(dissenting) My only reason for filing a dissenting opinion in this case is to give a brief summary of the views which prompted my disagreement with my brother judges. I shall not attempt any citation of authorities; for all the cases bearing directly on the question at issue have already been cited in the majority opinion, and the interested reader will find that the various opinions and dissenting opinions already delivered have exhausted the subject. I shall say nothing concerning the desirability of church unity; for that I consider a matter for the churchmen and not for the civil courts.
The Cumberland Presbyterian Church has a representative form of government. It has adopted, a written constitution, and a careful consideration of the instrument leads me to the conclusion that it is one of granted powers. Certain ecclesiastical ■bodies, commonly called church courts, are created, and upon them are conferred certain executive, legislative and judicial functions.
Section 25 of the Constitution specifically names the church courts created and prescribes the limits over which each may exercise jurisdiction, and concludes as follows: “and the jurisdiction of these courts is limited by the express provisions of the constitution.” Other sections of the constitution specifically enumerate the powers, whether executive, legislative or judicial, of each of the church courts; and reference must be had to that instrument for any authority which each of these courts may assume to possess. The constitution must be considered as a whole, and each section read in connection with others relating to the same subject.
Bearing in mind these settled rules of construction, I have examined the organic law of the Cumberland Presbyterian Church, and have been unable to find any section or part thereof which has, in express terms or by necessary implication, conferred upon the church courts or judicatories the power to dissolve the church and to form a union with another religious society.
Section 43 of the constitution defines the powers and prescribes the jurisdiction of the General Assembly, and it is certain that no such power is expressly granted by that section. Nor do I think such power can be impliedly conferred by necessary implication; for in that section one of the powers delegated to the General Assembly is, “to receive under its jurisdiction other ecclesiastical bodies whose organization is conformed to the doctrines and order of this church,” and it is a canon of construction that the express mention of one thing implies the exclusion of another. Having expressly granted to the General Assembly the power to receive other religious bodies under its jurisdiction, and not having, in equally plain terms, conferred upon it the authority to dissolve the church, and to form a union with another religious society, it seems plain to me that such power was intentionally withheld by the framers of the constitution. But it is insisted that the power may be exercised under the authority to amend conferred by section 60 of the constitution. This argument concedes that no such power existed before; for if the power was granted by the constitution itself, an amendment for that purpose was not necessary. Moreover, the fallacy of that argument consists in the assumption that the power of amendment confers the right to make such radical and fundamental changes in the constitution as would abrogate it and defeat the purposes for which it was adopted. The power 'to amend signifies the power to change or alter; but not to destroy. A constitution may be changed or altered to any extent by amendment where the purposes for which the constitution itself was intended are preserved ; but the power to amend can never be used as an instrument of destruction of the constitution itself.
To my mind the reasoning of Mr. Justice Hodges, in the case of Clark v. Brown, (Tex. Civ. App.) 108 S. W. 421, is so clear and logical as to leave no doubt on this point. He said:
“The organization constituted by the church compact being the source from which the delegated power to amend the constitution is derived and for the continuation of. which a constitution is to be maintained, the preservation of its integrity was as much a part of the duty imposed, and its destruction as much beyond the power conferred, as if there had been express stipulations to that effect. The word “constitution” signifies something constituted, and is generally used to designate the written evidence of something which can only have a legal existence. It is true that, in exercising the power of amendment, one portion of a constitution may be abrogated and another substituted, and to that extent there may be a partial destruction of the instrument as before existing contemplated in this power of amendment; but there is a clear implication, going with the power to amend, that the integrity of the instrument shall remain unimpaired. If that instrument is to be disregarded, or the powers exercised to be in defiance of its provisions, or by virtue of superior sovereignty, there was no necessity for an amendment. The very fact that powers and duties are to be defined through the instrumentality of an amended constiution carries with it the suggestion that the constitution is to be the source from which the power is to come, and that the government which it creates shall continue to be subject to its requirements. There is in this provision of the constitution requiring the joint acts of the General Assembly and a majority of its presbyteries for its amendment convincing proof of the recognition of this principle, and that the constitution so amended should continue in operation and govern the future management of the church until its provisions had been changed by other and different amendments -made in consonance with its purposes and plan of acquisition. When the grant of the power is required to be written into and become a part of the organic law of any institution, whether political, commercial or ecclesiastical, the inference is clear that a continuation of the organic existence constituted is contemplated. If the General Assembly and a majority of the presbyteries had the power to form such union as would result in the destruction of the separate organic existence of the Cumberland Presbyterian denomination, there was no necessity for writing that power first into the constitution before it could be exercised; for by its exercise alone the constitution as amended would be wholly and effectually abandoned. Aside from the power of amendment given in this section, the constitution nowhere undertakes to prescribe the joint duties of the General Assembly and the presbyteries. On the contrary; the powers of each of the different church courts are treated separately, thereby showing an intent to limit the powers of each to such as had been prescribed, and to prevent any enlargement of either except by the consent of the other church courts.”
I am, however, of the opinion that the Cumberland Presbyterian Church had the inherent power to form a union with another church. This right is justified upon the same principles upon which, in the first instance, the church was organized. It is a voluntary religious association, and as such it has, under our laws, the same right to dissolve itself and to form a union with another religious society as it had to organize in the beginning. By inherent power is meant “an authority possessed without its being derived from another.” The church courts being bodies of delegated powers, it is obvious that they possess no inherent power. It follows that the inherent power to dissolve and to form a union with another religious society rests in the body of the church itself; and, no provision having been made for its exercise, it can only be done by the unanimous consent of the units of the church. If I am correct in my position that the written constitution of the church can not be amended so as to give the church courts the power to dissolve the church and to form a union with another church, it is equally certain that such courts can not usurp the power reserved in the 'body of the church to accomplish such purpose. So long as sufficient church units preserve the church organization and are capable of enjoying its ecclesiastical and property rights, I think they are entitled to the use and property belonging to the Cumberland Presbyterian church.
The views I have expressed renders it unnecessary for me to express an opinion on the binding force of the decisions of ecclesiastical courts upon the civil courts; for it is evident that, if the ecclesiastical court has no power to make its decision in the first instance, it can have no binding effect whatever. It is a well established principle of construction that the decision of a court without jurisdiction is void and of no effect.
Mr. Justice Wood concurs.