on rehearing. Each side has filed a petition for rehearing. We shall first consider the appellees’ petition.
In seeking a reconsideration the majority faction makes two principal contentions. First, it is insisted that our reference to the differences between the congregational form of church government and other forms of church government implies that a congregational church is subject to judicial control in property matters, while other churches are not.
This is not the case at all. It is unquestionably the duty of the courts to decide legal questions involving the ownership and control of church property regardless of the form of ecclesiastical government that may be in effect. A dispute arising in a congregational church, however, may reach the courts more rapidly than a similar dispute under another form of church government, for there is no possibility of an appeal to higher authority within the denomination.
When recourse is provided within the denomination itself, the complaining parties must avail themselves of that remedy before resorting to the courts. Sanders v. Baggerly, 96 Ark. 117, 135, 131 S. W. 49. Yet in many instances, especially when the controversy is between a local church and the parent organization, the dispute, as far as it concerns property rights, is ultimately determined by the civil courts. For example, an individual church is free to secede from the denomination if it elects to do so, but it cannot take the church property with it where the effect of that action would be to devote the property to doctrines fundamentally different from those to which the property was dedicated. Trustees of Pencoder Presbyterian Church v. Gibson, 26 Del. Ch. 375, 22 Atl. 2d 782; Presbytery of Bismarck v. Allen, 74 N. D. 400, 22 N. W. 2d 625. Conversely, if it is the parent organization that has departed from the basic articles of faith, as by an unauthorized merger with another denomination, the local church has a right not only to secede but also to retain its property. Boyles v. Roberts, 222 Mo. 613, 121 S. W. 805. Thus the differences in the form of church government do affect the procedure by which a property dispute may reach the courts, but there is no discrimination in the rules that are to be applied when the case is eventually submitted for judicial decision.
Secondly, the majority faction presents this argument : ‘ ‘ The court usurped a function of the local church in deciding that certain doctrines were fundamental because differences among the members thereto resulted in a split in the church. In a congregational church, no authority has the power to determine what doctrines are fundamental to that church. This authority to determine doctrine is solely a matter for the church to decide by vote of the membership.”
On the spiritual side the appellees’ position is undoubtedly well taken. The majority group are, as we stated in our original opinion, completely at liberty to adopt any religious beliefs they choose and to engage a pastor who will preach the doctrines of their choice. Nor a court to restrict the exercise of such spiritual rights would clearly involve an inadmissible invasion of religious freedom.
But on the temporal side the appellees are wrong. Here the issue is one of property—nothing more. If the majority prevail in this case they will be entitled to remain in control of the physical church property at Traskwood, while the minority will of necessity have to find another place in which to hold their services. If the minority prevail those two roles will be reversed. Thus, stripped of nonessentials, what the majority are contending for in this litigation is not freedom of religious belief but simply the right to enjoy the possession and the use of tangible church property.
That property, however, was acquired by the church through the contributions and sacrifices of many members, past and present, throughout the sixty years that the Traskwood church has existed. The property was dedicated for use as a Landmark Missionary Baptist church. Even though each Landmark Missionary Baptist church is a self-governing unit, the evidence clearly shows that the Landmark Missionary Baptists are a denomination adhering to certain doctrines that are regarded, and have for many years been regarded, as fundamental. It was to the perpetuation of those doctrines that the property now in question was dedicated by those whose efforts brought about its acquisition.
In this situation the majority faction cannot divert the property to beliefs that radically depart from the purposes to which the property was originally dedicated. A fair statement of the general rule appears in Reid v. Johnston, 241 N. C. 201, 85 S. E. 2d 114: “While it is true that the North Rocky Mount Missionary Baptist Church is a self-governing unit, a majority of its membership is supreme and is entitled to control its church property only so long as the majority remains true to the fundamental faith, usages, customs, and practices of this particular church, as accepted by both factious before the dispute arose . . .
“A majority of the membership of the North Rocky Mount Missionary Baptist Church may not, as against a faithful minority, divert the property of that church to another denomination, or to the support of doctrines,, usages, customs and practices radically and fundamentally opposed to the characteristic doctrines, usages, customs and practices of that particular church, recognized and accepted by both factions before the dissension, for in such an event the real identity of the church is no longer lodged with the majority group, but resides with the minority adhering to its fundamental faith, usages, customs and practices, before the dissension, who, though small in numbers, are entitled to hold and control the entire property of the church.”
The uncompromising position of these appellees— that as the majority group they are absolutely free to divert the church property to any purpose they choose— was stated and answered in an opinion that has become a classic case in this field of the law: “After the majority has recognized itself a party to a controversy that should be settled in the interest of peace and harmony, the claim that it should itself sit in judgment to determine that controversy is somewhat novel. The minority lay at the door of the majority the charge of heresy. The majority say: ‘We constitute the church. All power is vested in the church, and hence in us. We determine that the charge is false. ’ This is the precise claim made by appellees as to the power of a majority, and it is the precise action taken by appellees as a majority in Mt. Zion Baptist Church ... In view of this, the claim of the majority that ‘if it desires to change to a Mormon church it may do so, and no person or persons, no man or body of men, either civil or ecclesiastical, has any right or power to interfere,’ is not strange. The position leads to this: Consider the majority of a particular Baptist church as guilty of the grossest violations of and the wildest departure from the church covenants and faith. Being accused by the minority, the accused sit in judgment, which it declares in its favor, and then pleads the judgment it declares as conclusive of its innocence, because no other man or body of men has authority to interfere. However such a rule may serve in purely ecclesiastical relations, we unhesitatingly say the civil law will not adhere to it where the result is to divert trust property from its proper channel.” Mt. Zion Baptist Church v. Whitmore, 83 Iowa 138, 49 N. W. 81, 13 L.R.A. 198.
The principles announced by the Iowa court are so demonstrably logical, so plainly fair and just, so completely unanswerable, that it is not surprising to find that they have been adopted in 27 of the 28 states in which the question now before us appears to have been considered. In most of the cases cited in the appendix to this opinion the courts granted the relief sought, restoring the faithful minority to the control of the church property. In many of the cases the pastor, who was ordinarily selected by the majority, was also enjoined from using the church property. It is true, of course, that in nearly every instance the court was compelled to determine a delicate issue in a religious controversy—whether there had been such a departure from the original articles of belief as to require the intervention of equity. But, in view of the controlling rule of law, that question becomes an issue of fact governing property rights, and consequently it becomes the duty of the court to decide the question, not as an ecclesiastical determination but as a temporal and judicial issue upon which property rights depend.
(For the benefit of those students of the law who may be inclined to study the authorities in detail, we are citing in an appendix to this opinion one case from each of the 27 jurisdictions which have unequivocally adopted what is overwhelmingly the majority view throughout the United States, with only Texas taking the contrary position.)
The appellees’ petition for rehearing is denied.
The appellants insist in their petition that in merely restraining Elder Dovers from using the church property we did not grant the minority the full relief to which they are entitled by law. Upon further consideration we are of the opinion that this contention is correct. We had hoped to promote unity in the church, but it is evident that our proposed solution to the controversy would not achieve that end. We have no doubt that the members of the majority group are wholly sincere in their adherence to the views expressed by Elder Dovers. That being true, it follows that the majority faction could not conscientiously devote the church property to beliefs conforming to the faith, usages, customs, and practices of this church, as they existed before this schism arose. Thus the dispute is certain to recur in the same form as long as the majority faction is in control of the church property.
The appellants’ petition for rehearing is granted, and the cause is remanded for the entry of a decree placing the appellants in possession of the church property.
APPENDIX
Jurisdictions holding that in a controversy such as this one the courts will enjoin the majority faction from devoting the church property to purposes constituting a fundamental departure from the traditional faith, customs, usages, and practices of the church:
Alabama: Guin v. Johnson, 230 Ala. 427, 161 So. 810.
California: Baker v. Ducker, 79 Calif. 365, 21 P. 764.
Colorado: Baptist City Mission Society v. People’s Tabernacle Congregational Church, 64 Colo. 574, 174 P. 1118, 8 A.L.R. 102.
Connecticut: McAuliffe v. Russian Greek Catholic Church, 130 Conn. 521, 36 Atl. 2d 53.
Delaware: Trustees of Pencader Presbyterian Church v. Gibson, 26 Del. Ch. 375, 22 Atl. 2d 782.
Georgia: Chatfield v. Dennington, 206 Ga. 762, 58 S. E. 2d 842.
Illinois: Stallings v. Finney, 287 Ill. 145, 122 N. E. 369.
Indiana: Smith v. Pedigo, 145 Ind. 361, 33 N. E. 777, 19 L.R.A. 433.
Iowa: Mt. Zion Baptist Church v. Whitmore, 83 Iowa 138, 49 N. W. 81, 13 L.R.A. 198.
Kansas: Huber v. Thorn, 189 Kan. 631, 371 P. 2d 143.
Kentucky: Parker v. Harper, 295 Ky. 686, 175 S. W. 2d 361.
Michigan: Davis v. Scher, 356 Mich. 291, 97 N. W. 2d 137.
Minnesota: Lindstrom v. Tell, 131 Minn. 203, 154 N. W. 969.
Mississippi: Linton v. Flowers, 230 Miss. 838, 94 So. 2d 615.
Missouri: Boyles v. Roberts, 222 Mo. 613, 121 S. W. 805.
New Hampshire: Hale v. Everett, 53 N. H. 9, 16 Am. Rep. 82.
New Jersey: Grupe v. Rudisill, 101 N.J. Eq. 145, 136 Atl. 911.
New York: Saint Nicholas Ukrainian Orthodox Church v. St. Nicholas Ruthenian (Ukrainian) Greek Catholic Church, 157 N.Y.S. 2d 586.
North Carolina: Reid v. Johnston, 241 N. C. 201, 85 S. E. 2d 114.
North Dakota: Presbytery of Bismarck v. Allen, 74 N. D. 400, 22 N. W. 2d 625.
Ohio: Kemp v. Lentz, 46 Ohio Law Abs. 28, 68 N. E. 2d 339.
Pennsylvania: Church of God v. Church of God, 355 Pa. 478, 50 Atl. 2d 357.
South Carolina: Middleton v. Ellison, 95 S. C. 158, 78 S. E. 739.
Tennessee: Beard v. Francis, 43 Tenn. App. 513, 309 S. W. 2d 788.
Virginia: Finley v. Brent, 87 Va. 103, 12 S. E. 228.
(Original opinion delivered March. 4, 1963, p. 211.)West Virginia: Canterbury v. Canterbury, 143 W. Va. 165, 100 S. E. 2d 565.
Wisconsin: Franke v. Mann, 106 Wis. 118, 81 N. W. 1014.
Contra. Texas: First Baptist Church of Paris v. Fort, 93 Tex. 215, 54 S. W. 892, 49 L.R.A. 617.
Carleton Harris, C. J., concurs. Ed. F. McFaddin, J., dissents.