Ferguson v. MacLean

Ferguson et al. v. MacLean et al.

New Brunswick Supreme Court, Appellate Division

Barry, C.J., K.B.D., White and Grimmer, J.J.

Judgment: November 22, 1929


Counsel: P. J. Hughes, K.C., to support appeal.

A. B. Gilbert, contra.

P. J. Hughes, K.C., on cross-appeal.

A. B. Gilbert, in reply.


Subject: Churches and Religious Institutions; Public

Churches and Religious Institutions --- Church union -- Property rights of non-concurring congregation.

Churches and Religious Institutions --- Church union.

Statutes --- Interpretation -- Particular words -- Technical words.


The United Church of Canada -- 14 Geo. V. 1924 (Dom.) ch. 100 -- 14 Geo. V. 1924 (N.B.) ch. 59 -- Intention of Acts -- Congregation voting to Enter Union -- Second Vote not Necessary to Vest Property in Union Congregation.

Held, on appeal, reversing Sir J. D. Hazen, Chief Justice, on this branch of the case, that the intention of the two Acts respecting the United Church of Canada, 14 Geo. V. 1924 (Dom.), ch. 100, 14 Geo. V. 1924 (N.B.), ch. 59 -- was to effect a union of the several Churches as they existed when the statutes became effective; that each should function after the Union as before and that the property held by each congregation for the purposes thereof should necessarily go with it to enable it to carry on its work, and that after a Church has voted to join the Union a second vote is not necessary in order to vest the property of the Church in the Union Congregation.

The United Church of Canada -- Saint James Presbyterian Church (Newcastle, N.B.) -- 7 Edw. VII, 1907 (N.B.) ch. 79, sec. 6 -- 14 Geo. V. 1924 (N.B.), ch. 59, sec. 6 -- Must be Read Together.

The congregation of Saint James Presbyterian Church (Newcastle, N.B.), being a congregation of "The Presbyterian Church of Canada" as such, it was legislated into and became merged in the United Church of Canada by virtue of 14 Geo. V. 1924 (Dom.), ch. 100, supplemented by 14 Geo. V, 1924 (N.B.), ch. 59. The Act 7 Edw. VII, 1907 (N.B.), ch. 79, being an Act to incorporate the Board of Trustees of the Presbyterian Church in Canada, Eastern Section, section 6 thereof must be read with section 6 of 14 Geo. V., 1924 (N.B.), ch. 59, and it describes and designates with sufficient clearness such a right vested in the United Church in the congregational property of St. James as would exclude that property from the operation of section 6 of 14 Geo. V., 1924 (N.B.), ch. 59, and no consent of the congregation regularly called for the purpose was necessary in order to vest the property of St. James congregation in the United Church of Canada.

The United Church of Canada -- St. James Presbyterian Church (Newcastle, N.B.) -- Voting on Church Union -- Who Entitled-to Vote -- Members in full Membership and whose Names appear on Roll of the Church.

Held, on appeal, affirming Sir J. D. Hazen, Chief Justice, that the members of the congregation of St. James Presbyterian Church (Newcastle, N.B.) who had a right to vote on the question of Church Union were those who were in full membership and whose names were on the roll of the Church at the time, sec. 8 (b) of 14 Geo. V. 1924 (N.B.), ch. 59 "The United Church of Canada Act," came into effect.

This is an appeal by the defendants from a judgment of Sir J. D. Hazen, Chief Justice, sitting in Chancery, in which he held that a second vote of the congregation of Saint James Presbyterian Church at Newcastle, N.B., was necessary in order to vest the property of the Church in the Union Congregation and because such second vote had not been taken the plaintiffs were entitled to succeed, that is to retain the congregational property for the use and benefit of the nonconcurring or continuing Presbyterians at Newcastle. The plaintiffs cross-appealed against a part of the judgment which held that persons who had a right to vote on the question of Church Union were those who were in full membership and who were on the roll of Saint James Presbyterian Church at the time section 8 (b) of 14 Geo. V., ch. 59 (N.B.) came into effect. The appeal was allowed with costs and the cross-appeal dismissed with costs.

1929. September 17th. P.J. Hughes, K.C., to support appeal.

There was error in the learned Judge's construction of "The United Church of Canada Act." It is inconceivable that the promoters of this legislation or the Legislature which passed it, intended that a congregation as a corporate body should enter the Union and that nevertheless its property should remain outside. 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.

In 1907 by 7 Edw. VII., ch. 79, "The Board of Trustees of the Presbyterian Church in Canada, Eastern Section, was incorporated. That Act was in force in 1924 when the Church Union Act was passed, and sec. 6 of same applies, and sec. 6 of the Church Union Act has no application to the properties in question. The learned Chief Justice apparently overlooked this legislation. Cameron v. St. Luke, Salt Springs (1927), 59 N.S.R. 272, [1927] S.C.R. 452; McLean v. Ballantyne (1928), 62 O.L.R. 443. The Statute carried the property in the Union, not the vote. The vote is to take the property out.

A. B. Gilbert, contra.

The construction of the United Church Acts contended for by the appellants was not contemplated either by Parliament or by the Legislature of the Province and if applied would do great injustice to the minorities of congregations whose trustees hold property "Solely for their own benefit and in which the denomination ... has no right or interest."

Section 6 of the New Brunswick Act is an exception to Section 4, and unless the whole of Section 6 is surplusage and meaningless, the legislature must be taken to have intended to except certain property from the operation of the Act. The only question therefore is whether the property of Saint James Church is "held solely for its own benefit and in which the denomination has no interest." If this question is answered in the affirmative it is clear that such property "shall not be subject to the provisions of section 4" unless the congregation "at a meeting thereof regularly called for the purpose shall consent that such provisions shall apply to such property." It is beyond dispute that in the case at bar no meeting was called for such a purpose and the congregation never gave such consent."

It is submitted that 7 Edw. VII., 1907, ch. 79, sec. 6 has no application. It contemplated the congregation "ceasing to exist or becoming disorganized" in a physical sense.

Section 6 of the United Church Act of Nova Scotia, which is the same as that of New Brunswick was given the same construction by Mellish, J., in Cameron v. Trustees of St. Luke Presbyterian Congregation (1927), 59 N.S.R. 272, as the learned Chief Justice gave it in the case at bar. This decision was affirmed by the Supreme Court of Canada [1929] S.C.R. 452. See also: Hennig v. Trautman (1926), 1 W.W.R. 912; Overtown v. Macalister, [1904] A.C. 515. The present Church Union Act is an attempt to get around this last decision by legislation.

In the present case, we contend that the Dominion Act could not bring Saint James Church, a provincial preconfederation corporation, into the Union Church. Now the Dominion Act purported to do the incorporation. There is no such corporation in New Brunswick as the United Church of Canada. The New Brunswick Act did not attempt to create such a corporation. This was a serious defect, because the provincial Legislature was the only Legislature which could do so. When the provincial legislation was passed, the Dominion legislation had not yet been passed. How could the provincial legislation then give property to a corporation which did not exist?

Court: -- Was this point raised in the Court below?

White, J.: -- We have held here that we would not consider points here that were not taken below.

Hughes, K.C.: -- Says point was not taken below.

Gilbert: -- I got the impression from Mr. Taylor that the point had been raised.

Barry, C.J., K.B.D.: -- If the point had been taken below, the Chief Justice would have had a chance to have given judgment on same.

On cross-appeal:

The learned trial Judge was in error: (1) In deciding that the qualification of voters and the voting in Saint James Church is governed by the Rules and Forms of Procedure of the Presbyterian Church in Canada. (2) In deciding that women and children were entitled to vote at the meetings of June 29th and July 25th, 1925, and that the votes at the said meetings were valid.

An established method of voting cannot be altered by implication. Re Strachan (1872), L.R. 7 Q.B. 463; Nairn v. University of St. Andrews, [1909] A.C. 147; Western Counties Rail Co. v. Windsor etc. (1882), 7 App. Cas. 178. None of the Statutes respecting the Presbyterian Church in Canada take away expressly the voting privileges of pewholders, nor make effective the Rules of Procedure of that Church as to voting in preference to the statutory and established rules of Saint James Church. Morris v. Mellin (1827), 6 B. & C. 446. For rule applicable to the interpretation of special and general Acts see: Garnett v. Bradley (1878), 3 App. Cas. 967; Ontario etc. Railway v. C.P.R. (1887), 14 O.R. 432.

The Federal Act did not have any bearing upon the property and civil rights of a church member in this province, for, as was pointed out by Haszard, M.R., in Re United Church, [1927] 2 D.L.R. 1169 at 1176, this is exclusively within the legislative sphere of the provincial legislation. Clearly the July vote of St. James Church under the Federal Act did not affect the rights of pewholders nor the property of the Church.

See also: In re Mabel French (1905), 37 N.B.R. 359; Chorlton v. Lings (1868), L.R. 4 C.P. 374; Beresford Hope v. Lady Sandhurst (1889), 23 Q.B.D. 79.

P. J. Hughes, K.C., on cross-appeal.

The question of whether a person is a pewholder or not has nothing to do with his right to vote on the question of Union. Those entitled to vote are those persons who are in full membership and whose names are on the roll of the Church and no others. Sec. 8 (b), 14 Geo. V., 1924, ch. 59. The election was held according to the provisions of this section and the Chief Justice was right in deciding that the election was properly held. On the question of voting see: Osborne v. Mulligan, 28 0.W.N. 40.

As to the legislation of New Brunswick being prior to the legislation of the Dominion. There was an agreement between the three congregations for union, and it was agreed that both Acts would be passed. The provincial Act was passed first but it only went into effect when the Dominion Act came into effect. If the Dominion Act had never come into force, the provincial Act would have remained inoperative.

A. B. Gilbert, in reply.

The following judgments were now delivered Barry, C.J., K.B.D.:

1 This is an appeal from that part of the judgment of the Chief Justice of New Brunswick, in the Chancery Division (May 18th, 1929) in which he held that a second vote of the congregation of Saint James Presbyterian Church at Newcastle in this Province (which will hereinafter be referred to shortly as Saint James Church) was necessary in order to vest the property of the Church in the Union congregation; and that because such second vote had not been taken, the plaintiffs were entitled to succeed -- that is, to retain the congregational property for the use and benefit of the non-concurring or continuing Presbyterians at Newcastle. Although successful on that branch of the case, the plaintiffs cross-appeal against that part of the same judgment in which they say, but say erroneously, that the learned Chief Justice holds that the qualification of voters and the voting in Saint James Church is governed by the Rules and Forms of Procedure of The Presbyterian Church in Canada, and that women and children were entitled to vote at the congregational meetings of June 29th and July 25th, 1925, and that the votes cast at those meetings were valid.

2 This is not a correct statement of what the learned trial Judge held. What he decided was that (I quote his own language): "The persons who had a right to vote, in my opinion, and I so find, were those who were" (adopting the language of sec. 8 (b) of 14 Geo. V., c. 59 (N.B.) "in full membership and whose names were on the roll of the church at the time the section (8 (a)) came into effect."

3 The action is brought in the names of four members of Saint James Church as well for themselves as for all persons having the same interest in the Church, that is to say, all communicants, pewholders and adherents of Saint James Church, not concurring in or agreeing to Church Union, against fourteen members of the Newcastle United Church personally and in their respective official characters. Five of the defendants were formerly members of Saint James Church when it was Presbyterian and held office therein, and now hold office in the United Church, two of the defendants held office in Saint James Church, when Presbyterian, but are without office in the Newcastle United Church, while the other seven defendants are officers of the United Church, without having had, so far as the evidence shows, any previous official connection with Saint James Church.

4 Neither the corporation created by "The United Church of Canada Act" (14- 15 Geo. V., c. 100 (Dom.)) nor the corporation of "The Trustees of Saint James Presbyterian Church, Newcastle," a body corporate and politic under and by virtue of the Act 2nd Wm. IV., c. 18 (3 L. and P. Stat. N.B., 378) and confirmed by subsequent legislation, is joined as a party to the action; and since the legal title to the property and temporalities of Saint James Church must rest in one or the other of those corporations, and because it is said they cannot be bound by a judgment pronounced in an action to which they are neither parties nor privies, it is objected by the defendants that the plaintiffs should not be permitted further to maintain the action, but that the same should be dismissed. This objection does not, however, seem to have been raised in the Court below, and since it was not raised there it would be profitless to speculate on what the result might have been had it been raised. Although it has been determined by high authority that the practice of raising a substantial claim for the first time at the hearing of an appeal is most objectionable and should be discouraged in every possible way: Atty.-Gen. for Canada v. Ritchie Contr. & Const. Co. (1915), 52 Can. S.C.R. 92; City of Vancouver v. Vancouver Lumber Co., [1911] A.C. 711-720; The "Tasmania" (1890), 15 App. Cas. 228; cases have occurred in this court where such a course has been permitted in order that complete justice might be done between the parties. Neither is the objection raised in the Statement of Defence, unless it can be said to be raised by the general plea:

The defendants will object that in point of law, the plaintiffs' Statement of Claim does not disclose any cause of action.

which I do not think it can. A general statement of this kind discloses no specific point of law to be debated; it conveys no information to the Court of the point to be determined; it is far too general. It is not, in my opinion, sufficient under the system of pleading that obtains under The Judicature Act to state in this general way an objection based on the non-joinder of parties. The objection should be stated specifically, so as to permit of an amendment by the joinder of the proper parties in case it be determined that the objection is sustainable. Besides, it is the policy of our rules of practice that where the decision of a point of law substantially disposes of the whole action, which might have been the case here, the question of law is to be set down for argument and disposed of before the trial of the action. The argument of the defendants, and it is not without its force, is that no useful purpose can be served by the continuance of an action, the result of which can have no binding effect upon which ever one of the corporations is found to be disentitled to the temporalities of the Saint James Church congregation. Inasmuch, however, as this appeal is, in my opinion, determinable on other and meritorious grounds, I do not think we should dispose of it upon a mere technicality, which would leave unanswered a question of the greatest importance to the Presbyterian body, both Unionist and non-concurring, at Newcastle, a question which may as well be met and answered here and now, as in another action with "The United Church of Canada" and "The Trustees of Saint James Presbyterian Church at Newcastle" joined as parties.

5 In 1831, the Act 1st Wm. IV., c. 11 (3 L. & P. Stat. of N.B. 376) was passed incorporating "The Minister and Elders of the Kirk of Scotland in the Town of Newcastle" for the purpose, inter alia, of holding gifts and grants of land and real estate for the use and benefit of the church. But this being considered contrary to the forms and usages of the Church of Scotland, which require the spiritual and the temporal affairs of the church to be kept separate and distinct, the corporations so formed were dissolved by subsequent legislation, and a new Board of Trustees to deal exclusively with the temporalities of the church set up in their stead. (2nd Wm. IV., c. 18) (3 L. & P. Star. N.B. 378). These Boards of Trustees, as I understand it, are simply holding corporations, in whom is vested the temporalities of the church, without having anything whatever to do with the spiritual affairs of their respective congregations.

6 In 1875, an Act of Union was passed, uniting the four denominations, The Canada Presbyterian Church, The Presbyterian Church of Canada in connection with the Church of Scotland, The Church of the Maritime Provinces in connection with the Church of Scotland, and The Presbyterian Church of the Lower Provinces, into one body or denomination of Christians under the name "The Presbyterian Church in Canada" and it was to this one united body or denomination that the congregation of Saint James Church belonged at the time of the larger union of 1924.

7 The congregation of Saint James Church being thus a congregation of "The Presbyterian Church in Canada," as such it was legislated into and became merged in "The United Church of Canada" by virtue of 14-15 Geo. V., c. 100 (Dom.) supplemented by 14 Geo. V., c. 59 (N.B.). Sections 3 and 4 of the latter Act provide:

3. Save as hereinafter provided, 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.

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 and 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 accordance 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.

8 Whether the real and personal property belonging to the congregation of Saint James Church became subject to the provisions of sections 3 and 4 of the New Brunswick Act depends upon whether the denomination as a whole to which the Saint James Church congregation belonged, that is "The Presbyterian Church in Canada" had, at the time of Union or has "any right or interest, reversionary or otherwise" in such congregational property. If that denomination had any such right -- and the right is not circumscribed in any way, it may be much or little, great or small -- then the congregational property of Saint James Church comes within the purview of sections 3 and 4 of the New Brunswick Act and passed into The United Church without any further act or vote of the congregation being required to effectuate that purpose.

9 It was upon the construction of section 6 of 14 Geo. V. ch. 59 (N.B.) that the learned Chief Justice held that the congregational property of Saint James Church did not become vested in the United Church, because a necessary preliminary, the consent of the congregation of Saint James Church, obtained at a meeting thereof regularly called for the purpose, was wanting. The section provides: --

6. The real and 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.

10 The question is had the denomination of "The Presbyterian Church in Canada," one of the negotiating denominations, and the denomination to which the congregation of Saint James Church belonged, any right or interest reversionary or otherwise in the congregational property of Saint James Church, and in my opinion, a proper construction of the Act 7th Edw. VII, ch. 79, sec. 6 (N.B.) shows that it had. That is an Act to incorporate the Board of Trustees of the Presbyterian Church in Canada, Eastern Section, and, curiously enough, it does not seem to have been brought to the attention of the learned Chief Justice at the hearing. Such, at any rate, I judge to be the case, for the Chief Justice does not refer to it in his judgment, and in my view of the case failure to mention it in the Court below was an unfortunate omission, because that Act contains, in my opinion, a provision which we cannot overlook but are obliged to consider in determining one of the questions arising in this controversy. The section to which I allude 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 Synod of the said church.

11 It will be observed that the proviso to section 4 of 14 Geo. V. ch. 59 (N.B.) contains a somewhat analogous provision, namely, that in the event of failure or partial failure of the special trusts upon which any congregational property is held, the property, in the absence of any express provision for such an event, may be held, used, administered and disposed of by The United Church. Lands and premises belonging to the congregation of Saint James Church at Newcastle were held by the Trustees of that church, a corporation created by 2 Wm. IV. ch. 18, sec. 9 (3 L. & P. Stat. N.B. 378) for the use of the congregation. And now by virtue of section 6 of the Act of 1907 above set out, should that congregation cease to exist or become disorganized, the congregational property vests "in the said Board of Trustees," i.e., "The Board of Trustees of the Presbyterian Church in Canada, Eastern Section," the corporation created by the first section of the same Act (7 Edw. VII. ch. 79). Should the congregation of Saint James Church cease to exist or become disorganized, either of which contingencies though perhaps remote, is not impossible, then its lands and premises become vested in the Board of Trustees of The Presbyterian Church in Canada created by the Act, and are to be disposed of as provided for in this section. That seems to me to be clear. Though neither of the contingencies mentioned may happen, still there is the right in case one of them does happen. Having such a right, The Presbyterian Church in Canada cannot be said to have no right or interest in the property of such congregation. A reversionary interest is a sufficient right or interest. A grantor's reversion in real property is, as we know, deemed an actual vested estate although the grantor is said to be entitled to and not to be seized of such an estate. Reading this section and section 6 of 14 Geo. V. c. 59 (N.B.) together and giving to the language employed its plain, ordinary and grammatical meaning, I am of the opinion that the language of section 6 of ch. 79, Acts of 1907, describes and designates wish sufficient clearness, such a right vested in the United Church in the congregational property of Saint James Church as would exclude that property from the operation of section 6 of "The United Church of Canada Act" (N.B.): and that no consent of the congregation regularly called for the purpose was or is necessary or requisite in order to vest the property of Saint James Church congregation in The United Church of Canada. The congregational property went with the congregation when the latter voted itself into the Union, or, perhaps it would be more correct to say when it declined to vote itself out of the Union, as the evidence clearly shows that it did. If this view of the case is to prevail, it follows that the judgment of the learned Chief Justice on this branch of the case must be reversed, and the legal title of the congregational property of Saint James Church declared to be in The United Church of Canada in trust for the use and benefit of the Newcastle congregation of that church.

12 Then, as to the cross-appeal. The plaintiff's grounds of appeal are, that the learned trial Judge was in error in deciding: -- (1) That the qualification of voters and the voting in Saint James Church is governed by the Rules and Forms of Procedure of The Presbyterian Church in Canada. As I have already pointed out, the trial judge did not so decide; and, (2) that women and children were entitled to vote at the meetings of June 29th and July 25th, 1925, and that the votes cast at the said meetings were valid. In their appeal the plaintiffs rely largely upon the Act 14 Vic. c. 9 (3 L. & P. Stat, of N.B. 391). The second section of which 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 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 or proprietors of pews as aforesaid, to be Trustees for the purposes of the said Act (2nd Wm. IV. ch. 18) 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, etc. ...

13 This Act was passed at a time when Saint James Church was connected with the Established Church of Scotland in this Province, and in the case of such churches as were connected with the Established Church of Scotland, but had no property of pews "male communicants and regular sitters" in the church, were given the right of voting at the election of Trustees (Sec. 2).

14 But this Act, as its terms imply, was designed for one and only one definite and specific purpose, namely the election of Trustees for the purposes set out in 2nd Wm. IV. c. 18 (3 L. & P. Stat. of N.B. 378), and does not in its scope embrace elections held for any other purpose. It has no general application. The persistence with which the plaintiffs insist upon this statute would be more to the point if the voting which they here impeach was voting at elections for the selection of trustees, which of course it was not. When, presumably with the congregation's assent, Saint James Church was legislated into The Presbyterian Church in Canada, it gave up its allegiance to The Established Church of Scotland and became from thenceforth allied with The Presbyterian Church in Canada, and remained so down to the time of Union. When Saint James Church became a part of The Presbyterian Church in Canada, it had, of course, to conform to the Rules and Forms of Procedure of the latter denomination. For it would produce an anomalous situation to require or to expect a congregation connected with one denomination, to be bound and governed by the rules and forms of procedure of another even although as between the two there might perhaps be but slight difference. It is therefore to the latter Act and to the Rules and Forms of Procedure of the Presbyterian Church in Canada and not to the procedure of the churches connected with The Established Church of Scotland as formulated in an Act passed seventy-eight years ago, that we have to look in order to ascertain the persons who, anterior to the Union, had the right to vote at congregational meetings of the Presbyterian Church in Canada. Rule 14 of that Church provides: --

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, etc.

15 Unless he was a member of the congregation in full communion, a pewholder as such had no right to vote; a member in full communion had the right to vote though not a pewholder. So, also, females and children under the age of twenty-one years, if in full communion, were not debarred as they were under the Act 14th Vic. c. 9. What constitutes a member in full communion has been fully explained by the evidence of the Reverend Lachlan H. MacLean, who was pastor of Saint James Church before the Union, and has since the Union, been the Unionist minister of the same church. This evidence has been so fully referred to in the judgment appealed from, as has also been the evidence in regard to the congregational meetings of Saint James Church, the qualifications of the voters, and the manner in which the vote was taken, that no necessity arises for a further reference to it here.

16 When the three negotiating churches agreed to unite and form one body or denomination, they had, of course, to find common ground as a basis of union. An electorate differing from the individual electorates of some of the negotiating churches was set up and a different qualification of voters prescribed to deal with such matters as should be brought before the congregations for determination. Section 8 (a) of 14 Geo. V., c. 59 (N.B.) provides -- and sec. 10 (a) of 14-15 Geo. V., c. 100 (Dom.) contains a similar provision:

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.

17 Then the Act proceeds to define the qualifications of the persons entitled to vote at the congregational meetings, as follows:

(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 19 of "The United Church of Canada Act" (Dom.) contains a similar provision. Here we have it clearly established, not only by the consent of the negotiating churches themselves, but by the Acts of both the Federal and Provincial Parliament that "only those persons who are in full membership and whose names are on the roll of the church" have the right to vote upon the question of concurrence, and it was only those persons who did vote and the only persons who were permitted to vote at the two meetings that were held to deal with the question of Union. It is scarcely correct to say, as it is argued here by the plaintiffs that the Act 14th Vic., c. 9 (N.B.) on which they rely as furnishing the qualification of voters, has never been repealed. As the qualification of voters as laid down in that Act differs materially from the qualification prescribed by 14 Geo. V., c. 59, the former is repealed by section 30 of the latter Act, which provides:

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.

18 I do not think that Rule 14 of the Rules and Forms of Procedure of the Presbyterian Church in Canada furnishes the criterion by which we are to determine the eligibility of the voters at the elections or meetings held upon the question of withdrawal from the Union, nor has the learned Chief Justice so held. The qualification of voters under that section of the Rules is "all members in full communion, male and female" while the persons entitled to vote under the first clause of section 8, 14 Geo. V., c. 59 (N.B.) are "only the 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 (8 (b))." So that in order to entitle members in full communion, male and female, to vote, they must, under the legislation which, in my opinion, must govern, be in full membership, and their names must be on the roll of the church. Pewholders, who were simply pewholders and nothing more, and did not possess the other necessary qualifications, that is, full membership and registration on the roll of the church, had no vote. In this the church was simply following the civil laws which require a revised and authenticated list of voters at all elections. Those not on the lists, speaking generally, have no vote. If, as is said by those who ought to know, and doubtless do know, to be the case, "full membership" and "full communion" are synonymous terms and mean practically the same thing, in order to entitle those in full membership to vote, their names must be on the roll of the church. And it is clear from the evidence and has been found as a fact that only those whose names were on the roll of the church were called upon and permitted to vote; that I think, is not disputed; their names were called from the roll of the church which was there at the time; and because members of the congregation in order to get their names on the roll of the church, had to be in full membership, or in full communion it follows that those who voted at both elections possessed the qualifications required by law.

19 I agree with the learned Chief Justice that the votes cast at the congregational meeting of the 29th of June, and the 25th of July, 1925, were legal and proper votes, and that the decision arrived at by the congregation at both of those meetings should be maintained. I think the plaintiffs' cross- appeal must be dismissed. The result is that the defendants's appeal is allowed with costs; the plaintiffs' cross-appeal is dismissed with costs.

White, J.:

20 I concur in the judgments of both my brother Barry, C.J., K.B.D., and Grimmer, J.

Grimmer, J.:

21 This is an appeal from a judgment of Hazen, C.J., sitting in Chancery. The plaintiffs allege they were members of the congregation of St. James Presbyterian Church in Newcastle, which was a congregation of the Presbyterian Church in Canada, but which church by virtue of the Act of Assembly, 1924, c. 100, as supplemented by the Act of Assembly of New Brunswick, 1924, c. 59, entered the Union and became a part of the United Church of Canada.

22 The real matter or substance of the suit is one of law, and turns upon the question of whether or not the said congregation having by a very substantial majority on a vote being taken as prescribed by law decided to remain in the Union, did it thereby forfeit the property owned by the Church or did it retain the right to the full and proper use thereof. After the said vote was taken the plaintiffs withdrew from the congregation and brought action, asking for:

(a) The setting aside of the alleged vote taken on or about the twenty-ninth day of June, A.D. 1925, in reference to the said Church and purporting to have been taken under the provisions of Chapter 59 of the Acts of the Legislative Assembly of New Brunswick 1924.

(b) The setting aside of the other alleged vote taken between the twenty-fifth day of July and the twelfth day of August, A.D. 1925, in reference to the said Church and purporting to have been taken under the provisions of Chapter 100 of the Statutes of Canada, 1924.

(c) A declaration of nullity of the alleged Union of the said Saint James Presbyterian Church and the Saint John's Methodist Church alleged to have taken place during the month of April, 1926, and that the said defendants Waldo Crocker, H. Douglas Atkinson, Thomas A. Clarke, John R. Allison, James Robinson Allison, James Hierlihy and Arthur W. Brown (all of whom assumed the several offices and duties hereinbefore set forth under the said alleged Act of Union) are meddlers and have wrongfully and illegally mixed in and interfered with and are continuing to mix in and interfere with the affairs and the property of the said Saint James Presbyterian Church.

(d) A declaration that the defendants herein held their several offices illegally and any acts done and performed by them in their several capacities as Ministers, Elders and Stewards, in connection with the property and assets of the said Saint James Presbyterian Church are illegal and null.

(e) A declaration as to the rights of the plaintiffs in the property and assets of the said Church.

(f) The prevention of waste thereto and the protection of the said property.

(g) Having an account taken of all the said property and assets, receipts and expenditures.

(h) A Mandamus commanding the defendants to suffer and permit the plaintiffs to use and enjoy the Church and the Church Buildings, lands and premises, emoluments, rents and profits, trust funds and other assets of the said Saint James Presbyterian Church.

(i) An injunction to restrain the defendants from occupying, using and enjoying the said Church and Church Buildings, lands and premises, emoluments, rents and profits, trust funds and other assets of the said Saint James Presbyterian Church.

(j) Mesne profits.

23 The learned trial Judge held the vote to remain in the United Church had been properly taken and in that respect the plaintiffs had failed, but he held also that under the provisions of Sec. 6 of the New Brunswick Act of 1924 herein called the Local Act, a second vote of the congregation was necessary in order to retain the property of the church, and as that had not been taken the plaintiffs were entitled to succeed on that ground and ordered judgment accordingly, the effect of which is to give to the plaintiffs, the non- concurring members of the congregation, the control and management at least, of all the property, real and personal, belonging to said Church, and from this judgment the defendants appeal upon the following grounds:

(1) There was error in the learned Judge's construction of "The United Church of Canada Act."

(2) The plaintiffs would have no right to the property which is the subject matter of this suit, even if a second vote were required to vest the property in the trustee for the congregation under the provisions of section 4 of the New Brunswick Act, Chapter 59, 1924.

(3) Saint James Presbyterian Church is not a party to this suit and an order affecting the property owned by that corporation could not be made in this suit.

(4) There was improper admission of evidence.

24 Shortly it may be said that three denominations comprising the Presbyterian Church in Canada, the Methodist Church and the Congregational Churches of this Province entered into an agreement by which they formed a union and became united under and by the title or name of the United Church in Canada. Legislation was obtained to perfect the agreement, and the statutes referred to were respectively passed, the basis of union being set out in Schedule "A" of the Dominion Act, 1924, c. 100. From the preamble to this statute it is found the intent was that each Church should enter the Union as a complete organization and while the new body would thus have the full strength of the United Churches yet each church should retain its identity and also that while all the congregations of the several uniting churches should pass with the church to which they severally belonged into the Union, still to any individual congregation was reserved the right not to concur therein if by a majority vote of the members thereof entitled to vote it so decided at a meeting legally called for the purpose of taking such vote. Section 2 of the Dominion Act cited fixes the date of the coming into force of the Act. Section 3 thereof defines and specifies the several bodies which were included in the term "the Presbyterian Church of Canada" and is as follows:

The Presbyterian Church in Canada shall include the Board of the Presbyterian Church in Canada, Halifax; the Board of Trustees of the Presbyterian Church in Canada; the Board of Trustees of the Presbyterian Church in Canada, eastern section; the Board of Trustees of the Century Church and Manse Fund of the Presbyterian Church in Canada Eastern Section; the Church and Manse Board of the Presbyterian Church in Canada; the Board of Trustees of the Presbytery of Montreal; the Board for the Management of the Temporalities Fund of the Presbyterian Church of Canada; the Trustees of the Ministers' Widows' and Orphans' Fund of the Synod in the Maritime Provinces of the Presbyterian Church in Canada; the Presbytery of Miramichi and 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 provisions of any statute or deed or trust or as union or as joint stock churches, or otherwise howsoever.

25 Section 2 of the Local Act is to the same effect, embracing all the several bodies named therein save the board of trustees of the Presbytery of Montreal and including that portion of the section commencing with the words "All Presbyterian Congregations in this Province."

26 The comprehensive scope of the language expressed therein and to which effect must be given makes it clear beyond doubt, if any ever existed, that St. James Church of Newcastle, the trustees of which are an incorporated body comes within the purview of the Act and subject thereto. Section 4(a) of the Dominion Act provides that the union of the three contracting bodies shall become effective under the name of the United Church of Canada on the same day the Act comes in force and the union thus becomes complete.

27 Section 3 of the Local Act with certain reservations provides that the property of said three churches shall be vested in the United Church, and sec. 4 provides that subject to the provisions of sec. 6 thereof --

All property real and personal within this Province belonging to or held 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' under this Act, and Schedule 'B' of the Act of Incorporation, or in any amendment to said Schedule 'B' made by any Act of Parliament of Canada, etc.

28 The first section of Schedule "A," which is called the Model Deed, declares that the trustees and their successors for the time being acting under the trusts herein shall hold the said lands --

(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, etc., 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, bylaws and regulations of the United Church of Canada.

29 From this legislation it is to me impossible to conceive or believe it was intended that a congregation by entering the Union should forfeit or lose its property, or that the congregation as a corporate body should enter the Union and its property remain behind or outside. Rather I am convinced it was intended and is manifested all through the respective legislation that the congregation and its property should enter the Union and the latter should thereafter be dealt with as a majority of the congregation should decide.

30 Section 8 of the Local Act provides that any congregation within six months after the coming into force of the Act may decide, and how, to withdraw from the Union if it decides by a majority vote of the persons present and entitled to vote at a meeting regularly called not to concur in the 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. At this meeting those entitled to vote are 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 the section. As stated Schedule "A" of the Local Act is called the Model Deed, and fully details how and in what form church property is ordinarily to be held: By paragraph (1), as shown, the property is held for the benefit of the congregation as it may direct and upon entering the Union remains vested in the trustees for this purpose. The only control or jurisdiction the United Church has over any congregational property under the provisions of the Model Deed is referred to in paragraph 3, 6 and 9 thereof.

31 Paragraph (3) provides that the trustees shall and will obey, perform and fulfill, etc., the lawful orders and directions respectively of the official Board of the said congregation, the Presbytery and Conference respectively, within whose bounds and under whose ecclesiastical jurisdiction the said congregation shall from time to time be and of the General Assembly of the United Church.

32 Paragraph (6) prevents the trustees from selling or mortgaging property without the consent of the Presbytery, and provides for the disposal of the proceeds of the sale or mortgaged funds, which sale is authorized under direction of the official board, and what shall become of the said proceeds in case the congregation shall cease to exist as an organized body; and (9) provides the number of said trustees shall not be less than three nor more than fifteen, and that the Presbytery under certain circumstances may fill vacancies in the trustee board to keep the same effective and capable of functioning, and also if at any time there shall cease to be an organized corporation entitled to the use, benefit and enjoyment of the said lands it shall be lawful at any time or times for the Presbytery to fill any vacancy to the boards of the trustees, and the said lands shall thenceforth be held subject to such trusts and for such purposes for the benefit of the United Church of Canada as the Conference may determine under the by-laws, rules and regulations of the General Council.

33 From this short reference to the Model Deed, which is very comprehensive in its terms, there seems to be ample authority to provide for, protect and administer the property of the several congregations entering the Union, unless its provisions are rendered inoperative and ineffective by the provisions of sec. 6 of the Local Act, which is referred to in sec. 4. This section is as follows:

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 until such congregation at a meeting thereof regularly called for the purpose shall consent that such provision shall apply to any such property or a specified part thereof.

34 I think the meaning or interpretation of this section is that it covers and applies to cases where the property is held by a congregation solely for its own benefit, and that it never was intended if in such a case the congregation decided to remain in the Union it should forfeit all right to its property, but rather that the property remained vested in the trustees or corporation unless the congregation voted to have its placed under the Model Deed. Thus provision was made for cases where a different arrangement from that generally prevailing was arranged for. So, for instance, it was provided that as the Congregational churches had no general church organization, and therefore no general organization could have any interest in the property held by or for any such congregation, that after the Union they might if they preferred hold and continue to hold their property as they had always held it. There is nothing whatever to establish, but, that when these congregations entered the Union it was intended they should take their property with them and hold, use and administer the same exactly as they had previously and ever done. The Act, however, gave them, or any individuals, or corporation, the privilege or perhaps rather the option, if they or it so desired, at a meeting regularly called for the purpose, to consent (necessarily by vote) that the provisions of sections 3 or 4 should apply to any such property or a specified part thereof, thus bringing the same under the provisions of the Model Deed. If any such vote was taken the property was held as previously, but in any event it was held for the use of the congregation going into the Union. If this view is correct then it necessarily follows that the learned trial Judge, and I say it with the greatest possible respect to his expressed opinion, misconceived the purpose of this section when he interpreted it to mean, and held it did mean, that it required a congregation to vote to retain its property, under penalty of having the same forfeited if it did not do so, or that having voted to enter the Union there must be a second vote to carry the property with the congregation, or in the words of the learned Chief Justice:

To complete the Union and transfer of the property there would have to be two votes, one for the union of the churches and the other for the transfer.

35 If his construction holds it means so far as the Congregational churches are concerned that although they all entered the Union none of them took their property with them. As I understand the section, the construction I place thereon is, that it means, the property is held for the use of the congregation in the United Church. In one case it is vested in the trustees for the use of the congregation under the trusts contained in the Model Deed as set out in Schedule "A" of the Local Act, and in the other it is vested in the local church corporation for the use of the same congregation.

36 Without referring to all the legislation affecting St. James Presbyterian Church of Newcastle, of which there is an abundance, I may say an exhibit in evidence states the congregation was organized in the year 1829. It was incorporated by the Act of Assembly 1 William IV 1831, c. 11, which was entitled "An Act to incorporate the Minister and Elders of the Kirk of Scotland in the Town of Newcastle and for the purposes therein mentioned." In the following year, 1832, by 2 William IV, c. 18, sec. 9, created the trustees of the churches already erected and of all churches thereafter erected in connection with the Church of Scotland, bodies politic and corporate, by the name of the trustees of the several and respective churches to which they respectively belong, and under this legislation the trustees of St. James Church functioned and were functioning at the time of the formation of the present Union. In 1875 by 39 Vic. c. 99, N.B. the Presbyterian Church in Canada was created, with which St. James Church became affiliated and in and by the said Act it was among other things provided that the property held by any Presbyterian congregation should thenceforth be held for the benefit of the same congregation in connection or communion with the United body under the name of the Presbyterian Church in Canada (Section 1). In the year 1907 by the Act of 7 Edward VII, ch. 79, the Board of Trustees of the Presbyterian Church in Canada, Eastern Section, was created. This Act was passed upon the petition and at the request of the Synod of the Maritime Provinces in connection with the Presbyterian Church in Canada, within whose jurisdiction was the said St. James Church.

37 Section (6) of this Act is as follows:

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.

38 This confers upon the board of trustees created thereby a reversionary interest in the property of all Presbyterian congregations in this Province arising in any case where a congregation ceases to exist or becomes disorganized. Now while this can only happen upon a contingency and as a matter of fact may never happen, still the right or interest in the property exists unless removed by subsequent legislation. The trustees named acquired and still possess an interest by this Act in the property belonging to St. James Church. This church might never cease to exist nor be disorganized, and the beneficial use of or in the lands might never arise, but in any event the legal right existed and still exists. This Act and the above section thereof was in force in 1924 when the Church Union Act became law, and notwithstanding the provisions of sec. 30 thereof, which repeals all acts and portions of acts of this Province inconsistent with the provisions thereof in so far as necessary to give full effect thereto, I am of the opinion it is still in full force and effect so far as sec. 6 thereof is concerned, and taking the two Acts together and considering the purpose intended to be served thereby, there is nothing inconsistent in the portion of the section under consideration, and the rights created under the said sec. 6 (1907) still exist. The learned Chief Justice must have overlooked this legislation, as there is no reference thereto or to any of its provisions to be found in his judgment, nor does it seem to have been pointed out to him, or called to his attention, and while he states at p. 6 thereof that sec. 6 of the Local Act is one to which special importance must be attached, I am, with the greatest respect, compelled as I view the legislation referred to by him herein, to dissent from his finding, and to assert from the conclusion it seems to me the legislation points to, that in my opinion the said last named section has not now and never had any application whatever to the property of St. James Church, and it was not necessary for a second vote to be taken to decide where the property of the church should go. In my opinion the intention of the two Union Acts was to effect a union of the several churches as they existed when the statute became effective; that each should function after the Union as before, and that the property held by each congregation for the purposes thereof should and must necessarily go with it to enable it still to carry on its work. Counsel for the defendant expressed the intention of the legislation referred to in what I think is very apt and suitable language and with which I fully agree when he said --

The Union was not like the junction of several streams of water to form a larger river in which the identity of the waters from the several streams was lost in the larger body, but rather it was like the strands of steel which retained their identity and individual characteristics and qualities although joined together to make a powerful cable.

39 I may also remark that by sec. 20, sub-sec. (a) of the Local Act, each board of trustees in existence when it became law is created a body corporate by the name of the trustees of the United Church of Canada (at the place where is situate the trust property or the church for the benefit of the congregation worshipping in which the property is held in trust, etc.), and by sub-sec. (b) when a body of trustees was already a corporate body it should continue to function under its existing name unless it adopted another, the effect of which is that so far as St. James Church is concerned, its trustees never ceased to function, nor was their authority as a body corporate in any way interfered with at any time during the period when the proceedings leading to the Union were being considered nor after they became effective.

40 As I have already said, I am of opinion the legislation which has been passed is comprehensive enough to effect the purpose that the several contracting parties had in view, and that it together with the very extensive repealing powers contained in sec. 30 of the Local Act, in part herein set out, should be applied as fully as may be necessary to give full and complete effect to both statutes. I have no shadow of doubt that by the statute the St. James Church entered the Union and the title to its property is now vested in its trustees for the congregation which so entered the Union, as the trust under which it was held was by law for that congregation. The plaintiffs did not concur in the Union but separated themselves from the congregation. There was no breach of trust on the part of the trustees or otherwise, and I can see no reason in law why the plaintiffs should therefore claim or be awarded the property held in trust for the benefit of the congregation, nor can I see anything to justify the claim that the congregation shall not still have the use and benefit of this property as the statute provides and as was the intention thereof.

41 The plaintiffs however cross-appealed against the learned Chief Justice's judgment whereby he found that the vote that was taken by the congregation referred to was duly and regularly held in accordance with the law governing such matters as laid down by statute. He has very fully and at considerable length dealt with the questions and discussed the section of the statute relating thereto, and I do not think at this stage it would serve any good purpose, nor could any such be effected by any further or extended discussion of the matter in this judgment, for very good reasons that already appear herein. I entirely agree and am in accord with the conclusion he reached in this respect.

42 The cross-appeal will be dismissed with costs and the appeal allowed with costs.