Robinson, J.,
delivered the opinion of the Court.
The question in this case is an interesting one, and one too of more than ordinary importance. The plaintiff is a clergyman of the Protestant Episcopal Church, and the defendants are vestrymen of Saint Matthew’s parish, in Garrett County. After some correspondence between the plaintiff and the defendants, and the Bishop of the diocese, in regard to filling a vacancy then existing in the rectorship of the parish, the defendants on the 3d December, 1887, passed the following resolution: “That in consideration of the letter received from the Bishop, the Rev. F. S. Hipkins is hereby called to the rectorship of St. Matthew’s parish, Oakland, Md., also that the vestry pledge to the Rev. F. S. Hipkins the sum of seven hundred dollars a year, independent of what he may receive from the mission fund.”
This call, with the terms and conditions on which it was offered, was accepted by the plaintiff, and he at once entered upon the discharge of his duties as rector. Subsequently, on the 13th of September, 1890, the vestry by resolution requested the plaintiff to resign his rector-ship, the said resignation to take effect January 1st, 1891. This however he refused to do, and the vestry by resolution passed 15th of November, 1890, notified him that his rectorship of the parish would terminate 1st of January next ensuing. From this action of the vestry the plaintiff appealed to the Bishop of the diocese, claiming under Title II, Canon 4, of the Protestant Episcopal Church of the United States, that the vestry had no power to terminate his pastoral relations against his consent. This canon provides, that in case of any disagreement between a rector and the vestry in regard to the dissolution of his pastoral relations, either party may give notice of such disagreement to the Bishop, and that the decision of the Bishop in the premises shall be final and binding upon the parties. Section 4, how[18]*18ever, provides, that “this canon, shall not he in force in any diocese which has made, or shall hereafter make, provision by canon upon the subject, nor in any diocese with whose laws or charters it may interfere.” In every diocese, therefore, in which this canon is in force, the termination, of the pastoral relations of the rector must, it is clear, he governed by its provisions. On the other hand, if any diocese has adopted a canon of its own in regard to the subject-matter, or if the general canon law interferes with the State law, then the general canon law has no application or force in such diocese or State. No canon, it is conceded, has been adopted in this diocese upon the subject-matter, and the question, then, is whether there is any State law inconsistent with the provisions of the general canon law, for, if so, the canon is not, it must be conceded, in force in this State. Now the Act of 1198, chapter 24, incorporating the vestries of the Protestant Episcopal Church, and vesting in them the title and possession of all lands and property belonging to the church, provides (section 15) that “the vestry of every parish shall have full power and authority, from time to time, to choose one or more ministers or readers of the Protestant Episcopal Church, (heretofore called the Church of England), to officiate in any church or chapel belonging to the parish, and to perform the other duties of a minister therein, for such time as the said vestry may think proper, and they may agree, and contract with such minister or ministers, reader or readers, for his or their salary, and respecting the use and occupation of the parsonage-house, or any glebe or other lands, or other property, if any, belonging to the parish, and on such terms and conditions as they may think reasonable and proper, and. their choice and contract shall be entered among their proceedings; and upon the expiration of such contract, the said vestry may, in their discretion, renew their choice, or make a new contract; but if they do not [19]*19incline so to do, their former choice and contract shall remain, until they declare their desire to make a new choice or contract.” This Act was in force at the time the plaintiff accepted the call tendered to him by the vestry, and when he entered upon the discharge of his duties as rector. By this Act the vestry was not only authorized to “choose” or appoint a minister, but his tenure and the termination of his pastoral relations were made the subject-matter of contract between the vestry and himself, provisions altogether inconsistent with the canon law, and, being inconsistent, we do not see on what grounds that law can be considered as being in force in this State. The Bishop, however, decided that the canon law was applicable in this particular case, because the vestry failed to comply with the conditions of the civil law; and this being so, he decided also that the vestry had no power, either under the civil or ecclesiastical law^to terminate the pastoral relations of the plaintiff. Now, if it be conceded, for the purposes of this case, that the vestry had failed to comply with the requirements of the civil law, the Act of 1798 still being in force, we do not see, with great deference, how its failure in this respect could make operative a canon not in force in this State. But, be that as it may, whether the resolution of the 3rd of December, in pursuance of which the plaintiff accepted the rectorship of this parish, be a compliance with the Act of 1798, depends upon the terms of the resolution, as construed in the light of the facts and circumstances under which it was passed, and the law as it then existed in reference to the subject-matter. And in considering these it will be necessary to refer briefly to certain facts connected with the Colonial history of the Church which led to the passage of that Act by which the vestries in this State were authorized to employ ministers, and to contract with them in regard to the tenure of their office. By [20]*20the Act of 1702, ch. 1, the Church of England, with its Rites, Ceremonies and Sacraments, was declared to be the established Church of the Province; and by it provision was made for the support of its ministers by an annual levy “of forty pounds of tobacco per poll upon every taxable person” within each respective parish. How far and to what extent, the Church thus established, was subject to the English Ecclesiastical law has given rise to a good deal of discussion, and about which there is some conflict of opinion. It may be fairly assumed, however, that the Colonial Church was subject to and governed by this law so far as it was applicable and was consistent with the chartered rights of Lord Baltimore. The Bishop) of London, as Bishop) Ordinary, not only claimed, but exercised so far as was practicable, ecclesiastical jurisdiction; but the distance and want of communication with the Mother Country and other causes rendered the exercise of this jurisdiction almost powerless. But in the Presentation, Appointment and Induction of clergymen the Colonial Church was not governed, it is clear, by the ecclesiastical law. In England the Presentation was made by the patron, the founder of the parish, having the right of advowson, or by his heir or alienee; and when presented if there was no objection to him, he was instituted by the Bishop, that is, put in the care of' the souls of the parish.
Free access — add to your briefcase to read the full text and ask questions with AI
Robinson, J.,
delivered the opinion of the Court.
The question in this case is an interesting one, and one too of more than ordinary importance. The plaintiff is a clergyman of the Protestant Episcopal Church, and the defendants are vestrymen of Saint Matthew’s parish, in Garrett County. After some correspondence between the plaintiff and the defendants, and the Bishop of the diocese, in regard to filling a vacancy then existing in the rectorship of the parish, the defendants on the 3d December, 1887, passed the following resolution: “That in consideration of the letter received from the Bishop, the Rev. F. S. Hipkins is hereby called to the rectorship of St. Matthew’s parish, Oakland, Md., also that the vestry pledge to the Rev. F. S. Hipkins the sum of seven hundred dollars a year, independent of what he may receive from the mission fund.”
This call, with the terms and conditions on which it was offered, was accepted by the plaintiff, and he at once entered upon the discharge of his duties as rector. Subsequently, on the 13th of September, 1890, the vestry by resolution requested the plaintiff to resign his rector-ship, the said resignation to take effect January 1st, 1891. This however he refused to do, and the vestry by resolution passed 15th of November, 1890, notified him that his rectorship of the parish would terminate 1st of January next ensuing. From this action of the vestry the plaintiff appealed to the Bishop of the diocese, claiming under Title II, Canon 4, of the Protestant Episcopal Church of the United States, that the vestry had no power to terminate his pastoral relations against his consent. This canon provides, that in case of any disagreement between a rector and the vestry in regard to the dissolution of his pastoral relations, either party may give notice of such disagreement to the Bishop, and that the decision of the Bishop in the premises shall be final and binding upon the parties. Section 4, how[18]*18ever, provides, that “this canon, shall not he in force in any diocese which has made, or shall hereafter make, provision by canon upon the subject, nor in any diocese with whose laws or charters it may interfere.” In every diocese, therefore, in which this canon is in force, the termination, of the pastoral relations of the rector must, it is clear, he governed by its provisions. On the other hand, if any diocese has adopted a canon of its own in regard to the subject-matter, or if the general canon law interferes with the State law, then the general canon law has no application or force in such diocese or State. No canon, it is conceded, has been adopted in this diocese upon the subject-matter, and the question, then, is whether there is any State law inconsistent with the provisions of the general canon law, for, if so, the canon is not, it must be conceded, in force in this State. Now the Act of 1198, chapter 24, incorporating the vestries of the Protestant Episcopal Church, and vesting in them the title and possession of all lands and property belonging to the church, provides (section 15) that “the vestry of every parish shall have full power and authority, from time to time, to choose one or more ministers or readers of the Protestant Episcopal Church, (heretofore called the Church of England), to officiate in any church or chapel belonging to the parish, and to perform the other duties of a minister therein, for such time as the said vestry may think proper, and they may agree, and contract with such minister or ministers, reader or readers, for his or their salary, and respecting the use and occupation of the parsonage-house, or any glebe or other lands, or other property, if any, belonging to the parish, and on such terms and conditions as they may think reasonable and proper, and. their choice and contract shall be entered among their proceedings; and upon the expiration of such contract, the said vestry may, in their discretion, renew their choice, or make a new contract; but if they do not [19]*19incline so to do, their former choice and contract shall remain, until they declare their desire to make a new choice or contract.” This Act was in force at the time the plaintiff accepted the call tendered to him by the vestry, and when he entered upon the discharge of his duties as rector. By this Act the vestry was not only authorized to “choose” or appoint a minister, but his tenure and the termination of his pastoral relations were made the subject-matter of contract between the vestry and himself, provisions altogether inconsistent with the canon law, and, being inconsistent, we do not see on what grounds that law can be considered as being in force in this State. The Bishop, however, decided that the canon law was applicable in this particular case, because the vestry failed to comply with the conditions of the civil law; and this being so, he decided also that the vestry had no power, either under the civil or ecclesiastical law^to terminate the pastoral relations of the plaintiff. Now, if it be conceded, for the purposes of this case, that the vestry had failed to comply with the requirements of the civil law, the Act of 1798 still being in force, we do not see, with great deference, how its failure in this respect could make operative a canon not in force in this State. But, be that as it may, whether the resolution of the 3rd of December, in pursuance of which the plaintiff accepted the rectorship of this parish, be a compliance with the Act of 1798, depends upon the terms of the resolution, as construed in the light of the facts and circumstances under which it was passed, and the law as it then existed in reference to the subject-matter. And in considering these it will be necessary to refer briefly to certain facts connected with the Colonial history of the Church which led to the passage of that Act by which the vestries in this State were authorized to employ ministers, and to contract with them in regard to the tenure of their office. By [20]*20the Act of 1702, ch. 1, the Church of England, with its Rites, Ceremonies and Sacraments, was declared to be the established Church of the Province; and by it provision was made for the support of its ministers by an annual levy “of forty pounds of tobacco per poll upon every taxable person” within each respective parish. How far and to what extent, the Church thus established, was subject to the English Ecclesiastical law has given rise to a good deal of discussion, and about which there is some conflict of opinion. It may be fairly assumed, however, that the Colonial Church was subject to and governed by this law so far as it was applicable and was consistent with the chartered rights of Lord Baltimore. The Bishop) of London, as Bishop) Ordinary, not only claimed, but exercised so far as was practicable, ecclesiastical jurisdiction; but the distance and want of communication with the Mother Country and other causes rendered the exercise of this jurisdiction almost powerless. But in the Presentation, Appointment and Induction of clergymen the Colonial Church was not governed, it is clear, by the ecclesiastical law. In England the Presentation was made by the patron, the founder of the parish, having the right of advowson, or by his heir or alienee; and when presented if there was no objection to him, he was instituted by the Bishop, that is, put in the care of' the souls of the parish. Then followed Induction by the mandate of the Bishop, being a ceremonial act performed by the inductor, the Archdeacon; such as the delivery to the incumbent of the key of the church door, and then the tolling of the bell, or other like ceremony, being a symbolical delivery to him of the possession of the church, and all the property belonging to the parish, including tithes, &c. And when once inducted, he thereby acquired a freehold interest in the property of the parish of which he could not be deprived except by ecclesiastical sentence. Here, however, the [21]*21appointment was made by Lord Baltimore as the owner of all the livings and entitled therefore to the right of advowson, and when so appointed the minister was licensed by the Bishop of London, and he was then inducted by the Governor. And, though there does not appear to have been any ceremony accompanying the act of Induction, the same legal effect followed it as in England. At least no clergyman once inducted, was ever deprived of his benefice during the Colonial period, for although subject to the jurisdiction of the Bishop of London, yet such were the difficulties attending its exercise that all efforts on his part, or by his commissary to bring offending clergymen to trial and punishment proved unavailing. And, referring to this subject, the Rev. Dr. Hawks says: “Thus Lord Baltimore selected a clergyman in England and appointed him to a living; the Bishop of London gave him a license; the Governor inducted him; if he did wrong, the commissary tried him, if there happened to be a commissary; and when convicted, no power punished him; for after induction even his Lordship, the Proprietor, could not remove him; and the Bishop of London, his Diocesan, could neither give nor take away the meanest living.” Hawks’ Eco. Con., 194. This condition of things produced its legitimate fruits, and the persistent but unsuccessful efforts on the part of the vestry to dissolve the pastoral relation, when such dissolution seemed so desirable, forms a painful chapter in the Colonial history of the Church, the details of which we have no inclination to consider. And this continued down to the American Revolution, when Maryland, having formed a Constitution for its own government, put an end forever to the Establishment. But the troubles of the Church did uot cease with its disestablishment. Many of its clergy remained loyal to the Mother Country, and before the Revolution was over, a majority of the parishes were left without a [22]*22rector. The proprietary rights of Lord Baltimore being annulled by the Revolution, he no longer had the power of appointment; and the Bishop of London, if his jurisdiction still continued, no longer attempted to exercise it, and if he had, such was the temper of the times, it is doubtful whether his authority would have been respected. There was no Bishop in the State, and strange to say, there never was a Bishop of the Protestant Episcopal Church in this country until after the Revolution, Bishop Seabury of Connecticut, consecrated in 1784, being the first American Bishop. So practically speaking there was no law, civil or ecclesiastical, for the government of the Church, and it was therefore absolutely necessary to provide by law some mode for the appointment of ministers to fill, not only the vacancies then existing, but such as might occur in the future. And hence the Act of 1779, ch. 9, providing for the election of a vestry in every parish, in whom, when elected, was vested the title to all churches, chapels and property belonging to the parish; and this Act further provided “that the said vestrymen or a major part of them shall have full power and authority to employ a minister of the Church of England, to officiate in their respective churches or chapels for such time as may be agreed upon.” We have thus briefly traced the causes which led to the passage of this Act. The laity had felt the mischiefs resulting from the appointment of ministers by patrons and strangers, and they had experienced, too, the difficulties in dissolving the pastoral relation when once established, however, much the best interests of the parish might require such a dissolution. And to remedy all this the power to select or “'choose” a minister — for such is the language of the Act — was conferred upon the vestry, and his tenure was made a matter of contract between himself and the vestry. This Act remained in force until the Act of 1798, ch. 24, in which [23]*23was embodied the same provision in regard to the selection of a minister and his tenure when so selected, the word “choose” being substituted for “employ” used in the Act of 1779; and with this further significant and important modification, that if, upon the termination of his tenure as fixed by the contract, the vestry failed “to make a new choice or contract,” the minister was still to continue in his rectorship, until the vestry deemed it advisable to “make a new choice or contract.”
This Act was in full force when the defendants tendered the rectorship of this parish to the plaintiff and when it was accepted by him, and Canon 4 being inconsistent with its provisions, it necessarily follows that the dissolution of the plaintiff’s pastoral relations must be governed by and determined by the Act. The contention, however, and it is the sole contention, of the plaintiff, is that the general canon law must be considered operative, in this particular case at least, because the defendants by the resolution of December 3rd, by which the plaintiff was called to the rectorship of the parish, failed to comply with the conditions of the Act of 1798. Without conceding for a moment that the failure of the defendants in this respect, could make operative a canon law otherwise conceded not to be in force in this State, let us see whether it can be fairly said that they have failed to comply with the conditions of the law. Here was a vacancy in the parish, and. after some correspondence with the Bishop the vestry offered to delegate to him its authority to call a minister. But this offer he declined, because he had some doubts whether he could lawfully exercise delegated power, and, further, because he did not believe the plaintiff would accept the appointment unless he thereby had the full authority of a rector. Then, by the resolution of 3rd December, the defendants tendered to the plaintiff the rectorship of the parish, agreeing at the same time to pay him seven [24]*24hundred dollars a year. This call, and the terms upon which it was offered, were accepted. Here, then, is a case in which the plaintiff was chosen rector by the vestry, and in consideration of his services as such, an agreement on its part to pay to him a stipulated sum of money a year, and this call and agreement were both recorded among its proceedings. What more does the Act of 1798 require? But it is said the resolution of the 3rd of December, fails to comply with the conditions of the Act, because it does not fix a definite* time for which the plaintiff was chosen rector; that it does not fix a day for the termination of his pastoral relation. This is a question of law, to be determined by the terms of the contract itself, and the nature and character of the services to be rendered under it. The plaintiff knew, or in law is presumed to have known, that the vestry in tendering to him the rectorship of the parish was acting in pursuance of the authority conferred on it by the Act of 1798. This we say because there was no other law, civil or canonical, in force in this State conferring upon a vestry the power to call a minister, and to contract with him in regard to his tenure as minister. And for the purposes of this case it is altogether immaterial whether the resolution of 3rd December be construed as a contract for a definite, or an indefinite time. It is immaterial because, if it be construed as a contract for a definite time — for a year, — then the plaintiff's rectorship terminated at the end of that year. On the other hand, if it be construed as a contract for an indefinite time, then it is a contract at will, terminable any time at the will of either party. So in any aspect in which this resolution under which the plaintiff assumed his rectorship may be considered, it is, it seems to us, not only a substantial but a literal compliance with the terms and conditions of the Act. If it be construed as a yearly contract, a contract for a year, then the defen[25]*25dants had the right, beyond question, to terminate the plaintiff’s pastoral relations on the 1st of January, 1891, or, if it be construed as a contract at will, they had the right to terminate it at any time they might deem it proper.
Now, as to the doubt, suggested in regard to the incorporation of the vestry of this parish it is sufficient to say the Act, of 1798, declared, in the first place, every vestry elected in pursuance of the provisions of that Act to be a corporate body; and then it further provided that the Convention of the Protestant Episcopal Church in this Diocese may from time to time constitute new parishes, by dividing or uniting the several parishes then existing, and the vestries of such parishes elected in pursuance of the Act are thereby declared to be incorporated. So all that is necessary to incorporate a vestry under this Act, is that the Convention of the Diocese shall in the first place constitute the parish, and then that the parishioners shall elect a vestry, and when these conditions are complied with the vestry ipso facto becomes a corporate body. And such has been the practice and usage of the Protestant Episcopal Church in the formation of parishes, and the incorporation of vestries ever since the Act of 1798, was passed. And the general corporation law, Art. 23, sec. 217, provides in express terms, that “nothing in this Article shall prevent the Protestant Episcopal Church from incorporating the vestries in the several parishes according to the usages of the said church.”
The Act of 1798 is not to be found, it is true, in the Code. But the Code is a codification of the Public General Laws, and the Public Local Laws. This Act, is neither a Public General Law nor is it a Public Local Law. It is a mere private Act incorporating the vestries of a particular Religious denomination, private corporations, and being a private law it was not and could not [26]*26properly be codified as part of the Public General Laws. It follows from what we have said that the order granting an injunction in this case must be reversed, and that the bill filed by the plaintiff must be dismissed.
(Decided 8th April, 1892.)
Order reversed, and bill dismissed.
On the 23rd of April, 1892, a motion was made by the appellee for the rehearing of the foregoing case, but the motion was overruled.