I am in agreement with the conclusions of the learned Official Referee.
At a meeting of the vestry of the plaintiff church on February 6, 1956, at which the 2 churchwardens and only 4 out of the 9 authorized vestrymen were present, plaintiff Dr. Sidener was nominated to be rector. At a vestry meeting held on February 7,1956 the 6 persons present at the February 6th meeting elected Dr. Sidener rector. On March 5, 1956 an institution of the new rector took place, during which the Bishop (the governing ecclesiastical authority) declared that Dr. Sidener had been duly elected.
The sole question presented on this appeal is whether there was a quorum present at the vestry meetings on February 6 *274and 7, 1956. Plaintiffs contend that the 6 persons present at both meetings constituted a quorum. Defendants contend that a quorum required the presence of 7 persons, i.e., an additional vestryman. If plaintiffs are correct, Dr. Sidener was duly elected. If defendants are correct, Dr. Sidener was not duly elected. The learned Official Referee held that a quorum was not present under the provisions of section 42 of the Religious Corporations Law.
The majority of this court concedes that, if section 42 of the Religious Corporations Law is applicable, a quorum was not present at either of the two vestry meetings, with the result that the nomination, election, and subsequent institution of Dr. Sidener were invalid.
Section 42 of the Religious Corporations Law consists of a single paragraph. Among other things, it provides what shall constitute a quorum of the vestry. As applied to the case at bar, since the 2 churchwardens were present at the meetings of February 6 and 7, 1956, the presence of 5 of the 9 vestrymen was also required. There were only 4 vestrymen present. The section further provides that the vestry may, subject to the Canons of the General Church and of the Diocese, by a majority vote, elect a rector. The majority of the court is of the opinion that canon 11 (§ 2) of the General Canons is the canon of the General Church to which section 42 of the Religious Corporations Law is subject, and that under that canon the 6 persons present at the nomination and election meetings were sufficient to constitute a quorum. I do not agree with that view.
Canon 11 has nothing to do with the nomination or election of a rector. It is entitled “ Of Standing Committees ”. It deals only with standing or other committees of a diocese and not with a vestry of a particular church in a diocese. But even assuming that canon 11 applies to the nomination and election of a rector by the vestry of a particular church in a diocese, it nonetheless provides that a majority shall constitute a quorum only in cases in which a General Canon directs a duty to be performed, or a power to be exercised. Nowhere in any General Canon is there a direction of a duty or a power with respect to the nomination of a proposed rector. Plaintiffs do not claim, and the majority fails to demonstrate, that any General Canon contains a direction of a duty or a power with respect to such a nomination meeting of the vestry. Therefore, the provisions of canon 11 with respect to quorum are not applicable to the quorum required at a meeting for the nomination of a rector. Indeed, if canon 11 were held applicable, it would lead to an intolerable and intolerant result. The canon provides *275that a majority of a quorum is competent to act. Therefore, the holding by the majority of this court would permit the nomination and election of a rector in the instant case by 4 of the 11 persons authorized to nominate and elect a rector. Such a result should not prevail.
The power to call and induct a rector in the Protestant Episcopal Church has been vested by statute in the vestry from 1813 (L. 1813, ch. 60) to the present. The statutes have always provided what shall constitute a quorum. Canon 11 did not come into existence until 1832, long after the power and duty to elect a rector had been granted by statute. Since the duty and power to nominate and elect a rector is solely statutory, the statutory provisions for quorum and election must govern.
The pronouncement of March 5, 1956 at the institution of Dr. Sidener did not constitute a binding judgment of the Bishop that the election was valid. Such judgments are valid only when they are not arbitrary. (Gonzalez v. Archbishop, 280 U. S. 1, 16.) In my opinion, the judgment of the Bishop was arbitrary because it was in direct violation of section 42 of the Religious Corporations Law.
Nor do I agree with the suggestion of the majority that, if section 42 of the Religious Corporations Law provides what should constitute a quorum in the matter of the election of a rector, it would be unconstitutional as prohibiting the free exercise of religion. All that Kedroff v. St. Nicholas Cathedral (344 U. S. 94) holds is that a statute which directs that a church should be governed by one administrator rather than another, or which passes control of church matters from one church authority to another is unconstitutional. But a statute which merely defines what shall constitute a quorum of the vestry is not within the condemnation of the rule stated. The Kedroff case specifically recognizes that it is only freedom to select clergy, where no improper methods of choice are proven, which is entitled to constitutional protection. (Kedroff v. St. Nicholas Cathedral, supra, p. 116; see, also, Gonzalez v. Archbishop, 280 U. S. 116, supra.) The case at bar concerns an improper method of choice of Dr. Sidener.
Section 25 of the Religious Corporations Law, on which the majority relies, provides that church corporation meetings are to be held, conducted, and governed by the laws, regulations, practice, discipline, rules and usages of the religious denomination involved. There is no law, regulation, practice, discipline, rule or usage of the Protestant Episcopal Church which states what shall constitute a quorum at any meeting of the vestry. *276There being no contrary requirement of the church, section 42 of the Religious Corporations Law controls, with the result that in the case at bar the presence of 7 persons was necessary to constitute a quorum. Furthermore, section 25 of the Religious Corporations Law applies generally to all church corporations. Therefore, it may not be deemed to supersede in any respect section 42 of the Religious Corporations Law, which deals specifically with Protestant Episcopal Churches. If there is any inconsistency between the two, the specific statute must be held to govern.
The judgment should be affirmed.
Ughetta and Hallinan, JJ., concur with Wenzel, J.; Nolan, P. J., concurs in separate opinion; Beldock, J., dissents and votes to affirm in opinion.
Judgment reversed on the law and the facts, with costs, and judgment directed to be entered in favor of plaintiffs, without costs. Findings of fact, insofar as they may be inconsistent with the opinion herein, are reversed and new findings are made as indicated therein.
Submit orders for settlement on or before 12 o’clock noon on June 26, 1957.