Watson v. Jones
80 U.S. 679 (1871)

Annotate this Case

U.S. Supreme Court

Watson v. Jones, 80 U.S. 13 Wall. 679 679 (1871)

Watson v. Jones

80 U.S. (13 Wall.) 679

Syllabus

1. When, in courts of concurrent jurisdiction, the pendency of a suit in one is relied on to defeat a second suit in the other, the identity of the parties, of the case made, and of the relief sought should be such that if the first suit had been decided, it could be pleaded in bar as a former adjudication.

2. In such cases, the proceedings in an appellate court are part of the proceedings in the first court, and orders made by it to be enforced by the court of primary jurisdiction are, while unexecuted, a part of the case in the first suit, which may be relied on as lis pendens in reference to the second suit.

3. Hence, an unexecuted order of this kind, made by a state court to restore possession to the parties who had been deprived of it by a decree which had been reversed, cannot be interfered with by another court by way of injunction, especially by a court of the United States, by reason of the Act of Congress of March 2, 1793, 1 Stat. at Large 334, § 5.

Page 80 U. S. 680

4. But the nature and character of the possession so decreed to be delivered may be inquired into by another court, and if it was of a fiduciary character, and the trust was not involved in the first suit, a second suit may be sustained in any court of competent jurisdiction to declare, define, and protect the trust, though the first suit may be still pending.

5. Controversies in the civil courts concerning property rights of religious societies are generally to be decided by a reference to one or more of three propositions:

(1st) Was the property or fund which is in question devoted by the express terms of the gift, grant, or sale by which it was acquired to the support of any specific religious doctrine or belief, or was it acquired for the general use of the society for religious purposes, with no other limitation?

(2d) Is the society which owned it of the strictly congregational or independent form of church government, owing no submission to any organization outside the congregation?

(3d) Or is it one of it number of such societies, united to form a more general body of churches, with ecclesiastical control in the general association over the members and societies of which it is composed?

6. In the first class of cases, the court will, when necessary to protect the trust to which the property has been devoted, inquire into the religious faith or practice of the parties claiming its use or control, and will see that it shall not be diverted from that trust.

7. If the property was acquired in the ordinary way of purchase or gift for the use of a religious society, the court will inquire who constitute that society or its legitimate successors and award to them the use of the property.

8. In case of the independent order of the congregation, this is to be determined by the majority of the society, or by such organization of the society as by its own rules constitute its government.

9. In the class of cases in which property has been acquired in the same way by a society which constitutes a subordinate part of a general religious organization with established tribunals for ecclesiastical government, these tribunals must decide all questions of faith, discipline, rule, custom, or ecclesiastical government.

10. In such cases where the right of property in the civil court is dependent on the question of doctrine, discipline, ecclesiastical law, rule, or custom, or church government, and that has been decided by the highest tribunal within the organization to which it has been carried, the civil court will accept that decision as conclusive, and be governed by it in its application to the case before it.

11. The principles which induced a different rule in the English courts examined and rejected as inapplicable to the relations of church and state in this country, and an examination of the American cases found to sustain the principle above stated.

Page 80 U. S. 681

This was a litigation which grew out of certain disturbances in what is known as the "Third or Walnut Street Presbyterian Church," of Louisville, Kentucky, and which resulted in a division of its members into two distinct bodies, each claiming the exclusive use of the property held and owned by that local church. The case was thus:

The Presbyterian Church in the United States is a voluntary religious organization, which has been in existence for more than three-quarters of a century. It has a written Confession of Faith, Form of Government, Book of Discipline, and Directory for Worship. The government of the church is exercised by and through an ascending series of "judicatories," known as Church Sessions, Presbyteries, Synods, and a General Assembly.

The Church Session, consisting of the pastor and ruling elders of a particular congregation, is charged with maintaining the spiritual government of the congregation, for which purpose they have various powers, among which is the power to receive members into the church and to concert the best measures for promoting the spiritual interests of the congregation. [Footnote 1] This body, which thus controls in each local church, is composed of the pastor and ruling elders. The number of elders is variable, and a majority of the Session governs. It acts, however, but as representing the congregation which elects it. The elders, so far as the church edifice is concerned, have no power to dispose of its use except as members of the Session.

Connected with each local church, and apparently without any functions in essence ecclesiastical, are what are called the "Trustees" -- three persons usually, in whom is vested for form's sake the legal title to the church edifice and other property, the equitable power of management of the property being with the Session. These Trustees are usually elected biennially; they are subject to the Session, and may be removed by the congregation.

The Presbytery, consisting of all the ministers and one

Page 80 U. S. 682

ruling elder from each congregation within a certain district, has various powers, among them the power to visit particular churches for the purpose of inquiring into their state and redressing the evils which may have arisen in them; to ordain, and install, remove, and judge ministers; and, in general, power to order whatever pertains to the spiritual welfare of the churches under their care. [Footnote 2]

The Synod, consisting of all the ministers and one ruling elder from each congregation in a larger district, has various powers, among them the power to receive and issue all appeals from Presbyteries; to decide on all references made to them; to redress whatever has been done by Presbyteries contrary to order; and generally to take such order with respect to the Presbyteries, Sessions, and people under their care as may be in conformity with the world of God and the established rules, and which tend to promote the edification of the church. [Footnote 3]

The General Assembly, consisting of ministers and elders commissioned from each Presbytery under its care, is the highest judicatory of the Presbyterian Church, representing in one body all of the particular churches of the denomination. Besides the power of receiving and issuing appeals and references from inferior judiciatories, to review the records of Synods, and to give them advice and instruction in all cases submitted to them in conformity with the constitution of the church, it is declared that it "shall constitute the bond of union, peace, correspondence, and mutual confidence among all our churches." [Footnote 4]

"To the General Assembly also belongs the power of deciding in all controversies respecting doctrine and discipline; of reproving, warning, or hearing testimony against any error in doctrine or immorality in practice in any Church, Presbytery, or Synod; . . . of superintending the concerns of the whole church; . . . of suppressing schismatical contentions and disputations; and, in general, of recommending and attempting reformation of

Page 80 U. S. 683

manners, and the promotion of charity, truth, and holiness through all the churches under their care. [Footnote 5]"

The Walnut Street Presbyterian Church, of which we have spoken, was organized about 1842, under the authority and as a part of the Presbyterian Church in the United States, and, with the assent of all its members, was received into connection with and under the jurisdiction of the Presbytery of Louisville and the Synod of Kentucky. It remained in such connection and under such jurisdiction, without any disturbance among its members, until the year 1865, when certain events took place in Kentucky which will be stated presently.

After the organization, to-wit, in 1853, the said local church purchased a lot of ground in Louisville, and a conveyance was made to the church's trustees to have and to hold to them, and to their successors, to be chosen by the congregation.

In 1854, the trustees of the church were incorporated with power to hold any real estate then owned by it, the property to pass to them and their successors in office. By the act, it was declared that the trustees, to be elected by the members of the congregation, should continue in office two years and until their successors were elected, "unless they shall sooner resign, or refuse to act, or cease to be members of the said church." The trustees were charged by the act with the duty of providing for the comfort and convenience of the congregation, the preservation of the property, and passing such regulations relative to the government and control of the church property as they might think proper, not inconsistent with the Constitution of the United States and the laws of Kentucky.

Though neither the deed nor charter said this in terms, it was admitted that both contemplated the connection of the local church with the general Presbyterian one, and subjected both property and trustees alike to the operation of its fundamental laws.

Page 80 U. S. 684

We now pass to some history of the disturbances to which we have referred as matter to be related.

With the outbreak of the war of the insurrection and the action of it upon the subject of slavery, a very excited condition of things originating with and influenced by that subject manifested itself in the Walnut Street Church. One of the earliest exhibitions of the matter was in reference to the reengagement as minister of a certain Reverend Mr. McElroy. The members of the church were asked by a majority of the Session, at this time composed of three persons, named Watson, Galt, and Avery, [Footnote 6] to make a call upon Mr. McElroy to become the pastor, but at a congregational meeting, the majority of the members declined to make the call. The majority of the Session (that is to say, Watson and Galt) renewed, notwithstanding, the engagement of Mr. McElroy for six months. In August, 1865, the majority of the congregation asked the Session that on the expiration of the then current six months of Mr. McElroy's engagement, no further renewal thereof should be made. In connection with these efforts of the majority of the Session (Watson and Galt) to maintain Mr. McElroy as preacher, charges were preferred against three members of the congregation, named B. F. Avery, T. J. Hackney, and D. McNaughtan, who had cooperated with the majority of it in the movements to obtain another minister. And about the same time, by way of counteraction, apparently, charges were preferred by some of the majority against Watson and Galt. While these troubles were existing, some of the members of the church appealed to the Synod of Kentucky, which body, on the 20th of October, 1865, appointed a committee to visit the congregation, "with power to call a congregational meeting for the purpose of electing additional ruling elders, calling a

Page 80 U. S. 685

pastor, or choosing a stated supply, and doing any other business competent to a congregational meeting that may appear to them, the said congregation, necessary for their best interests." The synodical committee thus appointed called a congregational meeting for the purpose of the election, in January, 1866. Watson and Galt refused to open the church for the meeting, but the majority, organizing themselves on the sidewalk, elected a certain J. A. Leach, with B. F. Avery and D. McNaughtan (which last two names have already appeared in our history), additional ruling elders, who went through what they deemed a valid process of ordination and installment. The other admitted elders were Watson, Galt, and Hackney. They trustees of the church were Henry Farley, George Fulton, and B. F. Avery, and they had they actual possession of the church property. Fulton and Farley, uniting with Watson and Galt, denied the validity of the election of Avery, Leach, and McNaughtan, and refused to allow them any participation as elders in the control of the church property. Hackney admitted the validity of such election, and recognized Avery, Leach, and McNaughtan as lawful elders.

In this state of things, Avery and his associates filed a bill, on the 1st of February, 1866, in the Louisville Chancery Court against Watson, Galt, Fulton, and Farley for the purpose of asserting the right of Avery, Leach, and McNaughtan, as elders, to participate with the other elders in the management of the church property for purposes of religious worship.

In the progress of that case the three trustees, Farley, Fulton, and Avery were appointed, on the 20th of March, 1866, receivers "to take charge of the church building, and all property belonging to the said church" during the pendency of the suit or until the further order of the court, and they were

"ordered to keep and preserve the said property, and keep it in repair to the best of their ability, and to open the various portions of the building ready for worship, and others services of said church, according to the laws and usages of the Presbyterian Church, and not to prevent any

Page 80 U. S. 686

part of the congregation from attendance upon the meetings of said church and enjoying the use thereof according to their rights and privileges as members thereof."

At a subsequent date -- June 15, 1866 -- the chancellor delivered an opinion recognizing Avery, Leach, and McNaughtan as elders, and entered an order that the trustees, Farley, Fulton, and Avery, now receivers, open the church for divine worship and congregational meetings whenever ordered to do so by the Session of the church, constituted of the said Avery, Hackney, and McNaughtan, Leach, Watson, and Galt, or a majority thereof.

The execution of this order was apparently so far interfered with by Watson, Galt, Fulton, and Farley as practically to prevent religious services in the church edifice. At all events, on the 23d of July, 1866, it was ordered:

"That the MARSHAL OF THIS COURT do take possession of the church property until the further order of the court, and that the same be opened: 1. For Sunday schools and other like purposes. 2. For the meeting of the Session when notified thereof. 3. For public worship, and such using of the pulpit and the house generally as the Session shall order. And it is ordered that he be respectful to the order of the Session, as this court said on the 15th of June. The Session, according to the decision of the General Assembly, at Peoria, Illinois, has control of the church buildings &c. The keys of the church &c., are ordered to be delivered to the marshal."

The marshal took possession by virtue of this order. Thenceforward Watson, Galt, Fulton, and Farley abandoned connection with the property and participation in its control.

Thus matters stood, so far as the church property was concerned, up to the final decree in Avery v. Watson, made May 7, 1867, when it was decreed that Leach, Avery, and McNaughtan, with Hackney, Watson, and Galt, were ruling elders that constituted the Session of the Walnut Street Church, and the management of the said property for the purpose of worship and other religious service was committed to their care, under the regulations of the Presbyterian Church in the United States of America, and it was ordered

Page 80 U. S. 687

that the defendants, Watson and Galt, pay to the plaintiffs their costs.

It will be observed that the marshal was not, by the terms of the decree, directed to give up his possession, nor was any motion or order afterwards made requiring him to give up or discharging him as receiver. Nor did he in fact, so far as appeared from the record, ever abandon possession, although the property continued, as it had been since July 23, 1866, subject to the exclusive control of Avery and his associates.

From this final decree an appeal was taken to the Court of Appeals of Kentucky, but Watson and his friends did not supersede that decree nor take other step to prevent its immediate execution.

The decree of the chancellor was reversed by the Court of Appeals of Kentucky. [Footnote 7] The language of the order of reversal was thus:

"And the judgment of the chancellor, which commits the management and control of said church property to said Avery, McNaughtan, and Leach, in conjunction with said Watson, Galt, and Hackney, is therefore deemed erroneous. Wherefore the judgment is reversed and the cause remanded for proper corrective proceedings respecting the possession, control, and use of the church property, and for final judgment in conformity to this opinion."

As to the nature of the issues in this case of Avery v. Watson, the Court of Appeals of Kentucky said: [Footnote 8]

"As suggested in the argument and apparently conceded on both sides, this is not a case of division or schism in a church, nor is there any question as to which of TWO BODIES should be recognized as the Third or Walnut Street Presbyterian Church; nor is there any controversy as to the authority of Watson and Galt to act as ruling elders; but the sole inquiry to which we are restricted, as we conceive, is whether Avery, McNaughtan, and Leach are ALSO ruling elders, and therefore members of the Session of the church. "

Page 80 U. S. 688

On the 21st of February, 1868, the opinion and mandate of the Court of Appeals was filed in the Louisville Chancery Court, and the defendants moved the court

"to restore to them, and those entitled under the said opinion, the possession, use, and control of the church building and property, which was taken from them by the marshal of the court, under orders of court, during the pendency of the action, and to dismiss the plaintiffs' petition with costs."

On the 28th of February, 1868, the complainants in the case of Avery v. Watson filed a petitioner in equity against the defendants and moved the court for an injunction

"enjoining them from any further prosecution of their said motion made on the 21st of February, 1868, and from all proceeding by motion, suit, or otherwise to obtain possession, control, or use of the property of the Walnut Street Presbyterian Church of Louisville."

The petition in equity thus presented averred that subsequent to the original decree of the chancellor, Watson, Galt, and the others adhering to them had voluntarily withdrawn from the Walnut Street Presbyterian Church, and from the Presbyterian Church in the United States of America, and had thereby ceased to be members of the said church or to have any interest in the property held by that church; that the plaintiffs in that injunction suit, together with those united in interest with them, constituted at that time the only beneficiaries of the trust property, and that therefore the attempt of Watson and his friends, under a mere order of restitution, based upon the reversal by the appellate court of the chancellor's decree, to obtain the possession of the property, as elders and trustees, was a fraud upon the rights of the beneficiaries of the property. And it charged that Watson and his friends intended to use the property as the property exclusively of their party and to deny the rights of all others as members.

On the 20th day of March, 1868, the chancellor granted upon this petition an injunction against the defendants in the action, enjoining them from any further proceeding on their motion made on February 21, 1868, the former decree

Page 80 U. S. 689

being at the same time so far reversed that the original petition was dismissed and costs awarded to the defendants.

Watson and his friends now obtained from the Court of Appeals of Kentucky a summons against the chancellor of the Louisville Chancery Court "to appear and show cause why he has refused to carry into effect the mandate of said court," and the chancellor having appeared, an opinion upon the rule was delivered. [Footnote 9]

In the last-named case, it was decided:

1. That the opinion and mandate in the previous decision in the appellate court, [Footnote 10] imported a direction to restore to the defendants such rights of possession, control, and use of the property as the former judgment had erroneously taken or withheld from them.

2. That "no undecided question was reserved for further litigation in the court below."

3. That the Chancery Court must enter the proper order directed by the Court of Appeals, and

"if there be any equitable reason for not coercing the order or decree for restitution, it should be made available as a ground for enjoining, and not for preventing or modifying, the order of restitution."

4. That the petition in equity of Avery and others, although intended to operate both as a written defense to the action of the court sought by the defendants in the old suit and at the same time as the initial pleading in a new one, was to be regarded, so far as the action of the chancellor was concerned, as a response of the plaintiffs, interposed to prevent the rendering of a judgment in conformity to the decision and mandate of this Court.

5. That if any equitable reasons existed for not enforcing restitution, they should be asserted in a new suit, enjoining the enforcement of the order of restitution after such order had been entered.

Accordingly the Court of Appeals, June 26, 1868, on this rule against the chancellor, ordered that the latter make an

Page 80 U. S. 690

order

"restoring the possession, use, and control of the church building and property to the parties entitled thereto according to the said opinion, and so far as they were deprived thereof by the marshal of the Chancery Court under its orders."

The parties in whose favor, according to the opinion, the order of restitution was to be made were of course Watson, Galt, and Hackney, ELDERS, and Fulton, Farley, and Avery, TRUSTEES.

After this last decision of the Kentucky Court Appeals, the petition for injunction filed in the Louisville Chancery Court on the 28th of February, 1868, was, on the motion of those who filed it, dismissed without prejudice.

The present suit in the circuit court was begun July 17th, 1868.

Subsequently, on the 18th of September, 1868, the chancellor directed the marshal of the Chancery Court

"to restore the possession, use, and control of the church building and property . . . to Farley, Fulton, and Avery, or a majority of them, as trustees, and to Watson, Galt, and Hackney, or a majority of them, as ruling elders of the said church, and to report how he had executed the order,"

reserving the case for such further order as might be necessary to enforce full obedience.

Thus far as to the controversy in the Walnut Street Church, involved in the particular case of Watson v. Avery in the state courts of Kentucky.

We have already adverted to the war of the insurrection, its action on the subject of slavery, and the feeling engendered by this action in the special congregation of the Walnut Street Church.

We now speak of the same subject of the war, of slavery &c., in its more general relation with the judicatories above that local church, and of the way in which this local church was affected by and identified itself with the action of the more general church. From the beginning of the war to its close, the General Assembly of the Presbyterian Church, at its annual meetings, expressed in Declaratory Statements

Page 80 U. S. 691

or Resolutions, its sense of the obligation of all good citizens to support the federal government in that struggle, and when, by the proclamation of President Lincoln, emancipation of the slaves of the states in insurrection was announced, that body also expressed views favorable to emancipation and adverse to the institution of slavery. At its meeting in Pittsburg in May, 1865, instructions were given to the Presbyteries, the Board of Missions, and to the Sessions of the churches that when any person from the southern states should make application for employment as missionary or for admission as members or ministers of churches, inquiry should be made as to their sentiments in regard to loyalty to the government and on the subject of slavery, and if it was found that they had been guilty of voluntarily aiding the war of the rebellion or held the doctrine announced by the large body of the churches in the insurrectionary states which had organized a new general assembly, that

"the system of negro slavery in the South is a divine institution, and that it is the peculiar mission of the Southern church to conserve that institution,"

they should be required to repent and forsake these sins before they could be received.

In the month of September thereafter, the Presbytery of Louisville, under whose immediate jurisdiction was the Walnut Street Church, adopted and published in pamphlet form what it called

"A Declaration and Testimony against the erroneous and heretical doctrines and practices which have obtained and been propagated in the Presbyterian Church of the United States during the last five years."

This Declaration denounced in the severest terms the action of the General Assembly in the matters we have just mentioned, declared an intention to refuse to be governed by that action, and invited the cooperation of all members of the Presbyterian Church who shared the sentiments of the Declaration, in a concerted resistance to what they called "the usurpation of authority" by the Assembly.

The General Assembly of 1866, denounced in turn the Declaration and Testimony, and declared that every Presbytery

Page 80 U. S. 692

which refused to obey its order should be ipso facto dissolved and called to answer before the next General Assembly, giving the Louisville Presbytery an opportunity for repentance and conformity. The Louisville Presbytery divided, and the adherents of the Declaration and Testimony sought and obtained admission, in 1868, into "the Presbyterian Church of the Confederate States," a body which had several years previously withdrawn from the General Assembly of the United States and set up a new organization.

In January, 1866, the congregation of the Walnut Street Church became divided in the manner stated above, each asserting that it constituted the church, although the issue as to membership was not distinctly made in the chancery suit of Avery v. Watson already so fully described. Both parties at this time recognized the same superior church judicatories.

On the 19th June, 1866, the Synod of Kentucky became divided, the opposing party in each asserting respectively that it constituted the true Presbytery and the true Synod, each meanwhile recognizing and professing to adhere to the same General Assembly. Of these contesting bodies, Watson and his party adhered to one, those whom he opposed to the other. The Presbytery and Synod to which these last -- that is to say, Avery or Hackney and his party, adhered being known respectively as the McMillan Presbytery and the Lapsley Synod.

On the 1st of June, 1867, the Presbytery and Synod recognized by Watson and his party were declared by the General Assembly to be

"in no sense a true and lawful Synod and Presbytery in connection with and under the care and authority of the General Assembly of the Presbyterian Church in the United States of America,"

and were permanently excluded from connection with or representation in the Assembly. By the same resolution, the Synod and Presbytery adhered to by those whom Watson and his party opposed were declared to be the true and lawful Presbytery of Louisville and Synod of Kentucky.

Page 80 U. S. 693

The Synod of Kentucky thus excluded, by a resolution adopted the 28th June, 1867, declared

"That in its future action, it will be governed by this recognized sundering of all its relations to the aforesaid revolutionary body (the General Assembly) by the acts of that body itself."

The Presbytery took substantially the same action.

In this final severance of Presbytery and Synod from the General Assembly, Watson and his friends, on the one side, and those whom he opposed, on the other, continued to adhere to those bodies at first recognized by them respectively. This latter party now included, among many others, a certain William Jones, with his wife, and one Eleanor Lee, who had been admitted into membership by the Hackney &c., Session.

The reader will now readily perceive, if he have not done so before, how in the earliest stages of this controversy it was found that a majority of the members of the Walnut Street Church concurred with the action of the General Assembly, while Watson and Galt as ruling elders, and Fulton and Farley as trustees, constituting in each case a majority of the Session and of the trustees, with Mr. McElroy, the pastor, sympathized with the party of the Declaration and Testimony of the Louisville Presbytery. And how this led to efforts by each party to exclude the other from participation in the Session of the church and the use of the church property, as well as to all that followed.

The grounds on which the Court of Appeals reversed the chancellor's decision were, of course, that the General Assembly, Synod, and Presbytery of the Presbyterian Church were all subject, in the exercise of their functions, to Constitutions (the standards mentioned at the beginning of this report); that when they violated these, their acts were beyond their jurisdiction and void; that whether they had violated them or not was a matter which the civil courts, on an examination of the Constitutions, could properly pass on, and deciding further and finally as fact, after an examination by the court itself of these standards, that in their Declaratory Statements and Resolutions and other

Page 80 U. S. 694

deliverances enforcing loyalty, they had violated them, and that their acts were accordingly void.

Thus things stood in July, 1868, and the term for which the old trustees had in more peaceful times been elected having expired, the persons worshipping in the Walnut Street Church and so in possession, elected as new ones three persons whose names now first figure on our report. These persons were named McDougall, McPherson, and Ashcraft.

The newly elected elders and the majority of the congregation adhered to and had been recognized by the General Assembly as the regular and lawful Walnut Street Church and officers. Galt and Watson, Fulton and Farley, and a minority of the members, had cast their fortunes with those who adhered to the party of the Declaration and Testimony.

In this state of things, Jones, his wife, and Lee, on the 21st July, 1868, three months before the mandate of September 18 to the Chancery Court, mentioned at page 80 U. S. 690, filed a bill in chancery in the Circuit Court of the United States for the District of Kentucky against Watson and Galt, [Footnote 11] Fulton, Farley, [Footnote 12] and Avery, the church corporation, and McDougall, McPherson, and Ashcraft, as trustees. The complainants alleged that they were citizens of Indiana and that each of the natural persons already named were residents of Louisville and citizens of Kentucky, and that the church corporation was a corporation created by Kentucky and doing business in that state. They alleged further that they were members in good and regular standing of the said church, attending its religious exercises under the pastorship of the Rev. J. S. Hays, and that the defendants, Fulton and Farley, who pretended without right to be trustees of the church, supported and recognized as such by the defendants, Watson and Galt, who also pretended without right to be ruling elders, were threatening, preparing, and about to take unlawful possession

Page 80 U. S. 695

of the house of worship and grounds belonging to the church and to prevent Hays, who was the rightful pastor, from ministering therein, refusing to recognize him as pastor, and to recognize as ruling elder, Hackney, who was the sole lawful ruling elder, and that when they should obtain such possession, they would oust Hays and Hackney and those who attended their ministrations, among whom the complainants represented themselves to be.

They further alleged that Hackney, whose duty it was as elder, and McDougall, McPherson, and Ashcraft, whose duty it was as trustees to protect the rights thus threatened, by such a proceeding in the courts as would prevent the execution of the threats and designs of the other defendants, refused to take any steps to that end.

They further alleged that the Walnut Street Church, of which they were members, now formed and had ever since its organization in the year 1842 formed a part of the Presbyterian Church of the United States of America, known as the Old School, which was governed by a written constitution that included the Confession of Faith, Form of Government, Book of Discipline, and Directory for Worship, and that the governing bodies of the general church above the Walnut Street Church were, in successive order, the Presbytery of Louisville, the Synod of Kentucky, and the General Assembly of the Presbyterian Church of the United States; that while the complainants and about 115 members who worshipped with them, and Mr. Hays (the pastor), Hackney (the ruling elder), and McDougall, McPherson, and Ashcraft (the trustees), were now in full membership and relation with the lawful General Presbyterian Church aforesaid, Watson and Galt, Fulton and Farley, with about 30 persons formerly members of the said church, worshipping under one Dr. Yandell as pastor, had seceded and withdrawn themselves from the Walnut Street Church and from the General Presbyterian Church in the United States, and had voluntarily connected themselves with and were now members of another religious society, and that they had repudiated and did now repudiate and renounce the authority

Page 80 U. S. 696

and jurisdiction of the various judicatories of the Presbyterian Church of the United States and acknowledge and recognize the authority of other church judicatories which were disconnected from the Presbyterian Church of the United States and from the Walnut Street Church. And they alleged that Watson and Galt had been, by the order of the General Assembly of the said church, dropped from the roll of elders in said church for having so withdrawn and renounced its jurisdiction, and that the Assembly had declared the organization to which the plaintiffs adhered as the true and only Walnut Street Presbyterian Church of Louisville.

The prayer of the bill was that

"Watson, Galt, Fulton, and Farley be restrained by an injunction issuing out of the circuit court from taking or attempting to take possession of the house of worship and other property of the Walnut Street Church, and from interfering with REV. J. S. HAYS PREACHING IN SAID HOUSE OF WORSHIP; also that Watson and Galt be restrained in like manner from controlling or attempting to control or manage the said property in the capacity of elders of the church; also that Fulton and Farley be restrained in like manner from controlling or attempting to control or manage the said property as trustees of said church . . . and that the complainants have generally such other and further relief as the nature of their case required."

The answer having alleged that, pending the final process in the Chancery Court, two persons, named Heeter and Given, had been elected additional ruling elders, and that one Polk had been elected trustee in the place of Avery, the complainants amended their bill accordingly, and by agreement the answer of the original defendants was made the answer of the new parties.

The defendants, Hackney, McDougall, McPherson, and Ashcraft answered, admitting the allegations of the bill and that though requested they had refused to prosecute legal proceedings in the matter, because as they thought any effort to that end in the courts of the State of Kentucky would prove useless.

Page 80 U. S. 697

The defendants Watson and Galt, Fulton and Farley, answered, and after declaring their belief that the complainants were lately citizens of Kentucky and that their citizenship in Indiana was merely for the purpose of filing this bill in the federal court, denied almost every allegation of the bill. They set up that though they had been deprived of their former actual possession of the church edifice and property by the illegal and now overruled decree of the Louisville Chancery Court, they had nevertheless maintained and kept up a regular and valid organization of the Walnut Street Presbyterian Church -- the only regular and valid organization that had been kept up; that they were the lawful officers of that church, and that they and those whom they represented were its true members. They denied having withdrawn from either the local or the general church, and denied that the action of the General Assembly cutting them off was within its constitutional authority. They represented that the plaintiffs were not and never had been lawfully admitted to membership in the Walnut Street Church, and had no such interest in it as would sustain this suit, and they set up and relied upon the suit in the Chancery Court of Louisville, which they represented was still pending and which they stated involved the same subject matter and was between the same parties in interest as the present one. They alleged that in that suit, they had been decreed to be the only true and lawful trustees and elders of the Walnut Street Church, and that an order had been made to place them in possession of the church property which order remained unexecuted, and that the property was still in the possession of the marshal of that court as its receiver. These facts were relied on in bar to the present suit.

The case coming on to be heard, the circuit court declared that it seemed to it that the complainants were members of the Third or Walnut Street Presbyterian Church in Louisville, and as such had a beneficial interest in the church building and other property in the pleadings mentioned.

That the Reverend J. S. Hays was pastor; Hackney, Avery, McNaughtan, and Leach, ruling elders, and McDougall,

Page 80 U. S. 698

McPherson, and Ashcraft, trustees, and that they were respectively entitled to exercise whatever authority in the said church, or over its members or property, rightfully belonged to pastor, elders, and trustees, respectively, in churches in connection with "The Presbyterian Church in the United States of America," Old School, and according to the regulations and usages of that church.

That McDougall, McPherson, and Ashcraft, trustees, were in regular succession from the trustees named in the deed of conveyance of the church property in 1853, and likewise in regular succession from the trustees named in the act of incorporation, and that as such trustees they were entitled to the exclusive control of the church building and other property of said church for the purposes of worship by the members of the said church, in accordance with the regulations and usages of the Presbyterian Church in the United States.

That those only were to be recognized as members of the Walnut Street Church who adhered to and recognized the authority of the Presbyterian Church in the United States of America and the various church judicatories which submit to its jurisdiction, and in determining what was the true Presbytery of Louisville, and true Synod of Kentucky, having jurisdiction over the said Walnut Street Presbyterian Church, its officers and members, this Court and all other civil tribunals were concluded by the action of the General Assembly of said Presbyterian Church in the United States of America.

That those members of the Walnut Street Church who worshipped statedly at the church edifice [position in the city of Louisville described], in said city, who had as their pastor the Reverend J. S. Hays, and who recognized Hackney, Avery, Leach, and McNaughtan as ruling elders, and McDougall and McPherson as trustees, including all those connected with them, who had been received into said church since January 1, 1866, under Hackney, Avery, Leach, and McNaughtan as elders, or under the ministration of Hays as pastor, constituted the Third or Walnut Street Presbyterian Church in Louisville, and the sole beneficiaries

Page 80 U. S. 699

for whose use the property mentioned in the pleadings was dedicated, and that the said persons, together with their pastor, elders, and trustees, had the exclusive right to use the same according to the regulations and usages of the Presbyterian Church of the United States of America.

It seemed further to the court that the Rev. Dr. Yandell was not pastor of the said Third or Walnut Street Presbyterian Church, nor were Galt, Watson, Heeter, and Given, or either of them, elders in the said church. And that Fulton, Farley, and Polk were not trustees.

That all those persons who pretended to be members of the said church, but who did not recognize Hays as pastor, or Hackney, Avery, Leach, and McNaughtan as elders, or McDougall, McPherson, and Ashcraft as trustees, and who recognized Watson, Galt, Given, and Heeter as elders, and Fulton, Farley, and Polk as trustees, and worshipped separately and apart from those hereinbefore declared to be the sole beneficiaries of said property, and who denied the authority of Hays as pastor, and also the ecclesiastical authority of the McMillan Presbytery of Louisville and of the Lapsley Synod of Kentucky, did not have any connection with, nor were they members of, the Third or Walnut Street Presbyterian Church, for whose use the property in question was conveyed and dedicated, nor had the said persons, or any of them, any beneficial interest in it, nor were they entitled to the use of it in any way whatever as members of the said church.

It was thereupon decreed:

1st. That the defendants, Heeter, Given, and Polk be enjoined from taking possession of and from using or controlling the church edifice and other property of the Walnut Street Church except as they or any one of them may choose to attend religious worship or other religious exercises in the same manner as other persons not officers or members of said church.

2d. That the defendants Watson, Galt, Fulton, Heeter, Given, Polk, Farley and all others be enjoined from so using or controlling the said church edifice or other property of the

Page 80 U. S. 700

church, as in any wise to interfere with the ministrations therein of Hays as pastor or with the exercise by him and by Hackney and others, recognized as elders in the said church by those herein declared to be sold beneficiaries of said property, of any authority in the said church or over its property or members which rightfully belongs to the pastors and elders of the churches in connection with and according to the usages of the Presbyterian Church of the United States of America.

3d. That the defendants Watson, Galt, Heeter, Given, Fulton, Farley and Polk and all others be enjoined from using or controlling the church edifice and property in any other manner than as the property exclusively of the persons hereinbefore declared to be the Third or Walnut Street Presbyterian Church of Louisville and the sole beneficiaries of said property, having Hays as pastor, and recognizing Hackney, Avery, Leach, and McNaughtan as elders, and McDougall, McPherson, and Ashcraft as trustees. And that they and all others be enjoined from interfering in any manner with the use of the said property by the members of the said church hereinbefore declared to be such and by such as might be hereafter admitted into said church according to its forms, and who are or might become connected with and under the care and authority of the General Assembly of the Presbyterian Church in the United States of America and the several judicatories which submit to the authority of said Assembly, and from hindering or preventing anyone from worshipping in said church or participating in any of its religious exercises according to the usages of said church.

From this decree, Watson and the other defendants appealed.

Page 80 U. S. 713

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