Decision Number 62


April 28, 1949

The Appeal of the Council of Bishops to the Judicial Council Concerning the Constitutionality of Paragraph 901, Article I of the 1948 Discipline Which Reads, "Provided However That as a Result of the Election Each Jurisdiction Shall Be Represented on the Council"


The act of the 1948 General Conference adding to Paragraph 901, Article 1 of the 1948 Discipline, the following clause: "Provided however that as a result of the election each Jurisdiction shall be represented on the Council" is constitutional. The decision is based on the interpretation that same refers to the manner of election and does not constitute any member of the Judicial Council as the representative of any particular group, section, Area or Jurisdiction. The Judicial Council is a judicial tribunal, and not a representative body as such. The members are to be free from any sectional interests and to serve the entire Church. Any other interpretation of the act in question would render it wholly unconstitutional.


Under the authority of Paragraph 904 of the 1948 Discipline which reads "The Judicial Council shall determine the constitutionality of any act of the General Conference upon an appeal of a majority of the Council of Bishops, etc.," the conditions having been met, the appeal is properly before the Judicial Council.

Paragraph 42, Article 1, states: "There shall be a Judicial Council. The General Conference shall determine the number and qualifications of its members, their term of office, and the method of election, and the filling of vacancies."

The Judicial Council is not authorized to pass upon the wisdom or the unwisdom of the act included in Paragraph 901, Article 1, which was adopted by the General Conference in 1948. The Constitution does give authority (Paragraph 42, Article 1) to the General Conference to enact such legislation.

In this connection it is the decision of the Judicial Council that such a Council is in no way a representative body but is clearly a judicial tribunal under the plain provisions of the Constitution. The members must be left free from sectional or Jurisdictional interests. The Judicial Council concludes that the clause, "each Jurisdiction shall be represented on the Council," relates to the manner of selection of the members and does not constitute the members of the Judicial Council representatives of any group, section, Area, or Jurisdiction. Any other interpretation of this term now under consideration would render it wholly unconstitutional. It is, therefore, the decision of the Judicial Council that the action of the General Conference now before us for review was and is constitutional.

NOTE: J. Ernest Wilkins voluntarily refrained from participating in the discussion in connection with this matter and from voting on the decision.

Concur In Part and Dissent In Part

When the present Methodist Church came into being in 1.939 a form of Church organization was set up quite distinct from that existing previously in the constituent Methodist bodies, inasmuch as it was based on a written Constitution. This written Constitution became a sacred compact between the then contracting parties, and must be strictly adhered to now by the United Church.

This Constitution set up three branches of Government, the Executive, the Legislative, and the Judicial, and to each branch of Government were granted certain powers with certain limitations. In the prior Church polity we were familiar with the Executive and the Legislative branches, but the Judicial was distinctly new, except for a short period in the M. E. Church, South from 1934 to 1939. Under the new form of Constitutional Church Government, this Judicial branch became highly essential, as it was granted the determination of all Constitutional questions, particularly whether any enactment of the Legislative branch contravenes the provisions of the Constitution.

The construction of Constitution is the peculiar province of the Courts, and to the Courts belongs the final decision. A Constitution should be construed as fundamental law and should be interpreted in such a manner as to carry out the broad general principles of the Government thereby set up, and must be so construed as to ascertain and give effect to the intent and purpose of the framers. The basic principle of construction is that, in ascertaining the meaning of a Constitution, it must be construed as a whole.

To arrive at any determination of this most important case, there should first be a very careful analysis of the provisions of the Constitution relating to the Judicial Council. It must be borne in mind that all the powers and the jurisdiction of the Judicial Council and all other matters relating to it are derived only from this Constitution, and that the General Conference has no right or power to enact any legislation relating thereto that is not in strict accord with the Constitution.

All these Constitutional provisions are contained in Division Four, Articles I, 11 and III, and a part of Article VII of Division Three. Therefore, any questions as to election of members of the Council or their powers, duties and procedure must be answered by a legal interpretation of these provisions, and these only.

The Constitutional provisions may be studied under three headings: (a) The composition of the Council, including method of election; (b) Powers and Duties; (c) Procedure. (A) Composition of Council. The power to determine the number "qualifications" of members, the terms of office and "Method of Election" is granted to the General Conference by Paragraph 42, Discipline 1948, being Article I of Division Four, of the Constitution. In enacting legislation pursuant to this provision the General Conference must act within the limits prescribed for any legislative body created by a written Constitution, so that any enactment which seeks to set down "qualifications of Members," or "Method of Election," must not do violence to any other provision of the Constitution, nor the Constitution as a whole.

(B) Powers of Judicial Council are specifically set forth in, Article II, Division Four, of the Constitution (Discipline 1948, Paragraph 43), and the latter part of Paragraph 46. So far as these grants of power are specific, they cannot be altered by any action of the General Conference. Accordingly no legislation of the General Conference can add to nor take away any power granted by the Constitution, but simply implements such grants of powers. In addition to the specific powers so granted, the General Conference may confer on the Judicial Council "Other powers and duties" (Paragraph 43 [5]), which powers and duties of course must not conflict with the other provisions of the Constitution.

(C) Procedure. The Constitution further provides that the Judicial Council itself shall provide its own methods of organization and procedure. This grants to the Council the complete right to determine when and where it shall meet, as well as all other procedural matters such as adopting Rules of Court and the like.

It is, therefore, of great significance the at our Church Constitution recognized a distinct separation of functions and powers of what in Civil Governments are generally known as the Executive, the Legislative, and the Judiciary. So far as our Church may be said to have any Executive Department this is represented by the Episcopacy, and the Legislative is represented by the Conferences, particularly the General Conference with the powers and duties therein prescribed. But by a new departure in Church law a distinct Department was created, "The Judiciary." The framers of this Constitution must be construed to have intended exactly what this purports to mean: that is to say, a separateJudicial branch of the Church, similar to the Judicial branch of Civil Governments, to be created and to function only in strict accord with the language of the Constitution.

By this questioned legislation the election of members of the Judicial Council is limited by the following clause, "provided, however, that as a result of the election each Jurisdiction shall be represented on the Council."

This limitation on qualification is basically unsound, and although it may not conflict with any specific clause of the Constitution, yet it is in conflict with the spirit of the provisions of the Constitution setting up a Judicial Council. The basic fallacy of course is assuming that the Judicial Council is a "representative" body as evidenced by the use of the word "represented" on the Council.

The Legislative branch and the Judicial branch of any Government are never constituted on the same basis. In any Government of a democratic nature, the Legislative branch should be so constituted as to be representative of the different elements composing the electorate. However, a Court of Law is not set up to legislate or to take any action that reflects the wishes (or the whims) of the Electorate or any part thereof. A Court, particularly a Supreme Court, has no jurisdiction to frame laws, but only to interpret them. It does not recognize any part of the constituency as being entitled to any favor or any special consideration, except only as provided by the Constitution and legislation enacted in conformity therewith.

If this erroneous representative principle should be applied to the Supreme Court of the United States, and the highest courts of the States, we would see attempts being made for representation from every minority and pressure group, so that in the end the great majority might have only minority representation.

If the framers of our Constitution had intended that a Jurisdiction was to be "represented" on the Judicial Council, they would have provided for the election of, such "representative" by the Jurisdictional Conference, as certainly one Jurisdiction has no right to elect the "representative" of any other Jurisdiction.

It is to be noted that the majority opinion in this case, at least by inference, indicates that this legislation is unwise and to be deprecated. The proponents seek to justify this on the ground that the General Conference was granted the right to determine the "qualifications" of the members of the Judicial Council, and to determine the method of election.

As to the test of "qualifications" it is submitted that this has no basis in law. By Bouvier's Law Dictionary, page 2776, "Qualification" is defined as relating to the fitness or capacity of a party for a particular purpose or profession. In 51 Corpus Juris III, "Qualification" as applied to persons means eligibility or fitness, or as a requisite to election to office and refers to capacity, eligibility or fitness for place, office or employment such as education, age, and citizenship.

Thus it appears that as a "qualification" for election to the Judicial Council, the General Conference may prescribe age limits, educational attainments, or other personal matters including status as a minister or layman. However, even if by some stretch of definition this be extended to cover a "qualification" based upon membership in any Conference, area or Jurisdiction, yet the fatal fact in this case is that it was not so enacted, but was enacted so that a Jurisdiction be "represented" on the Council. Therefore, the very language of this legislation negatives this argument.

Furthermore, as to the "Method of Election," it is to be noted that members of the Judicial Council are elected as prescribed by Paragraph 901, without the new proviso. When the election ends and certain persons are elected, the election has been finished and the status of those elected is fixed. But the new proviso declares that "as a result of the election each Jurisdiction shall be represented on the Council." This proviso then is not intended to become effective until the election is completed, and certain members having received the highest votes are declared elected. But how is this new proviso to be enforced if it refers to residence of members? Who are to be declared to be illegally on the Council-one of the newly elected minsters, or a newly elected layman, or one of the older members whose term will expire before those of the new members? Or is the whole election void? It stands to reason that an elected member cannot be declared ineligible because of his residence, nor can he be, removed because other members are not scattered as to residence. In other words, this new proviso is meaningless, and cannot be enforced. Accordingly on this ground also it is unconstitutional and void.

It is to be regretted that the Constitutionality of this legislation was not raised at the 1948 General Conference session, before any election thereunder, so that there could have been a more complete and timely discussion and understanding of the whole matter. But to quote from an opinion by Mr. Justice Frankfurter in a recent case in the U. S. Supreme Court, we may say that "wisdom too often never comes, and so one ought not to reject it merely because it comes late." Therefore it seems we would be compounding error if we did not now sound a warning to future General Conferences indicating the limitations within which they may attempt to usurp powers not granted by the Constitution.

If this proposition has such merit that it should be made a part of our basic law, the way is open for an amendment to the Constitution by due process, but such an important matter should never be enacted merely by a majority vote of a General Conference.

Legislative bodies, including General Conferences, are notoriously subject to influence by sympathies and passing emotions which leads to unwise action. It is for that very purpose that Constitutional limitations are laid down. Accordingly it seems that the Judicial Council is failing to do its duty to the Church by not maintaining a firm position in such cases.

Therefore after careful study of our Constitution as a whole, with its historic background, and interpreting it from all four corners, the only logical conclusion is that this questioned legislation be declared unconstitutional.


M. E. Lawson concurs in the foregoing dissenting decision.

April 29, 1949

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