A.C. AND
PRIVY COUNCIL 673
J.C.*
1930
June 23
[PRIVY COUNCIL.]
TRUSTEES OF ST. LUKE'S
PRESBYTERIAN CONGREGATION }
APPELLANTS;
OF SALTSPRINGS AND OTHERS . .
AND
CAMERON AND OTHERS . . . . . RESPONDENTS.
ON APPEAL FROM THE SUPREME COURT OF CANADA.
Canada (Nova Scotia)-United Church of Canada-Dominion Corporation-Provincial Act as to Property in Province-Inconsistency with Act of Incorporation-14 & 15 Geo. 5, c. 100 (Dom.), ss. 4 (c), 10-Stat. of N.S., 1925, c. 167, s. 8 (a).
By an Act to come into force on
June 10, 1925, the Dominion legislature incorporated the United Church
of Canada so as to give effect to an agreed basis of union between the
Presbyterian, Methodist, and Congregationalist Churches throughout Canada.
The congregations of the uniting Churches were to become congregations
of the United Church, and their property was to vest therein. By s. 10,
however, if any congregation voted at a meeting held within six months
before June 10, 1925, not to enter the union it was not to be affected
by the Act, and by s. 4 (c), it was to be deemed not to have become a member
of the United Church. The legislature of Nova Scotia had passed an Act,
to come into force upon the United Church being incorporated, enacting
that property of uniting congregations in the Province should vest in the
United Church. Sect. 8 (a) provided that if a congregation, at a meeting
held within six after the incorporation, voted not to enter the union its
property was not to be affected, but, the if the congregation decided later
to enter the union the Act was to apply to it and to its property.
A Presbyterian congregation in Nova Scotia voted
at a meeting held within six months before June 10, 1925, not to concur
in the union, but at a meeting held within six months after that date voted
to enter the United Church:-
Held, that as by the Dominion Act which
incorporated the United Church of Canada the effect of the earlier vote
was that the congregation was not a constituent member of that body, it
could not by virtue of Provincial legislation become a member, nor could
its property vest upon the footing that it was so ; further, that the later
vote could not be treated as a decision to apply to the United Church for
admission, with the effect that, if the application was acceded to, its
property vested therein under s. 8 (a).
The earlier vote, however, did not necessarily
for ever debar the congregation from entering the United Church, as the
Dominion Act recognized that a non-concurring congregation might become
a member at a later time, though the Dominion legislature at present had
not provided means whereby a later union could be effected.
Judgment of the Supreme Court of Canada [1929]
S.C.R. 452 affirmed subject to a variation.
Appeal. (No. 98 of 1929) by special leave from
a judgment of the Supreme Court of Canada (February 5, 1929) affirming,
with a variation, a judgment of the Supreme Court of Nova Scotia in banco
(April 9, 1927), which reversed a judgment of Harris C.J.
The respondents, members of St. Luke's Presbyterian
Congregation of Saltsprings, Nova Scotia, brought an action in the Supreme
Court of Nova Scotia against the appellants, the trustees of that congregation,
and others. The plaintiffs claimed that a meeting of the congregation on
July 27, 1925, whereat the congregation purported to vote concurrence in
union with the United Church of Canada, and all proceedings thereat, was
void and of no effect ; they prayed for an injunction restraining the defendants
from using the property of the congregation on the footing that the congregation
was connected with the United Church of Canada, and for other relief.
The facts material to the appeal, and the relevant
provisions of the United Church of Canada Act (14 & 15 Geo. 5, c. 100,
Dom.), by which that Church was incorporated, and of the United
Church of Canada (Stat. of Nova Scotia, 1925 c. 167) in relation to property
in that Province of congregations concerned appear from the judgment of
the Judicial committee.
The action was tried by Harris C.J., who held that
the vote at the meeting of July 27, 1925, was effective to pass the congregation
into the United Church of Canada, and to vest its property in that body.
The Supreme Court in banco (Mellish J. dissenting) reversed the decision
; the judgment, however, declared that the congregation might, at a meeting
regularly held pursuant to the latter part of s. 8 (a) of the Provincial
Act, enter the union and become part of the United Church. The dispute
in the Nova Scotia Courts was mainly whether the meeting of July 27, 1925,
was duly convened.
On appeal to the Supreme Court of Canada that Court
(Duff J. dissenting) held that after the union became effective on June
10, 1925, there was no means by which the congregation could enter the
United Church. Accordingly the judgment of the Supreme Court of Nova Scotia
was varied by striking out the declaration above mentioned. The appeal
to the Supreme Court of Canada is reported at [1929] S.C.R. 452.
1930. April 29 ; May 1, 2. Tilly K.C.
for the appellants.
H. P. Mackeen and F. J. Tucker for
the respondents.
June 23. The Judgment of their Lordships was
delivered by
LORD MACMILLAN.
Profiting by the experience of the Presbyterian Churches which united in
Scotland in 1900 the Canadian Churches which proposed to unite in 1925
adopted the safer course of invoking in advance the sanction of the legislature
to their union. They have, nevertheless, not been entirely successful,
as the present appeal shows, in avoiding the pitfalls which seem to lie
in the path of all legislative efforts to deal with ecclesiastical affairs.
A special complication besetting legislation in the case of the uniting
Churches in Canada arose from the circumstance that it was necessary to
resort both to the Dominion legislature and to the several Provincial legislatures.
Inasmuch as the organizations and activities of the uniting Churches extended
throughout the whole Dominion the Parliament of Canada alone could merge
and incorporate them as a single United Church of Canada. On the other
hand, inasmuch as the property of the uniting Churches was distributed
throughout the Provinces, the disposal of church property in each province
consequent upon the union was a matter for the respective Provincial legislatures
in the exercise of their privative power to deal with Provincial property
and civil rights. The requisite statutes were accordingly passed by the
Dominion and the Provincial legislatures respectively, the design being
to secure by their co-operation the enactment of a coherent and consistent
scheme for the constitution of the United Church and the regulation of
its property. It was, however, inevitable that the Dominion statute incorporating
the United Church should deal with the transference of the property of
the uniting Churches to the new corporation, notwithstanding the distribution
of the property throughout the Provinces. Such Dominion legislation might
have sought justification in the accepted principle that the Parliament
of Canada is entitled to deal with Provincial property and civil rights
in so far as may be necessary to enable it to legislate effectually on
a matter its competence.
Sect. 29 of the Dominion Act obviously hesitates
a doubt on the subject, for it runs as follows : "Inasmuch as questions
have arisen and may arise as to the powers of the Parliament of Canada
under the British North America Act to give legislative effect to the provisions
of this Act, it is hereby declared that it is intended by this Act to sanction
the provisions therein contained in so far and in so far only as it is
competent to Parliament so to do."
The difficulty was surmounted by inserting in the
Nova Scotia Act and in some at least of the other Provincial Acts a section
declaring that " the provisions of the Act of incorporation shall
have full force and effect with respect to any property or civil rights
within this Province."
The substantive question in the present case is
whether the congregation of St. Luke's Presbyterian Church at Saltsprings
in the Province of Nova Scotia is or is not, in view of the events which
have happened and the relative legislation, a congregation of the United
Church of Canada. To determine this question it is necessary to examine
the provisions of both the Dominion Act of Incorporation and the Nova Scotia
Provincial statute in their relation to the facts of the case.
The Dominion statute incorporating the United Church
of Canada was assented to on July 19, 1924, and by s. 2 came into force
on June 10, 1925, except the provisions required to permit the vote provided
for in s. 10 being taken, which came into force on December 10, 1924. The
scheme of the Act is clear, and simple. The preamble recites that the Presbyterian
Church in Canada, the Methodist Church and the Congregational Churches
of Canada had adopted a basis of union scheduled to the Act and had agreed
to unite and form one body or denomination of Christians under the name
of "The United Church of Canada." By s. 4 it was provided that
the union of the three Churches should become effective upon the day upon
which the Act came into force, i.e., June 10, 1925, and the three Churches
as so united were thereby constituted a body corporate and politic under
the name of "The United Church of Canada." The congregations
of the three Churches were by the operation of this section merged in the
United Church and became congregations of that Church. Sect. 5 provided
for the vesting in the United Church from and after June 10, 1925, of the
general property belonging to the negotiating Churches, and s. 6 provided
that, subject to the provisions of s. 8, from and after June 10, 1925,
the property of every congregation of the uniting Churches should be held
for the benefit of the same congregation as a part of the United Church.
It was, however, contemplated that some congregations
might not concur in the union. To meet their case it was enacted in s.
10 that if any congregation of any of the uniting Churches should at a
meeting held within six months before June 10, 1925, decide by a majority
of votes not to enter the union the property of such non-concurring congregation
should remain unaffected by the Act, and s. 4 (c) provided that
members of any non-concurring congregation should be deemed not to have
become members of the United Church. Elaborate provisions are contained
in s. 10 and 11 to safeguard the position of non-concurring congregations,
including the appointment of a Commission to secure to them a fair and
equitable apportionment of property.
Under this scheme every congregation of the three
uniting Churches had presented to it the option of associating itself with
or dissociating itself from the union. If within the six months between
December 10, 1924 and June 10 1925, a congregation decided in accordance
with the procedure prescribed in the Act not to concur in the union, it
thereby effectually excluded itself from the merger which took place on
June 10, 1925, and became entitled to the rights and privileges of a non-concurring
congregation as set out in the Act. A congregation which took no steps
during the six months preceding June 10, 1925, to vote itself out of the
union automatically entered the United Church and became subject as regards
its constitution and its property to the whole provisions applicable to
the United Church and its congregations.
Now the congregation of St. Luke's with which this
appeal is concerned, at a meeting of the congregation held on December
22, 1924, as to whose regularity no question is raised, duly decided by
a majority not to enter the union. The meeting complied with the requirements
of s. 10 of the Dominion statute and by its decision the congregation became
within the meaning of the Act a non-concurring congregation to which on
June 10, 1925, all the statutory provisions relating to non-concurring
congregations became applicable.
On July 27, 1925, however, there was held what
purported to be a meeting of the congregation at which it was resolved
by the unanimous vote of those present, being one hundred members out of
a total membership of one hundred and sixty-four, that St. Luke's Presbyterian
Church should concur in the union of the Churches and become part of the
United Church of Canada. The present controversy concerns the competency,
the regularity and the efficacy of this resolution.
So far as regards the Dominion statute there is
no provision made for the reversal, either before or after June 10, 1925,
of a decision of non-concurrence by a congregation. In any case the decision
by the congregation on December 22, 1924, not to concur in the union stood
unaltered at June 10, 1925, and under the Dominion Act it accordingly remained
outside the union and came within all the provisions of the Act applicable
to non-concurring congregations.
To understand the question which has arisen it
now becomes necessary to turn to the Nova Scotia Act. This statute was
passed by the Provincial legislature on May 9, 1924, and under s. 29 came
into operation on the incorporation of the United Church by the Dominion
Act on June 10, 1925. The preamble, after reciting that the three Churches
have agreed to unite in terms of the basis of union and have petitioned
the Parliament of Canada to incorporate the United Church, proceeds to
narrate that application has been made to the legislature of the Province
"to enact as hereinafter set forth with regard to the property rights
and powers hereinafter mentioned." The Act, of course, contains no
provisions as to the constitution and incorporation of the United Church,
but proceeds at once to provide in ss. 3 to 7 inclusive for the disposal
of Provincial property of the three Churches and their congregations on
the union becoming effective on June 10, 1925. Those sections correspond
and are practically identical with ss. 5 to 9 inclusive of the Dominion
Act. Unfortunately the parallelism between the two enactments is not maintained.
The Dominion Act in s. 10 proceeds to deal with the case of congregations
which within the six months preceding union decide not to concur. The Nova
Scotia Act, which up to this point makes no reference to non-concurrence,
proceeds in s. 8 to enact 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 a 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."
There are several observations to be made upon
this enactment. In contrast with the Dominion statute which provided for
the exercise within six months before the incorporation of the United
Church of the option not to concur the Provincial legislature here contemplates
a resolution not to concur being passed within six months after
the incorporation of the United Church and a possible further decision
"at any later time" to enter the union. To have provided in the
Dominion statute for the passing of a resolution not to concur within six
months after the incorporation of the United Church would have been quite
inconsistent with the scheme of incorporation which drew the line at June
10, 1925, and automatically included in the United Church all congregations
which had not within the preceding six months decided not to concur while
it equally excluded all such congregations as had so decided. As the Nova
Scotia Act makes no reference to the case of a congregation deciding before
June 10, 1925, not to concur in the union, ss. 3 and 4 of that Act read
by themselves without reference to the Dominion Act would apparently affect
the property of all congregations of the uniting Churches notwithstanding
that a particular congregation might under the Dominion Act have decided
before June 10, 1925, not to concur in the union. The Dominion Act provides
for a congregation remaining outside the union by a vote taken before union
while the Provincial Act provides only for taking a congregation out of
the union after it has been brought in. Sect. 8 (a) of the Nova
Scotia Act does not, however, profess to enable congregations, on
the one hand, to decide not to concur within six months after the incorporation
of the United Church or, on the other hand, at any later time to decide
to enter the union. It assumes the taking of such decision by a congregation
and prescribes what shall be the effects thereof on property. Indeed, s.
8 (a), which begins with the words "Provided always,"
is in the form of a proviso to the preceding sections relating to church
and congregational property ; it does not profess to affect the constitution
of the United Church, and in their Lordships' view could not completely
do so.
The fundamental question would therefore appear
to be whether s. 8 (a) affords any competent statutory warrant (1.)
for a congregation which, by not deciding within six months before
June 10, 1925, not to concur, has under the Dominion Act automatically
become a congregation of the United Church, deciding within six months
after June 10, 1925, not to concur in the union, or (2.) for a congregation
which has decided within six months before June 10, 1925, not to concur
in the union subsequently deciding to enter the union, with the consequential
effects on church property prescribed by s. 8 (a). Their Lordships
are of the opinion that s. 8 (a) does not competently authorize
either of such steps. The constitution of the United Church was a matter
solely for the Parliament of Canada, and it was for that Parliament to
define the conditions of membership of the corporation which it set up.
The Provincial legislature could not competently alter the conditions of
membership of the United Church and nowhere avowedly attempts to do so.
Sect. 8 (a) of the Provincial Act in providing certain consequences
as regards property which are to follow decisions of congregations either
not to concur in the union or to enter the union does not and could not
properly empower congregations to take such decisions affecting, as they
must necessarily do, the constitution of the United Church. If such decisions
cannot be taken consistently with the constitution of the United Church
as defined by the Parliament of Canada then the consequences as regards
property of such decisions cannot become operative. The authors of the
Provincial Act of Nova Scotia which was passed on May 9, 1924, may, for
aught their Lordships know, have contemplated that the Dominion statute,
which was not assented to until July 19, 1924, would contain provisions
for congregations deciding after June 10, 1925, not to concur in the union
or at a later time deciding to enter the union and may have thought it
right to legislate for the consequences on property of such decisions should
they be authorized by the Dominion legislature, which, however, did not
prove to be the case.
Their Lordships, while finding in the Dominion
statute no warrant for such decisions as are contemplated in s. 8 (a)
of the Provincial statute, are not to be taken as holding that once a congregation
has decided under s. 10 of the Dominion statute not to concur in the union
it is for ever after debarred from being received into the United Church.
Far from it. The basis of union scheduled to and ratified by s. 26 of the
Dominion Act under head A dealing with "Charges existing previous
to the Union" expressly refers in para. 8 to "congregations received
subsequent to the Union into the United Church." And s. 8 deals with
the property of "a congregation received into the United Church after
the coming into force of this Act" as does also s. 6 of the Provincial
Act. No procedure, however, is prescribed in the Dominion statute for the
reception of a congregation into the United Church after June 10, 1925,
nor is it specified how an effective decision may be taken by a congregation
with a view to its reception. As the Provincial statute could not, in their
Lordships' view, effect the subsequent entry of a congregation into the
union the case has thus not been competently provided for in either statute.
Appropriate legislative measures can readily be taken, if so desired, to
deal with the matter.
Their Lordships, being of opinion that St. Luke's
Congregation having duly decided before June 10, 1925, not to concur in
the union could not at their own hand competently or effectively decide
after June 10, 1925, by a majority to enter the Union, have considered
whether the resolution of July 27, 1925, could be treated as a decision
to apply to the United Church for reception with the effect, if the application
were acceded to, of enabling the congregation to enter the United Church
and by virtue of s. 8 (a) to carry its property with it. There are,
in their Lordships' view, insuperable difficulties in the way of so interpreting
the situation. Sect. 8 (a) in terms speaks of a decision at any
later time to enter the Union and become part of the United Church and
the resolution of July, 27, 1925, was a resolution to concur in the union
and to become part of the United Church. Such a decision could not be effectively
taken if s. 8 is read literally. But reading it as a resolution to apply
for reception by the United Church which, by the way, would not be a decision
in terms of s. 8 (a), then the concluding words of s. 8 (a)
manifestly could not apply. For on a decision being taken under the last
sentence of s. 8 (a) "this Act shall apply to the congregation
and all the property thereof from the date of such decision." The
Act with all its consequences might properly enough apply if the congregation
could by force of its own decision enter the union and become part of the
United Church. But how could it reasonably apply to the congregation and
its property from the date of a decision to apply for reception, for the
United Church might decline to receive it? Incidentally, if the Nova Scotia
Act became applicable to all the property of St. Luke's congregation such
congregational property as is dealt with in s. 6 would not be transferred
without the consent of a meeting of the congregation regularly called for
the purpose. No such meeting has been held.
To subject the fate of a congregation and its property
to the decision of a majority of votes of its members would, in their Lordships'
view, require clear enabling words, competently enacted. If the words of
the concluding sentence of s. 8 (a) in their literal sense imply
a power on the part of a congregation to enter the union at their own hand,
then this enactment was beyond the competence of the Provincial legislature
as affecting the constitution of the United Church which was a matter solely
for the Parliament of Canada. If it is sought to use the enactment as impliedly
authorizing a decision by a majority of a congregation to apply for reception
by the United Church this reading, even if such legislation was competent
to the Provincial legislature, is plainly inadmissible, for the decision
which the enactment contemplates is to have effect on the congregation
and all its property from the date of such decision, and this could not
be intended in the case of a mere decision to apply for reception which
might be refused.
Their Lordships have not failed to notice the point
that a decision at a later time to enter the union presupposes under s.
8 (a) of the Nova Scotia Act a previous decision not to concur in
the union, which previous decision would apparently have to be one taken
within six months after the union. The previous decision in the
case of St. Luke's was taken within six months before the union.
This interposes a further difficulty. An amending Act was passed by the
Nova Scotia legislature on May 7, 1925, which added to s. 8 of the principal
Act the following sub-section : " (d) 1. Any vote on the question
of entering the said union taken in a congregation prior to the coming
into force in pursuance of and in accordance with the provisions of the
Act of incorporation shall be deemed to be the vote of such congregation
for the purposes of this Act." This may enable the decision not to
concur which was reached by the congregation of St. Luke's on December
22, 1924, before the Nova Scotia Act came into force to be reckoned as
a vote of the congregation for the purposes of the Nova Scotia Act, but
it does not appear to deem a decision taken on December 22, 1924, to be
a decision taken between June 10 and December 10, 1925, which is what s.
8 (a) of the Nova Scotia Act appears to require as a condition precedent
of a decision at a later time to enter the union.
The views which their Lordships have hitherto expressed
assume that the meeting of July 27, 1925, was a valid meeting. But the
regularity of that meeting and not the aspect of the case with which their
Lordships have so far dealt was the point round which controversy centred
in the Courts below. It is obvious that the meeting was open to criticism
in matters of procedure, but their Lordships do not feel called upon to
enter upon the question whether such criticism was necessarily fatal to
the validity of the decision then taken. If such a decision, even if taken
by a meeting otherwise unexceptionably regular, would have been, as their
Lordships hold, without competent statutory warrant, it becomes unnecessary
to discuss the numerous alleged irregularities of procedure charged against
it which are discussed at great length in the judgments of the learned
judges who considered the case in Canada. In the result their Lordships
find themselves in general agreement with the view of the case taken by
the learned Chief Justice of Canada which had the support of Newcombe,
Renfret and Smith JJ., and they are unable to accept the arguments of the
appellants notwithstanding the powerful assistance which they derive from
the dissenting judgment of Duff .J.
Their Lordships, however, consider that the formal judgement
of the Supreme Court of Nova Scotia of April 9, 1927, which was varied
by the formal judgement of the Supreme Court of Canada of February 5, 1929,
by striking out the fourth paragraph thereof should be further varied by
deleting from the second paragraph thereof sub-paragraph "(2.) that
the Reverend Robert Johnson was at all material times and is moderator
pro tempore or interim moderator of the said congregation," and also
be deleting from the third paragraph thereof the following words with which
that paragraph concludes "and from interfering with the exercise by
the plaintiff Robert Johnson of the rights, powers and privileges of the
office of moderator pro tempore or interim moderator of the said congregation."
Their Lordships are not prepared to pronounce upon the position occupied
by Mr. Johnson and do not find it necessary for the disposal of the case
to do so.
Subject to this variation their Lordships will
humbly advise His Majesty that the judgment appealed from be affirmed and
the appeal dismissed with costs.
Solicitors for the appellants : Blake &
Redden.
Solicitors for respondents : Linklaters &
Paines.
____________________
* Present: VISCOUNT DUNEDIN, LORD BLANNESBURGH, LORD DARLING, LORD ATKIN, and LORD MACMILLAN.