There is no law or canon of the Protestant Episcopal Church in question in this matter, but the bishop and standing committee of the diocese of Olympia and the Rector, Wardens and Vestry of St. Luke's Parish in Tacoma simply misconceived the law of the land, and so have the majority in their opinion.
All the texts and cases cited in the majority opinion involve other trusts and uses and other powers of religious associations or corporations. This case involves a sacred trust granted by the donor to the predecessors of the present bishop of the diocese of Olympia and the building of a small but enduring church edifice as a memorial to his beloved daughter, then deceased. Too much stress is placed upon part of the language of the dedication and grant, and other language, showing its full intent, is disregarded. The *Page 388 prevailing opinion accurately states the facts and issues involved herein, but the reasoning and citations of law are all beside the question.
The original conveyance to the Right Reverend John Adams Paddock, Missionary Bishop, and his several successors, prescribes that the land should be held
". . . in trust . . . so long as the same shall be occupied and used by the said St. Luke's Protestant Episcopal Memorial Church and its successors as such Memorial Church Society for Protestant Episcopal Church religious purposes aforesaid and no longer."
The church edifice was built upon the land so donated and dedicated with funds donated by Charles B. Wright, who had procured the conveyance of the land from the Tacoma Land Company, undoubtedly with his own funds, and who intended that, when erected, it not only would be a place for worship according to the doctrines of the Protestant Episcopal Church of the United States and its ministry, but also to stand as a memorial to his deceased daughter, Kate Elizabeth, and to be known as St. Luke's Protestant Episcopal Memorial Church. That was its legal and ecclesiastical name; and as such it was accepted, dedicated and consecrated.
Webster defines a "memorial" as "anything intended to preserve the memory of a person or event; something which serves to keep some person or thing in remembrance, as a monument." The deed from Bishop Huston, in 1925, to the Parish of St. Luke's was conditioned that the grantee "by accepting this deed hereby undertakes to conform to the terms of said trust," thus showing that, at that time, both parties considered that there was more to this trust than one held for religious purposes solely.
Unquestionably, it was as a monument that Charles B. *Page 389 Wright caused the land to be donated and the church edifice erected in memory of his daughter, Kate Elizabeth, not temporarily at the option of the donees and trustee, but perpetually.
It is unfortunate that the congregation, wardens and vestry of St. Luke's church at this time are financially unable to maintain it as a church by supporting a rector and other auxiliaries for conducting services therein. They have, however, no legal right under the law to destroy the building and divert its use as a memorial and monument to Kate Elizabeth Wright. It is encyclopedic law that property held by a religious society, or its officers, in trust for certain specified purposes, must be applied to those purposes. Any diversion thereof is unauthorized unless conferred by statute. 34 Cyc. 1164. There is no such statute in this state.
This is not a case involving merely the power of the majority of a congregation to convey or incumber the real estate as such, as in the Hendryx case, or the Applequist case, cited by the majority. Nor respecting the power of a subsequently organized corporation to take over the property of a religious society after incorporation, as in the two Alabama cases cited; nor a case involving a division, or schism, in one church and controversies between the two factions as to which was entitled to hold the property, as in the Watson case by the United States supreme court, cited. It was there stated that it was a case of a division, or schism, in the church, but it was also there said (p. 723):
"And it would seem also to be the obvious duty of the court, in a case properly made, to see that the property so dedicated is not diverted from the trust which is thus attached to its use."
This case, when properly interpreted, is contrary to *Page 390 the theory of the prevailing opinion and of respondents herein.
With due deference to the bishop of the diocese of Olympia, the standing committee of the diocese, and the Rector, Wardens and Vestry of the parish of St. Luke's, it is my opinion that they simply misconceived their duties under this trust, and the Rector, Wardens and Vestry of St. Luke's, together with a majority of its congregation, have a somewhat laudable desire to escape its financial burdens.
Article XXXVII of Articles of Religion of the Protestant Episcopal Church of America, to which the author of this dissent has subscribed, which is a matter of common access and knowledge to all and which speaks for itself, reads:
"The Power of the Civil Magistrate extendeth to all men, as well Clergy as Laity, in all things temporal; but hath no authority in things purely spiritual. And we hold it to be the duty of all men who are professors of the Gospel, to pay respectful obedience to the Civil Authority, regularly and legitimately constituted."
A piece of real estate solidly attached to the soil has been conveyed by a bill of sale, like a portable building, or other chattel, on the land, and like Esau's heritage, sold for a mere "mess of pottage".
With nothing but the kindliest sympathy and consideration for all parties herein, my conscience compels me to dissent from the prevailing opinion for the reasons stated and others less potent. *Page 391