Ballantyne v Presbytery of Wigtown

JurisdictionScotland
CourtCourt of Session (Inner House - Second Division)
Judgment Date27 Mar 1936
Docket NumberNo. 54.

2ND DIVISION.

Lord Pitman.

No. 54.
Ballantyne
and
Presbytery of Wigtown

ChurchMinisterElectionChurch CourtsJurisdictionStatutory right of congregation to elect minister ad vitam aut culpamPresbytery proposing union of congregationsCongregation objecting to unionSist of proceedings for electionAppointment of short-term minister by presbyteryUltra viresChurch Patronage (Scotland) Act, 1874 (37 and 38 Vict. cap. 82), sec. 3Church of Scotland Act, 1921 (11 and 12 Geo. V, cap. 29), secs. 1 and 3, and Sched., Art. 4.

The Church Patronage (Scotland) Act, 1874, by sec. 3, vests in congregations of the Church of Scotland the right of electing ministers to vacant churches and parishes. This right was held in a series of decisions to be a civil right enforceable in the civil Courts.

The Church of Scotland Act, 1921, sets forth, in the Schedule thereto, Articles declaratory of the constitution of the Church of Scotland in matters spiritual, prepared with a view to facilitating union with other Churches, and enacts, by sec. 1, that the Church's liberty, rights and powers with regard to such matters, as set forth in the Articles, shall not be limited by any statute or law then in force; that, in all questions of construction, the Articles shall prevail; and that all such statutes and laws, so far as inconsistent therewith, are thereby repealed. Sec. 3 preserves the jurisdiction of the civil Courts in matters of a civil nature. The fourth Declaratory Article provides that the Church shall have exclusive jurisdiction, subject to no interference by the civil authority, with regard, inter alia, to all matters of "government" in the Church, including the right "to determine all questions concerning office and membership in the Church, the mode of election of its office-bearers, and to define the boundaries of the spheres of labour of its ministers and other office-bearers."

A union between the Church and the United Free Church of Scotland was effected in 1929. The minister of the Parish of Kirkmabreck having died in 1932, the Presbytery of Wigtown, with the concurrence of the Church authorities, proposed a union of the Kirkmabreck congregation with the congregation of a former United Free Church in the parish, now associated with the Church of Scotland, and, in accordance with Regulations made by the Church of Scotland after the Union of 1929, sisted proceedings for the election of a minister by the Kirkmabreck congregation. The proposed union of congregations having been rejected by the Kirkmabreck congregation, as also a proposal by the Church authorities for the election of a short-term minister, the Presbytery, in 1934, appointed a minister without charge for a period of three years.

In an action by members of the Kirkmabreck congregation in 1935 against,inter alia, the Presbytery of Wigtown, the pursuers maintained that the defenders' actings were ultra vires, in respect that the congregation had, on the occurrence of a vacancy, a vested indefeasible right to elect a minister to hold office ad vitam aut culpam, in virtue of sec. 3 of the Act of 1874a right, as established by decision, enforceable in the civil Courts to the exclusion of the jurisdiction of the Church Courts.

Held (diss. Lord Mackay) (1) that the effect of the Act of 1921 was to make all matters included in the Declaratory Articles "matters spiritual" within the exclusive jurisdiction of the Church; (2) that the action of the defenders (a) in sisting proceedings for the election of a minister in view of their proposal for a union of congregations, and (b) in appointing a short-term minister, fell within the powers of "government" conferred upon the Church by the fourth Declaratory Article; (3) that the congregation's right to elect a minister in the vacancy was, since the Act of 1921, no longer a civil right but a spiritual matter, with regard to which the Church had supreme control to the exclusion of the jurisdiction of the civil Courts; and action dismissed.

On 5th February 1935 Christopher Ballantyne and fourteen other members of the congregation and parish of Kirkmabreck and communicants on the roll thereof, for themselves and for all parishioners who might desire to associate themselves with them, brought an action in the Court of Session against (1) the Presbytery of Wigtown and the Moderator and Clerk thereof as representing the Presbytery; (2) the Synod of Ayr and the Moderator and Joint Clerks thereof as representing the Synod; (3) the General Assembly of the Church of Scotland and the Moderator and Joint Clerks thereof as representing the Assembly; and (4) the Interim Moderator of the Kirk Session of Kirkmabreck. The Reverend John Houston Yule, minister of Craigiebank Extension Church, Dundee, who was formerly minister of Minnigaff and was a former Interim Moderator of the Kirk Session of Kirkmabreck, was also called for any interest he might have in the premises.

The conclusions of the summons were, inter alia, as follows, viz.:"1. For declarator, (1) that, the Church and Parish of Kirkmabreck within the bounds of the Presbytery of Wigtown having in 1932 become vacant within the meaning of the Patronage Act, 1874,1 the congregation of the said church and parish is

vested with a right and a duty forthwith to proceed with the election of a minister to serve the said church and parish; and (2) that the Presbytery of Wigtown, having appointed a moderator to preside at the meetings of the Kirk Session and congregation for said election, had and has no power to sist or delay proceedings in the said election, and that any order or action of said Presbytery by which the said congregation is interpelled or hindered in proceeding in said election is ultra vires and contrary to law; (3) that the Regulations of the General Assembly of the Church of Scotland, so far as they purport to empower the Presbytery of Wigtown to sist or delay proceedings in the said election, are inapplicable to the election of a minister of the Church and Parish of Kirkmabreck, and that any pretended order or sist pronounced by the said Presbytery thereunder is of no force and effect in law. 2. If necessary, for production and reduction of the minutes of the said Presbytery of 11th November 1932, 28th February 1933, and 16th July 1934, or of whatever other date or dates the same may be, so far as the said minutes or one or other of them purport to sist or have the effect of sisting or delaying proceedings in the said election or in any way to hinder the due conduct thereof; and also for production and reduction of the minute of the said Presbytery, dated on or about 26th September 1933, whereby the said Presbytery resolved to permit the said congregation to elect a minister to serve the said parish for three years only. 3. If necessary, for production and reduction of the minute of the Synod of Ayr in April 1934 whereby the said Synod refused an appeal from the decision of the Presbytery foresaid of 26th September 1933 and affirmed the said decision. 4. For an order authorising and ordaining the said Presbytery, the moderator appointed by the said Presbytery and now acting in the said vacancy, the Kirk Session and congregation of the said parish in their respective capacities and with the powers and duties entrusted to them, to proceed in the election of a minister of the Church and Parish of Kirkmabreck, as accords of law; and to do all things necessary and proper to ensure the due conduct of the said election."

The material facts of the case, as disclosed by the averments of parties, were, inter alia, as follows:(Cond. 1) "The pursuers are fifteen communicants upon the roll of the Church and Parish of Kirkmabreck. They are also all upon the electoral roll of the congregation of the said church. They are also all parishioners The first five pursuers are five of the seven elders of the said church and parish. They sue the present action on behalf of themselves, of the other members of the said congregation, and of all parishioners who desire to associate themselves with them in the said action. A large majority of the parishioners of the parish and of the congregation thereof desire the immediate election of a minister thereto according to law and practice. Reference is made to the minutes of meeting of the Presbytery of Wigtown dated 7th November 1933. [The designations of the first three defenders were then set forth.] The fourth defender is the minister of Wigtown. As after mentioned, the Reverend Mr Yule, who is called for his interest in the premises, acted for a time as Interim Moderator in the vacancy at Kirkmabreck, but in view of his having accepted a call to Craigiebank Extension Church, Dundee, and his approaching translation to that charge, the Presbytery of Wigtown at a meeting held in December 1934 relieved him of his duties as Interim Moderator in said vacancy as from 7th January 1935 and appointed the fourth defender to take his place as Interim Moderator of the Kirk Session of Kirkmabreck as from 7th January 1935 during the vacancy of the said church and parish." (Ans. 1) "The averments relative to the pursuers and defenders are admitted. The minutes of meeting of the Presbytery of Wigtown, dated 7th November 1933, are referred to for their terms. Quoad ultra no admission is made." (Cond. 2) "The parish of Kirkmabreck lies in the Stewartry of Kirkcudbright, within the bounds of the Presbytery of Wigtown and of the Synod of Ayr. It has a population of about 2000. The small town of Creetown is in the parish. It is one of the ancient territorial parishes of Scotland quoad sacra et civilia. The parishioners are entitled according to law to have, and to be served by, a minister of the parish ad vitam aut culpam. There is a parish church which is ample for the needs of all parishioners, and a manse with a very valuable glebe. The stipend as standardised is about 330 a year; but the minister has hitherto received the interest on certain accumulated funds...

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2 cases
  • Percy v Church of Scotland Board of National Mission
    • United Kingdom
    • Court of Session (Inner House - First Division)
    • 20 March 2001
    ...of the parties are sufficiently set forth in the opinion of the Lord President. Cases referred to: Ballantyne v Presbytery of WigtownSC 1936 SC 625 Church of England Curates (In re Employment of) [1912] 2 Ch 563 Davies v Presbyterian Church of WalesUNK [1986] 1 All ER 705 Diocese of Southwa......
  • Logan v Presbytery of Dumbarton
    • United Kingdom
    • Court of Session (Outer House)
    • 26 April 1995
    ...in relation to the matters excluded by article IV. The court's jurisdiction was excluded: see Ballantyne v Presbytery of WigtownSC (1936 SC 625); Buchan v BrodieUNK (unreported, August 15, 1984); Lockhart v Presbytery of Deer ((1851) 13D 1296); Wight v Presbytery of Dunkeld ((1870) 8M 921).......

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