(concurring). There has been a great deal of confusion and misunderstanding as to the position taken by this court, and I desire to take this opportunity to comment upon these aspects of the case wherein the greatest amount of misunderstanding seems to have arisen.
First, the question of separation of church and state is not involved in this litigation. This court is not concerned with the beliefs of any individual; no one is being told to accept any particular doctrine; no one is advised that one doctrine is preferable to another; Elder Dovers and his followers may expound their beliefs next door to the present building, across the street from the present building, or, as far as we are’ concerned, at any place in the world—except in the property involved in this litigation, which was dedicated, to another purpose. This, brings me to the second point of misunderstanding.
As a Baptist, I am, of course, well aware that an individual Baptist church is entirely independent and autonomous, and its affairs cannot be directed by the denominational organization. I should like to call attention to the fact that, while the tenets and beliefs of Landmark Missionary Baptist in general were radically departed from by the interpretations and preaching of Elder Dovers, the articles of faith under ivhich this particular church was operating were likewise violated.
The third point of misunderstanding is possibly the one that I desire most to comment upon. It has been suggested that in granting the relief sought by appellants, this court has set a precedent, i.e., we have rendered a. holding heretofore unknown to the law, and not found in judicial annals. This assertion is completely and totally erroneous. The majority has pointed out that 27 states have held what this court is holding today, with only one state taking a contrary position. A case is cited in the appendix from each of those 27 jurisdictions; actually, several cases of like import appear in the Reports of each of these states, and in some states numerous cases are cited to the same effect. Most of the cases involve one or another of the various groups of the Baptist faith, though I have read cases that relate to several other denominations that also operate as congregational type churches.
Without endeavoring to determine definitely when the first holding was rendered to this effect, I can say that cases, holding the view herein expressed, have been declared the law as early as 1868. Hale v. Everett, 16 AM Rep. 82.
The most recent case that I am aware of is Huber v. Thorn, 371 P. 2d 143. This case was decided less than a year ago (May 5,1962, with rehearing denied on June 22, 1962) by the Supreme Court of Kansas. The litigation involved the largest Baptist church in Kansas, the First Baptist Church of Wichita. According to the opinion, written by Justice Jackson, the property was worth approximately two million dollars above existing indebtedness. After giving a brief historical review of the Baptist church in this country from the time of Roger Williams, and recognizing “that one of the firm principles of the Baptist church has been that each church was its own master and might run its own affairs as an autonomous church,” the court proceeded to discuss the schism that had arisen in the congregation. Though a majority had voted on two occasions (once by a vote of 1,174 to 235, and subsequently by a ratio of 2% to 1) to take certain action, the Supreme Court found that the vote by the majority violated the tenets, rules and practices of the church, and directed the trial court to issue an injunction against the majority, as sought by the minority. Reid v. Johnston, 85 S. E. 2d 114, one of several cases from North Carolina, a rather well known case, is cited, and quoted from, in the present majority opinion. This ease was decided a little over eight years ago.1
Not only is the overwhelming weight of authority in support of the position here taken, but the language of our own cases is likewise in complete accord. While we have had no cases involving the use of church property, where the evidence established that the majority had departed from basic doctrines and tenets, there is certainly no question in my mind as to the action this court would have taken had that issue been presented and sustained. I should like to briefly discuss our Arkansas cases where Baptist churches were involved.2 First, however, let it be pointed out that all of the cases (wherein property rights were at issue) hold that a court has jurisdiction to settle property disputes in a congregational church. Reference will be made to this in discussing the opinions.
Chambers v. Jones, Chairman, 222 Ark. 596, 262 S. W. 2d 285, involved simply the question of whether a pastor was legally discharged. Rush v. Yancey, 233 Ark. 883, 349 S. W. 2d 337, related to the question of whether a pastor was properly discharged and, further, whether a certain meeting, at which some members were excluded, was a legal meeting. No question of departure from doctrine was raised in either case. In Hatchett, et al, v. Mt. Pleasant Baptist Church, et al, 46 Ark. 291, a majority of the members of the church discharged the pastor because of disorderly conduct, but he endeavored to continue to preach. Again, no question of deviation from basic church tenets or doctrine was at issue. This court, in upholding the trial court, which had enjoined Hatchett from acting as pastor, said, “In a congregational church, the majority, if they adhere to the organization and to the doctrines,3 represent the church.” In Monk v. Little, 122 Ark. 7, 182 S. W. 511, a dispute arose in the Little Flock Primitive Baptist Church. Here, two factions disagreed as to who should serve as pastor, but no question of departure from basic doctrine was presented to this court, the contentions relating entirely to two questions, viz., whether the petition of an excluded member for restoration to the church should have been granted,4 and whether the two factions had agreed to abide by the decision of a council of ministers which had heard the case. Both sides, of course, wanted to use the church property. This court, in its opinion, set forth the two principles of law which are likewise present in the instant litigation. Quoting from that case:
“(1) In the case before us, property rights are involved, and the court properly assumed jurisdiction of the case.5a
(2) In the case of Hatchett, et al, v. Mount Pleasant Baptist Church, et al, 46 Ark. 291, the court expressly held that in a congregational church the majority, if they have adhered to the organization and to the doctrines of the church,5b represent the church.”
In Ables v. Garner, 220 Ark. 211, 246 S. W. 2d 732, a Landmark Missionary Baptist Church case, the trial court held that conduct of the church, ‘ ‘ such as the designation of messengers as observers and their attendance when the North (American Baptist) Association convened, and conduct of the church in purchasing or in not purchasing particular literature, — these were not such departures from the faith entertained by the acting body as to justify civil interference with property rights.” The trial court found that essential tenets had not been impaired and this court, on appeal, in an opinion by the late Chief Justice Griffin Smith, said,
“We are unable to say that these findings were contrary to preponderating evidence. Our cases hold that in a congregational church, the majority, acting as local church rules provide, represents the organization unless there is a departure from essential doctrines.”6a
Further in the opinion, this court refers to the case of Booker v. Smith, 214 Ark. 102, 214 S. W. 2d 513, and states,
“It was said that the rights of different factions forming a religious body under the congregational form of church government are to be determined by the membership and that a majority controls. This statement, of course, assumes that the vote has been cast according to established rules. It also presupposes that from a doctrinal standpoint there has not been such an abrupt departure from congregational principles as to discredit the prevailing'group as a matter of laiv.”6b
Booker v. Smith, supra, involved the Antioch Baptist Church in Bradley County, Arkansas. The Antioch church was organized prior to 1866. In 1868, a tract of one acre was conveyed to three named persons as “deacons of the Baptist church in trust for a place of religious worship.” From the opinion:
“From the evidence in the record, the following facts appear: In 1902, there arose a dispute among some of the Baptist churches in Arkansas as to the handling of money for mission purposes. One group to the dispute was called “Convention Baptists,” and the other group was called “Landmark Baptists.” This appears as a statement vouched for by a witness: “ In 1902, a division came among Arkansas Baptists and the Landmark body was organized.’ ” The same witness said of the Antioch Church: Q. You testified that it could not have been a Landmark Church before 1902, because the Landmark Church was not organized before 1902? A. The Landmark Association was not.’ ”7
According to the opinion, the dispute between the two groups within the Antioch Church came to the surface in 1924. At a regular meeting a vote was taken to determine whether the church would adhere to the Convention Baptists or to the Landmark Baptists, and the vote was 31 to 14 for the Convention Baptists. Thereafter, a settlement was effectuated whereby the Landmark Baptists were allowed to use the church building the first and third Sundays of each month, since the Convention Baptists held services only on the second and fourth Sundays. The testimony reflected that members of the two groups would attend the other’s church services; however, after 20 years of this joint use of the building, litigation developed which eventually made its way to this court, the case being decided in November, 1948. "We said:
“Appellants here are the representatives of the Convention Baptist group, and they claim full control of all the church property subject only to the use agreement made in 1924. Appellees are the representatives of the Landmark Baptist group, and are seeking either to sustain the decree of the chancery court or—-by cross appeal—to obtain an election to determine the present numerical strength of the two groups. It is admitted that both the Convention group and the Landmark group at Antioch have remained true to the Faith and Doctrines of the Baptist church.8
“The only reason for judicial intervention is the settlement of the property rights claimed by the rival groups. ’ ’
This court held that the matter was settled by the 1924 election, but certainly the question of deviation from basic doctrine was not involved, since, as shown by the opinion (here quoted), both groups were admittedly true to Baptist doctrine. Furthermore, the trust was originally created for “Baptists” and, as shown by the opinion, the Landmark group was not in existence at the time of the execution of the deed.
To me, it is apparent, from this review of our own decisions, that the rule, upon which the present case is decided, was recognized by this court many years ago.
Actually, in nearly 15 years on the bench, I cannot recall any issue where there is more unanimity of opinion by state courts than on the question here presented.
It has been said that a Baptist church is the ‘ ‘ purest democracy in the world,” which is also to say that majority rule is a recognized principle of that denomination. But like other great principles, legal and constitutional, there is a limitation. For instance, we recognize that every adult citizen of Arkansas is entitled to vote in every election—but only if he holds a proper poll tax receipt! The Constitution of these United States and the Constitution of the State of Arkansas guarantee freedom of speech—but this does not mean that one can slander his neighbor with impunity! Both documents likewise guarantee freedom of the press—but this does not give license to libel! Yes—in a Baptist church, “the majority rule ’ ’—but with the limitation that property, dedicated to specific doctrines and tenets, cannot be appropriated by a majority from a faithful minority, and used for the promotion of alien beliefs or dogma!
Accordingly, I am of the view that the property dedicated to the doctrines, usages, customs and practices of the Traskwood Landmark Missionary Baptist Church, as set forth in the articles of faith and abstract of faith under which the Trashtvood church was operating, cannot be diverted to the use of those whose doctrines and usages are contrary to such articles and abstract of faith, and who would thus use the property contrary to the purpose for which it came into being.
The North Carolina Supreme Court, in its judgment, stated concisely the general rule: “That the true congregation of the North Rocky Mount Missionary Baptist Church consists of the plaintiffs and all other members of the congregation who adhere and submit to the characteristic doctrines, usages, customs and practices of this particular church, recognized and accepted by both factions of the congregation before the dissension between them arose.”
Rush v. Yancey, 233 Ark. 883, 349 S. W. 2d 337; Chambers v. Jones, Chairman, 222 Ark. 296, 262 S. W. 2d 285; Ables v. Garner, 220 Ark. 211, 246 S. W. 2d 732; Monk v. Little, 122 Ark. 7, 182 S. W. 511; Hatchett v. Mt. Pleasant Baptist Church, 46 Ark. 291: Booker v. Smith, 214 Ark. 102, 214 S. W. 2d 513.
Emphasis supplied.
The original vote on the hiring of the pastor was a tie, and the vote of the excluded member, had he been restored to membership, apparently would have broken the tie.
a. and b. Emphasis supplied.
a. and b. Emphasis supplied.
This information was evidently placed in the opinion as a matter of showing that the Landmark Baptists could not have been the intended recipients of the property since this group was not in existence at the time the deed was obtained.
Emphasis supplied.