PARKER, Judge.
After the record on appeal in this case was docketed in this Court, defendants filed a motion in this Court to' dismiss plaintiffs’ action under Rule 41(d) of the Rules of Civil Procedure on the grounds that at the time this action was commenced on 15 March 1971 the costs had not been paid in a prior action in which judgment of voluntary dismissal without prejudice had been entered on 18 February 1971. The record does not disclose that this question was raised in the trial court at any time by motion or otherwise. Defendants’ motion, made for the first time in this Court, comes too late and is denied'.
Plaintiffs also filed a motion in this Court, their motion being to dismiss defendants’ appeal on the grounds that appellants’ assignments of error as set forth in the record on appeal do not comply with requirements of the Rules of this Court. This motion is also denied. The appeal is itself an excep
tion to the judgment and to any matter appearing on the face of the- record proper, Strong, N. C. Index 2d, Appeal and Error, § 26, and, as hereinafter noted, our decision on this appeal is rendered upon matters thus appearing. Accordingly, we now consider the substantial constitutional question presented by the appeal in this case.
“The legal or temporal tribunals of the State have no jurisdiction over, and no concern with, purely ecclesiastical questions and controversies, for there is a constitutional guarantee of freedom of religious profession and worship, as well as an equally firmly established separation of church and state, but the courts do have jurisdiction, as to civil, contract and property rights which are involved in, or arise from, a church controversy.”
Reid v. Johnston,
241 N.C. 201, 85 S.E. 2d 114. As that case illustrates, in resolving conflicts as to property rights over which the courts do have jurisdiction, particularly in cases such as the present one involving a controversy as to property rights between two factions of an independent or congregational church, the courts of this and of other states have on occasion felt it necessary and have recognized the judicial . power to inquire into and to make determination as to whether one group or the other had departed radically and fundamentally from the characteristic usages, customs, doctrines and practices which prevailed within the church before the controversy arose. See: Annotation, 15 A.L.R. 3d 297. However, the view that civil courts may properly enter upon such an inquiry has not been universally accepted as correct. More than one hundred years ago Justice Miller of the United States Supreme Court expressed a contrary view. In a dictum statement in
Watson v. Jones,
80 U.S. 679, 20 L.Ed. 666, he said:
“The second class of cases which we have described has reference to the case of a church of a strictly congregational or independent organization, governed solely within, itself, either by a majority of its members or by such other local organism as it may have instituted for the purpose of ecclesiastical government; and to property held by such a church, either by way of purchase or donation, with no* other specific trust attached to it in the hands of the church than that it is for the use of that congregation as a religious society.
“In such cases, where there is a schism which leads to* a separation into distinct and conflicting bodies, the rights;
of such bodies to the use of the property must be determined by the ordinary principles which govern voluntary associations. If the principle of government in such cases is that the majority rules, then the numerical majority of members must control the right to the use of the property. If there be within the congregation officers in whom are vested the powers of such control, then those who adhere to the acknowledged organism by which the body is governed are entitled to the use of the property. The minority in choosing to separate themselves into a distinct body, and refusing to recognize the authority of the governing body, can claim no rights in the property from the fact that they had once been members of the church or congregation.
This ruling admits of no inquiry into the existing religious opinions of those who comprise the legal or- regular organization;
for, if such was permitted, a very small minority, without any officers of the church among.them, might be found to be the only faithful supporters of the religious dogmas of the founders of the church. There being no such trust imposed upon the property when purchased or given, the court will not imply one for the purpose of expelling from its use those who by regular succession and order constitute the church, because they may have changed in some respect their views of religious truth.” (Emphasis added.)
Watson v. Jones, supra,
was a
pre-Erie R. Co. v. Tompkins
diversity decision reflecting federal general law and was decided before the First Amendment was made applicable to the States. Referring to the above-quoted portion of the opinion in the
Watson
case, and quoting from an Annotation in 8 A.L.R. .at p. 112, the opinion in
Reid v. Johnston, supra,
expressed the view that the principles set forth in
Watson
appear “ ‘to have been stated too broadly and without proper qualification, in that they do not make proper allowance for the possibility that the action of the majority — assuming that by the law of the society the majority rule prevails — may involve so wide a departure from the fundamental and characteristic beliefs or polity of the .society that to give it effect as to property rights would involve a perversion of the property from the implied trust to which it is subject, and because they fail to recognize that in such case the real identity of the society is no longer lodged with the majority faction, but resides with the minority faction, which re
mains faithful to the fundamental and distinctive beliefs and polity of the society.’ ”
In the years since
Watson
was decided, the United States Supreme Court has held that by virtue of the Fourteenth Amendment the First Amendment guarantee of religious liberty precludes the intrusion into ecclesiastical matters by the states, either in their legislative or judicial capacities.
Cantwell v. Connecticut,
310 U.S. 296, 84 L.Ed. 1213, 60 S.Ct. 900, 128 A.L.R. 1352 (1940);
Kedroff v. St. Nicholas Cathedral,
344 U.S. 94, 97 L.Ed. 120, 73 S.Ct. 143 (1952);
Kreshik v. St., Nicholas Cathedral,
363 U.S. 190, 4 L.Ed. 2d 1140, 80 S.Ct. 1037 (1960). More recently, in
Presbyterian Chwrch v. Hull Church,
393 U.S. 440, 21 L.Ed. 2d 658, 89 S.Ct.
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PARKER, Judge.
After the record on appeal in this case was docketed in this Court, defendants filed a motion in this Court to' dismiss plaintiffs’ action under Rule 41(d) of the Rules of Civil Procedure on the grounds that at the time this action was commenced on 15 March 1971 the costs had not been paid in a prior action in which judgment of voluntary dismissal without prejudice had been entered on 18 February 1971. The record does not disclose that this question was raised in the trial court at any time by motion or otherwise. Defendants’ motion, made for the first time in this Court, comes too late and is denied'.
Plaintiffs also filed a motion in this Court, their motion being to dismiss defendants’ appeal on the grounds that appellants’ assignments of error as set forth in the record on appeal do not comply with requirements of the Rules of this Court. This motion is also denied. The appeal is itself an excep
tion to the judgment and to any matter appearing on the face of the- record proper, Strong, N. C. Index 2d, Appeal and Error, § 26, and, as hereinafter noted, our decision on this appeal is rendered upon matters thus appearing. Accordingly, we now consider the substantial constitutional question presented by the appeal in this case.
“The legal or temporal tribunals of the State have no jurisdiction over, and no concern with, purely ecclesiastical questions and controversies, for there is a constitutional guarantee of freedom of religious profession and worship, as well as an equally firmly established separation of church and state, but the courts do have jurisdiction, as to civil, contract and property rights which are involved in, or arise from, a church controversy.”
Reid v. Johnston,
241 N.C. 201, 85 S.E. 2d 114. As that case illustrates, in resolving conflicts as to property rights over which the courts do have jurisdiction, particularly in cases such as the present one involving a controversy as to property rights between two factions of an independent or congregational church, the courts of this and of other states have on occasion felt it necessary and have recognized the judicial . power to inquire into and to make determination as to whether one group or the other had departed radically and fundamentally from the characteristic usages, customs, doctrines and practices which prevailed within the church before the controversy arose. See: Annotation, 15 A.L.R. 3d 297. However, the view that civil courts may properly enter upon such an inquiry has not been universally accepted as correct. More than one hundred years ago Justice Miller of the United States Supreme Court expressed a contrary view. In a dictum statement in
Watson v. Jones,
80 U.S. 679, 20 L.Ed. 666, he said:
“The second class of cases which we have described has reference to the case of a church of a strictly congregational or independent organization, governed solely within, itself, either by a majority of its members or by such other local organism as it may have instituted for the purpose of ecclesiastical government; and to property held by such a church, either by way of purchase or donation, with no* other specific trust attached to it in the hands of the church than that it is for the use of that congregation as a religious society.
“In such cases, where there is a schism which leads to* a separation into distinct and conflicting bodies, the rights;
of such bodies to the use of the property must be determined by the ordinary principles which govern voluntary associations. If the principle of government in such cases is that the majority rules, then the numerical majority of members must control the right to the use of the property. If there be within the congregation officers in whom are vested the powers of such control, then those who adhere to the acknowledged organism by which the body is governed are entitled to the use of the property. The minority in choosing to separate themselves into a distinct body, and refusing to recognize the authority of the governing body, can claim no rights in the property from the fact that they had once been members of the church or congregation.
This ruling admits of no inquiry into the existing religious opinions of those who comprise the legal or- regular organization;
for, if such was permitted, a very small minority, without any officers of the church among.them, might be found to be the only faithful supporters of the religious dogmas of the founders of the church. There being no such trust imposed upon the property when purchased or given, the court will not imply one for the purpose of expelling from its use those who by regular succession and order constitute the church, because they may have changed in some respect their views of religious truth.” (Emphasis added.)
Watson v. Jones, supra,
was a
pre-Erie R. Co. v. Tompkins
diversity decision reflecting federal general law and was decided before the First Amendment was made applicable to the States. Referring to the above-quoted portion of the opinion in the
Watson
case, and quoting from an Annotation in 8 A.L.R. .at p. 112, the opinion in
Reid v. Johnston, supra,
expressed the view that the principles set forth in
Watson
appear “ ‘to have been stated too broadly and without proper qualification, in that they do not make proper allowance for the possibility that the action of the majority — assuming that by the law of the society the majority rule prevails — may involve so wide a departure from the fundamental and characteristic beliefs or polity of the .society that to give it effect as to property rights would involve a perversion of the property from the implied trust to which it is subject, and because they fail to recognize that in such case the real identity of the society is no longer lodged with the majority faction, but resides with the minority faction, which re
mains faithful to the fundamental and distinctive beliefs and polity of the society.’ ”
In the years since
Watson
was decided, the United States Supreme Court has held that by virtue of the Fourteenth Amendment the First Amendment guarantee of religious liberty precludes the intrusion into ecclesiastical matters by the states, either in their legislative or judicial capacities.
Cantwell v. Connecticut,
310 U.S. 296, 84 L.Ed. 1213, 60 S.Ct. 900, 128 A.L.R. 1352 (1940);
Kedroff v. St. Nicholas Cathedral,
344 U.S. 94, 97 L.Ed. 120, 73 S.Ct. 143 (1952);
Kreshik v. St., Nicholas Cathedral,
363 U.S. 190, 4 L.Ed. 2d 1140, 80 S.Ct. 1037 (1960). More recently, in
Presbyterian Chwrch v. Hull Church,
393 U.S. 440, 21 L.Ed. 2d 658, 89 S.Ct. 601 (1969), the United States Supreme Court dealt again with the question of whether a state civil court, in deciding a church property dispute, may base its decision upon the interpretation and significance that the civil court assigns to .aspects of church doctrine. The Supreme Court held that the First Amendment, as applied to. the states by the Fourteenth Amendment, prohibits decision upon such a basis.
In that case, two local Georgia churches, after voting to withdraw from the general church because of its alleged departure from original fundamental faiths and practices, sued in the Georgia state courts to enjoin the general church from trespassing on their property. Georgia law implied a trust upon local church property for the benefit of the general church, conditioned upon the general church’s adherence to its tenets of faith and practice existing when the local and general churches affiliated with one another. The Georgia Supreme Court, affirming the judgment rendered for plaintiffs in the trial court, stated that the evidence presented an issue for the jury to decide, “whether the totality of actions of the general church amounted to a substantial abandonment of, or departure from, the original tenets of faith and practice by the general church.”
Presbyterian Church v. Eastern Hts. Presbyterian Church,
224 Ga. 61, 159 S.E. 2d 690 (1968). The United States Supreme Court granted certiorari to consider the First Amendment questions raised. In holding that the Georgia courts had violated the First Amendment, the Supreme Court said:
“The departure-from-doctrine element of the implied trust theory which they applied requires the civil judiciary to determine whether actions of the general church constitute such a ‘substantial departure’ from the tenets of
faith and practice existing at the time of the local churches’ affiliation that the trust in favor of the general church must be declared to have terminated. This determination has two parts. The civil court must first decide whether the challenged actions of the general church depart substantially from prior doctrine. In reaching such a decision, the court must of necessity make its own. interpretation of the meaning of church doctrines. If the court should decide that a substantial departure has occurred, it must then go on to determine whether the issue on which the general church has departed holds a place of such importance in the traditional theology as to require that the trust be terminated. A civil court can make this determination only after assessing the relative significance to the religion of the tenets from which departure was found. Thus, the departure-fróm-doctrine element of the Georgia implied trust theory requires the civil court to determine matters at the very .core of a religion — the interpretation of particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role.”
In reversing the judgment of the Georgia Supreme Court and remanding the case for further proceedings, the United States Supreme Court cautioned that the departure-from-doetrine element can play
no
role in any future judicial proceedings.
The principles announced in
Hull
control disposition of the case presently before us. The fact that the controversy in the present case is between factions within a local church while in
Hull
the controversy was between local churches and the general church, is without significance insofar as the constitutional question presented by the record on this appeal is concerned. In neither case may decision be made to turn upon any determination by the civil courts as to departure-from-doctrine by one group or the other. That was precisely the issue submitted to the jury in the present case. The judgment appealed from, having been based upon determination of an issue which may not constitutionally be inquired into by a civil tribunal, must be reversed.
Disputes over church property may still be resolved, and occasionally regrettably must be resolved, in civil courts. As stated in
Hull, “
[c] ivil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church
property. And there are neutral principles of law, developed for use in all property disputes, which can be applied without ‘establishing’ churches to which property is awarded.” Since the decision in
Hull,
however, it is clear that civil courts must decide church property disputes without inquiring into underlying controversies over religious doctrines and without in any way basing decision upon any determination made upon such an inquiry.
The judgment appealed from is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Judge Vaughn concurs.
Judge Britt dissents.