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Decision No. 35

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May 07 1946
In Re: Voting of Retired Bishops

Digest of Case

The provisions of Paragraph 437, Discipline 1944, in connection with retired Bishops of Jurisdictional Conferences, stating that "he may participate in the Council of Bishops, but without vote," is not in conflict with the Constitution, Paragraph 34, as the Constitution by Paragraph 8, Section 5, granted unto the General Conference the power to "define and fix the powers, duties and privileges of the Episcopacy."

Statement of Facts

Paragraph 437 of the Discipline in connection with retired Bishops of Jurisdictional Conferences states: "He may participate in the Council ofBishops, but without vote." At a meeting of the Council of Bishops the question as to the constitutionality of the particular phrase in Paragraph 436 "but without vote" was raised and it was then voted to request the Judicial Council for a ruling in this matter.

Decision

The Constitution in Paragraph 34 states: There shall be an Episcopacy in The Methodist Church of like plan, powers, privileges and duties as now exist in The Methodist Episcopal Church and The Methodist Episcopal Church, South." In Paragraph 36 of the Constitution it states: "There shall be a Council of Bishops composed of all the Bishops of all the Jurisdictional and Central Conferences." Paragraph 8, Article IV of the Constitution states in connection with the powers of the General Conference: The General Conference shall have full legislative power over all matters distinctively connectional, and in the exercise of said powers shall have authority as follows: "5. To define and fix the powers, duties and privileges of the Episcopacy." It has been stated that this act of the General Conference in inserting the words of "but without vote" infringes on the historic powers of the Episcopacy as set forth in Paragraph 34. It is however a fact that a similar phrase "but without vote" was in the Discipline of The Methodist Episcopal Church prior to Unification. It is clear that a retired Bishop is a member of the Council of Bishops. Ordinarily membership in an organization implies the right to vote. But that implication is not necessarily an absolute right. The Constitution has given the General Conference the power. "To define and fix the powers, duties and privileges of the Episcopacy." In the exercise of that power it has provided that a retired Bishop may participate in the Council of Bishops "but without vote." The same Paragraph of the Discipline 437 sets out other restrictions such as not presiding over certain Conferences nor making appointments. The Paragraph setting out the composition of the Council of Bishops and the Paragraph giving the General Conference the power to define and fix the powers, duties and privileges of the Episcopacy are each a part of the Constitution. As against the implication of the right to vote implied by membership in the Council of Bishops, is the clear and definite restriction imposed by the General Conference in Paragraph 437. There is no such conflict of authority in these two portions of the Constitution sufficient to justify our holding the action of the General Conference unconstitutional. Accordingly, it is held constitutional. Concurring Decision M. A. Childers, J. S. French, and W. G. Henry filed a concurring opinion as follows: The opinion of our colleagues above set forth states that there is no such conflict of authority between Paragraph 36 of the Discipline relating to membership in the Council of Bishops and Paragraph 8, Section 5 of the Discipline giving to the General Conference power to prescribe the powers, duties and privileges of the Episcopacy (each a part of the Constitution) sufficient to justify our holding unconstitutional the action of the General Conference taking from retired Bishops the right to vote in the Council of Bishops: We believe there is a conflict between these two provisions of the Constitution and that the provision of the Discipline denying retired Bishops the right to vote in the Council of Bishops is of doubtful constitutionality. However, it is a well-established rule of constitutional construction that if an act of a legislative body is not clearly unconstitutional, the judicial body reviewing same should sustain its constitutionality. On the basis of that universal rule of construction, we concur in the decision set forth above.

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