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Lowe v. First Presbyterian Church





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Walter P. Dahl, Judge, presiding.


Plaintiffs, the Presbytery of Chicago of the United Presbyterian Church in the United States of America (hereafter the Presbytery and United Presbyterian Church, respectively) and its Committee on Business Affairs, Budget and Building Counsel, filed suit for a mandatory injunction against defendants, the First Presbyterian Church of Forest Park and six individuals as trustees of the church, seeking to compel the conveyance of that church's real and personal property to the Church Extension Board of the Presbytery. The Cook County circuit court denied defendants' motions for dismissal of the complaint and for summary judgment, and awarded plaintiffs judgment on the pleadings. The First District Appellate Court reversed (Lowe v. First Presbyterian Church, 9 Ill. App.3d 415), and we allowed plaintiffs' petition for leave to appeal.

Plaintiffs allege that on October 8, 1968, the Presbytery adopted a resolution dissolving the congregation of the First Presbyterian Church of Forest Park as of October 31, 1968, and directed that the assets of the church be liquidated by the plaintiff committee. Defendant trustees subsequently refused to convey the real property or turn over the personal property of the church, and this suit followed.

The essence of this controversy is found in the allegations that the defendant church is a religious corporation (General Not For Profit Corporation Act, Ill. Rev. Stat. 1971, ch. 32, par. 163a et seq.) holding title to the real estate in controversy for the use and benefit of its congregation; and that the defendants constitute a member church of the Presbytery subject to its control and supervision. Plaintiffs assert that the defendant church is subordinate to the Presbytery and that under the provisions of chapter XXXII of the Form of Government of the United Presbyterian Church defendants are required to convey the property in accordance with the directions of the Presbytery. Chapter XXXII provides:

"Whenever hereafter a particular church is formally dissolved by the presbytery, or has become extinct by reason of the dispersal of its members, the abandonment of its work, or other cause, such property as it may have, both real and personal, shall be held, used and applied for such uses, purposes, and trusts as the presbytery may direct, limit, and appoint, or such property may be sold or disposed of as the presbytery may direct, in conformity with the Constitution of the United Presbyterian Church in the United States of America." Section 62.11.

"Whether by civil law the trustees of a particular church hold title to its property or are the officers of a corporation which holds title thereto, they shall deal with such property only as they may be authorized or directed by the session, and their authority in respect to the selling, mortgaging, and leasing of real property shall be subject also to any rights reserved to the congregation by civil law or the bylaws of the particular church and to the permission of presbytery as herein provided." Section 62.08.

Plaintiffs further allege that the defendant church in all of its operations has always recognized and honored the authority of the Presbytery until directed by the Presbytery to transfer its property. Defendants, in their amended answer, state that the Church Extension Board had previously conveyed and quitclaimed the property in question to them, and that plaintiffs are without authority to order defendants to reconvey the property to the Church Extension Board. Defendants deny that their church was ever subject to the control or supervision of the Presbytery, and while they do not deny a resolution was adopted by the Presbytery dissolving the defendant church, they assert that the resolution was an assumption of authority not existing in the organization of the Presbytery. They also allege that subsequent to the incorporation of the defendant church as a religious corporation, it paid out over $30,000 in rebuilding, remodeling and renovating the church building and premises, and that this work was paid for with the proceeds of a mortgage loan of $25,000 and the remainder from the defendant church's treasury. They also state that prior to incorporation the members provided all the funds needed for the maintenance and operation of the church building. Defendants further allege that the members of the defendant church unanimously desire to continue to hold regular church services.

Defendants' theory is that the conveyance by quitclaim deed to the defendant church was an outright transfer and, in the absence of an express declaration of trust, the property should not be subject to the control of the Presbytery. The appellate court agreed and reversed the judgment of the trial court, relying basically on Calkins v. Cheney (1879), 92 Ill. 463. Calkins involved a contract by a parish of the Protestant Episcopal Church to purchase a lot upon which to erect a church and parsonage. Money for the purchase and the project was obtained by donations from members of the parish and from rental or sale of pews in the proposed church building. The congregation intended to eliminate control of the property by the Bishop and retain sole control and management thereof. To that end it was arranged to convey the property to the "Trustees of Christ Church" with no express declaration of trust in the deed or any other document. Minority members of the congregation in Calkins filed suit to enjoin a rector deposed by the Protestant Episcopal Church from serving as rector in the Christ Church and to enjoin the congregation from compensating him, allowing him to officiate at services, or reside in the parsonage. In deciding the case the court looked to the deed conveying the property to the trustees of Christ Church. That deed contained no express declaration of trust for the Protestant Episcopal Church in general, nor was there a separate written declaration of trust by the trustees. The court also noted the clear efforts of the congregation and trustees to avoid interference by the Bishop. On these facts the court held that the property belonged outright to the congregation of Christ Church, was not held in trust for the benefit of the parent church, and was not subject to the control of any ecclesiastical judicatory.

Defendants in this suit and the appellate court, in the absence of an express declaration of trust for the benefit of the Presbytery or general church, have relied on Calkins. It is not disputed that legal title to the property here is in the trustees of the church corporation by virtue of the quitclaim deed. Therefore, assert defendants, plaintiffs have no right to order transfer of the property, since, they urge, the property is subject only to control by the local church. Defendants also cite Dubs v. Egli (1897), 167 Ill. 514; Illinois Classis of the Reformed Church v. Holben (1919), 286 Ill. 473, and Glader v. Schwinge (1929), 336 Ill. 551, as either following Calkins or citing it with approval.

While this approach has surface appeal, we do not believe the holding in Calkins is dispositive here. Resolution of the issue here requires us to do more than simply examine the deed conveying the property. In doing so, however, it is necessary to recognize that the freedom of religion guaranteed by both Federal and State constitutions limits the scope of action by a civil court in the settlement of disputes over church property. Courts have, with varying degrees of success, sought, in resolving such controversies, to formulate principles which preserve and protect the legitimate interest of the State without undesirable or impermissible interference in the internal operation of those rules which churches have chosen as their own form of government.

The more recent view of the law relating to church property disputes attaches substantial significance to the internal structure or polity of the congregation and the parent church. (Watson v. Jones, 80 U.S. (13 Wall.) 679, 726-727, 20 L.Ed. 666, 676; Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church in North America, 334 U.S. 94, 116, 97 L.Ed. 120, 136, 73 S.Ct. 143; First Presbyterian Church v. First Cumberland Presbyterian Church, 245 Ill. 74, 95.) A major factor in resolving questions of ownership and control of church property resulting from disputes between local and national church organizations is the structure of the parent church body and its relationship to the local church. Watson; Kedroff; Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 21 L.Ed.2d 658, 89 S.Ct. 601; First Presbyterian Church v. First Cumberland Presbyterian Church.

Watson is a century-old case which begins the modern view of the law on church property disputes. A Presbyterian congregation in Louisville, Kentucky, divided into two factions as the result of differing opinions regarding an oath stating opposition to slavery. Each faction claimed the local church building. The General Assembly of the Presbyterian Church decided that the majority, which favored the oath, was the legitimate successor to the congregation and entitled to use the property. The Supreme Court noted that the local congregation was a member of the national Presbyterian Church and subject to its control and system of ecclesiastical government. Therefore, since the General Assembly had decided the question, the court was bound by that decision. In classifying the questions concerning rights to property held by ecclesiastical bodies into three general categories, the court observed:

"1. The first of these is when the property which is the subject of controversy has been, by the deed or will of the donor, or other instrument by which the property is held, by the express terms of the instrument devoted to the teaching, support or spread of some specific form of religious doctrine or belief.

2. The second is when the property is held by a religious congregation which, by the nature of its organization, is strictly independent of other ecclesiastical associations, and so far as church government is ...

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