada.

By Section 2 (e) of the New Brunswick Act the expression "The Presbyterian Church in Canada" has the same meaning when used in the New Brunswick Act.

It is submitted that it is inconceivable that the promoters of this legislation or the Legislature which passed it intended that a congregation should forfeit its property on entering the Union ; that the congregation as a corporate body should enter union and that nevertheless the property should remain outside. It is submitted that the intention was to effect a union of the existing churches as they then were; that it was intended that the various church properties should function after union as they had previously functioned. The properties held by a congregation are so held because they are deemed necessary to enable the congregation to perform its several functions, and consequently should necessarily go with the congregation to enable it to fulfill its purpose. To forfeit the congregational property would be to put the congregation in such a position that it could not carry out the manifest purposes of the union. It is submitted that the intent manifested all through the legislation is that the congregation and the congregational property should go into union and thereafter be dealt with as the majority of the congregation should decide. If more than fifty per cent of those entitled to vote should vote against remaining in The United Church the congregation as a congregation went out and they took with them all the property belonging to the congregation. If in such case a portion of the congregation took a different view and decided to remain in The United Church they had to form a new congregation and provide themselves with a place to worship. In exactly the same way if the vote was to stay in union the congregation remained in union and the property of the congregation stayed with it.

Section 3 of the Provincial Act and the corresponding Section 5 of the Dominion Act deal with the disposal of the general property of the several church organizations other than the congregations.

The sections of the New Brunswick Statute dealing particularly with the properties of the congregations are Sections 4, 6, and 8. They are as follows:

"4. 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 in the manner and upon the trusts and subject to the terms and provisions set forth in Schedule "A" to this Act and Schedule "B," to the Act of Incorporation, or in any amendment to said Schedule "B" made by any Act of the Parliament of Canada, and all property, real and personal, within this Province, thereafter acquired for or belonging to or held by or in trust for or to the use of any congregation of The United Church shall be held, used and administered for the benefit of the said congregation as a part of The United Church upon the said trusts and subject to the said terms ind provisions. Provided that any property, real or personal, held at the time of the coming into force of this section or thereafter acquired by devise, bequest, transfer or gift, in trust for any special use of any congregation, shall be held, used and administered in accordnace with the special trusts so declared in respect thereof, not being contrary to law or to any by-law, rule or regulation of The United Church, and that in the event of failure or partial failure of any of the said trusts, the said property, in the absence of any express provision for such event, may be held, used, administered or disposed of as may be provided by any by-law, rule or regulation made from time to time by The United Church."

"6. 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 Sections 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."

"8 (a) 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. Should such congregation decide in the manner aforesaid at any later time to enter the Union and become part of The United Church, then this Act shall apply to the congregation and all the property thereof from the date of such decision."

"(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 coming into force of this section."

"(c) "Congregation" in this section means a local church as mentioned in the basis of Union."

Sections 4 and 6 deal with the Properties of congregations which vote to remain in The United Church. Section 8 deals with the properties of congregations which vote to go out of Union. Section 4 deals with the use for which congregational property shall be held generally. Schedule "A" referred to in that section is the Model Deed which sets out the form in which church property is ordinarily to be held.

By paragraph one of said Schedule the property is to be held for the benefit of the congregation as the said congregation may direct. It is as follows:

"And it is hereby declared that the said 'Trustees and their successors or the Trustee or Trustees for the time being acting in the trusts herein shall hold the said lands upon the following trusts:

"1. For the use and benefit of the said church, charge, circuit, preaching station or congregation, as the case may be (hereinafter called the congregation) as a part of The United Church of Canada, as well for the site of a church, chapel, meeting house, school, manse, parsonage or minister's dwelling or other place for religious, charitable, educational, congregational or social purposes, glebe or burial ground, as the said congregation may direct, as for the support and maintenance of public worship, and the propagation of Christian knowledge, according to the doctrine, discipline, by-laws, rules and regulations of The United Church of Canada."

It is submitted that the property of a congregation on entering The United Church remains vested in Trustees for the use of the congregation. The congregational property will ordinarily be held under the Model deed ; and in that case The United Church as an organization has very limited jurisdiction over it : only such as is to be found in paragraphs 3, 6 and 9 of the Model Deed. The property is thus held by the Trustees for the congregation subject only to the provisions above mentioned.

The Appellants contend that because a special vote was not taken under Section 6 that the Appellants are entitled to take away from Saint James congregation the property belonging to the congregation. It is submitted that all that Section 6 does is to continue congregational property which was held solely for the congregation and in which the general organization had no interest just as it was : namely, solely for the same congregation in The United Church. There are no words to divest the corporation of its property or to give the property to some one else. Section 4 provides for the tenure and use of congregational property generally, subject only to the provisions of Section 6. Section 6 deals with a somewhat different tenure and it is submitted applies only to cases where the property is held by a congregation solely for its own benefit. It was never intended that when such a congregation decided to remain in Union it should forfeit its property, but it was intended that it should continue to hold its property just as it had held it before ; the property continued vested in the corporation or Trustees of the congregation without any change, unless the congregation voted for a change, namely, to have it placed under the Model Deed. It is submitted that is the only purport of Section 6. Any other other construction would mean that it was impossible for a congregation to hold property by any other method or for any other use than as laid down by the Model Deed.

By Section 6 the Act made provision for cases where there might be a desire for a different arrangement than that generally provided for. For instance, The Congregational Churches were from the nature of their church polity individualistic. They had no general church organization to hold property.

Such a congregation after the Union might prefer to continue to hold its property as it had previously held it. When these Congregational Churches went into Union the intention surely was that they should take their property with them and that they might hold it just as they had done previously, but the act gives an option to them that they might, if they so desire, vote to place their property under the Model Deed. If they did not so vote they held their property just as they had previously held it ; but in either event it was held for the use of the congregation that went into Union. This it is submitted is the meaning and purpose of Section 6.

It is submitted that the Appellants contention misconstrues the section. They contend that a congregation is required to vote to retain its property under penalty of having the property forfeited instead of merely voting to have the property already held for its use to be held under a different form of trust, but still for the use of the same congregation.

It is because the learned Chief Justice of New Brunswick held that the Saint James Presbyterian Congregation was required to take a second vote to retain its property that he directed judgment for the Plaintiffs in this suit. Such a construction of the Section would mean that although all the Congregational Churches went into Union none of them took their property with them. It is submitted that the proper construction is that in one case the title to the property is vested in the Trustees for the use of the congregation on the Trusts of the Model Deed ; in the other it is vested in the Trustees for the use of the same congregation, but not under the terms of the Model Deed.

See also judgment of Mr. Justice Duff, in Trustees of Saint Luke's vs. Cameron, 1929, S. C. R. 452, at page 461.

The meaning of the said Section 6 is made more clear when the history of the matter is considered. The Union was brought about by an agreement through the governing bodies of the negotiating churches. Section 28 of the Dominion Act so declares. The Act should therefore be construed so as to carry into effect the purposes of the agreement. No one will content that the negotiating churches intended to abandon their properties upon entering Union. The Committee representing the several churches prepared a Basis of Union which was agreed to by the Supreme Courts of the several Churches (Schedule "A" of the Dominion Act). The Basis of Union is confirmed by Section 26 of the Act and as far as polity and administration are concerned it is given the force of the Act itself.

An examination of the Basis of Union shows that this agreement did not contemplate the non-concurrence of any congregation and made no provision for any such case, yet paragraphs 6 and 7 of division 2 of the section dealing with polity correspond to Sections 4 and 6 of the New Brunswick Act and 6 and 8 of the Dominion Act. It is plain therefore that Section 6 of the New Brunswick Act was never intended by those who promoted the legislation to have a meaning which would deprive a congregation of its property because it entered The United Church.

Appellants contention is that a congregation entering The United Church cannot continue to hold property within the provisions of said Section 6 of the New Brunswick Act without taking a vote which would bring it under the Model Deed, and therefore under Section 4 of the Act.

Section 20 of the Act shows that this is not so. That Section is as follows:

"20 (a) Each Board of Trustees now or hereafter holding any property in trust for the use or benefit of any congregation in connection with The United Church referred to in Section 4 of this Act and their successors, shall be a body corporate by the name of the Trustees of The United Church of Canada (at the place where, etc......... ).......... and by that name shall hold the property heretofore held by them as Trustees and shall have the power and capacity of taking, holding and dealing with any property, real or personal, and all instruments requiring the seal thereof to be affixed thereto shall be executed by such officer or officers as may be authorized thereto by the said body corporate. Provided that in the exercise of such rights, powers and privileges the said body corporate shall be subject to the provisions of this Act and the trusts, terms and provisions set out in Schedule "A" hereto.............."

" (b) Where any Board of Trustees in this Section mentioned is already a body corporate, such body corporate shall continue under the existing name thereof or such name as the Board may adopt at a meeting called for considering a change of name, but such body corporate shall be subject to the proviso set out in the next preceding sub-section. The said proviso shall not, however, apply to any property within the provisions of Section 6 of this Act."

Therefore Trustees of congregations in The United Church may be holding property to which the provisions of Section 6 may be applicable. To apply those provisions to the present case: the Trustees of Saint James Church were incorporated previous to the time The United Church of Canada Act came into force. The Trustees continued by the same name to hold the property which they then held for the congregation ; the property would be held therefore subject to the Model Deed, as set out in the proviso in 20 (a), unless it falls within Section 6, in which case it shall be held by the Trustees free from the terms of such proviso.

But if the construction of Section 6 which is contended for by the Appellants be right it is submitted that it has no application to Saint James Church of Newcastle. The Trustees of Saint James Presbyterian Church of Newcastle was incorporated by Act of Assembly 1 William IV, Chapter 11, 1831 (Local and Private Acts N. B. 1855, Page 376).

In 1875 the Presbyterian Church in Canada was formed and the Act 38 Victoria, Chapter 99 (N. B. was passed concerning same and it provided that the property held by any Presbyterian Congregation should thenceforth be held for the benefit of the same congregation in connexion or communion with the united body under the name of The Presbyterian Church in Canada. Section 1 of said Act is as follows :

"1. As soon as the Union takes place all property, real or personal, within New Brunswick now belonging to or held in trust for or to the use of any congregation in connexion or communion with the Presbyterian Church of New Brunswick now united with the aforesaid Presbyterian Church of the Lower Provinces shall thenceforth be held, used and administered for the benefit of the same congregation in connexion or communion with the united body under the name of The Presbyterian Church in Canada."

In 1907 by 7 Edward V., Chapter 79 (N.B.) "The Board of Trustees of The Presbyterian Church In Canada, Eastern Section," was incorporated. Section 6 is as follows"

"6. All lands and premises which have been or shall hereafter at any time be held by any Trustee or Trustees for any congregation which shall have ceased to exist or has become disorganized shall vest in the said Board of Trustees in trust to sell the same and pay over the proceeds of the said sale to the Treasurer of the said Church for the benefit of the Home Mission scheme thereof or as may be otherwise determined by the said synod of the said Church."

It is submitted that that section gives the said Board a reversionary interest in the property of all Presbyterian congregations in New Brunswick arising in case any such congregation should cease to exist or become disorganized, in which case the proceeds of the sale of the property is to be used for the uses of the church in general. Although this right is one which arises only on contingency that does not deprive it of being a right or interest in the property. The Board of Trustees of The Presbyterian Church In Canada, Eastern Section, had an interest in the property belonging to St. James Presbyterian Church in Newcastle. That provision was in force in 1924 when the Church Union Act was passed, and therefore it is submitted that Section 6 of the Act has no application to the properties in question.

If the Appellants contention were well founded it would mean that the congregation should hold two elections one of which would seem to be without purpose. The congregation would be required to vote on the question of whether it should stay in The United Church or not. If it decided not to concur in Union the congregation went out and it took its property with it; but if it decided to stay in Union according to the Appellants' contention it should then hold another election to decide whether is should keep its property or whether it should abandon its property for the use of some other persons. No such intention appears in the Act and it is respectfully submitted that it is unreasonable to think that the Legislature ever intended that such a second election should be necessary. It is inconceivable that a congregation would decide to go into Union and at the same time decide to leave the congregational property outside. Therefore to provide for a second vote on that question would be to make an idle provision.

Under the Statute the property is to be held for the use of the same congregation after the Union is consummated as had the use of it before the Union (Sections 4 and 20 (a) ). Before the Union the property in question in this suit was vested in Saint James Presbyterian Church for the use of the congregation worshiping in that Church. Saint James Presbyterian congregation went into Union and by vote decided to remain in Union and is now in The United Church. The property in question must therefore be held for the use of the same congregation now in The United Church no matter under which Section of the Act it may be held. The Appellants' contention would deprive the congregation of the use of its property against the expressed provisions of the Statute and give the use to persons who are not of that congregation.

The Appellants are not seeking to enforce the trust for the benefit of Saint James congregation. They are seeking to compel the defendants to commit a breach of trust by using the said property for the benefit of a new congregation composed of some persons who withdrew from Saint James Congregation because that congregation decided to remain in The United Church. They do not attempt to say that this new congregation represents the corporation of Saint James Presbyterian Church of Newcastle, but they attempt to say that there was a breach of trust within the rule of the Free Church of Scotland Case ( 1904 A.C. 515).

The principle upon which that case was decided has no application here, for in this case the Statute provides that to enter The United Church is not a breach of trust and therefore that ground fails, and the learned Chief Justice found the fact against the plaintiffs in any event. (Case p. 94 1. 19 et seq.)

Section 13 is as follows:

"Where, prior to the coming into force of this Section, any existing trust has been created or declared in any manner whatsoever for any special purpose or object having regard to the teaching, preaching, or maintenance of any principles, doctrines or religious standards, or the support, assistance, or maintenance of any congregation or minister or charity, or for the furtherance of any religious, charitable, educational, congregation or social purpose in connection with any of the negotiating churches, such trust shall continue to exist and to be performed as nearly as may be for the like purposes or objects in connection with The United Church as the United Church may determine, and anything done in pursuance of the Act of Incorporation or of this Act shall not be deemed to be a breach of any such trust, but shall be deemed to be a compliance therewith and a performance thereof, and the entry of any congregation into The United Church shall not be deemed a change of its adherence or principles or doctrines or religious standards within the meaning of any such trust."

4. The Appellants claim that they are entitled to the property. It is submitted they have no foundation for that claim. The title to the property is vested in the incorporated body of Trustees. The Appellants do not claim to be that body. They therefore can show no claim to the property or to the use thereof unless they can show a breach of trust on the part of the Trustees in allowing Saint James congregation to use the property for church purposes. Under the provision of the Statute already quoted they cannot succeed in that.

5. It is submitted that no order ought to be made affecting the title or use of the property in question in this suit without the corporation which holds title to the property being a party to the suit and the corporation is not a party.

6. Section 29 of the New Brunswick Act is as follows:

"The provisions of the Act of Incorporation shall have full force and effect with respect to any property or civil rights within this Province."

In the Court below the Appellants argued that this section was invalid in that it is an attempted delegation of legislative powers to the Dominion.

It is submitted is is not such. In the divided jurisdiction between Dominion and Province it is an attempt to remove all manner of doubt by having both jurisdictions support the measure. But in any event it is submitted that all matters necessary for the decision of this suit are contained in Sections within the competence of Parliament and the legislature respectively.

Peter J. Hughes
Of Counsel with Respondent.

Fredericton, N. B.,
March 31, 1930.