Judicial Council Decisions Search
Decision No. 234
December 10 1965
In Re: Appeal of the Southeastern Jurisdictional Conference for a Ruling Concerning a Plan of Action Under Constitutional Amendment IX Providing for Transfer of Annual Conferences of the Central Jurisdiction within the Bounds of the Southeastern Jurisdiction
afforded opportunity for oral argument herein and contended that the proposed transfer and merger cannot become effective without the prior approval of the South Central Jurisdictional Conference under its boundary determination authority.
This case raises conflicting interpretations and questions of application of Section 4 of Amendment IX which is found in Paragraph 47 of the Discipline. We hold that the Judicial Council has jurisdiction under Paragraph 914 of the Discipline.
The petition of the Central West Annual Conference states the question as to whether that Annual Conference "may legally merge . . . under the authority of Section 4 of Amendment IX . . ." However, since Section 4 deals only with removal of constitutional limitations, it seems clear that it was the intention of the petition to present the question of authority to transfer and conjointly merge under Section 2 of Amendment IX as that section is affected by Section 4 of the Amendment. To understand the meaning and effect of Section 4, it is also necessary to consider Paragraphs 15(4) and 29 of the Constitution and our Decision No. 85. Paragraph 15 of the Discipline reads in part as follows:
"Article V - The Jurisdictional Conferences shall have the following powers and duties and such others as may be conferred by the General Conference:
" (4) To determine the boundaries of their Annual Conferences. . . ."
Paragraph 29 of the Discipline reads as follows:
"Article IV - Changes in the number, names and boundaries of the Annual Conferences may be effected by the Jurisdictional Conferences in the United States and by the Central Conferences outside the United States of America, according to the provisions under the respective powers of the Jurisdictional and General Conferences."
Decision No. 85, decided prior to enactment of Amendment IX, held that transfer of a local church out of the Central Jurisdiction into an Annual Conference of a regional jurisdiction would effect a change of boundaries, viewed from a racial standpoint, therefore necessitating approval of both Jurisdictional Conferences involved. We stated that if a less complicated procedure were desired it would necessitate adoption of a constitutional amendment. Amendment IX was adopted in 1958 simplifying the procedure for transferring local churches and Annual Conferences out of the Central Jurisdiction.
Briefly stated, the procedure under Amendment IX is as follows: Section 1prescribes the procedures for transferring a local church from an Annual Conference of one jurisdiction to another Annual Conference in which it is geographically situated. Section 2 prescribes procedures for transferring an Annual Conference from one jurisdiction to another. Aside from action required of the Quarterly and Church Conferences of an involved local church, transfers under both Sections require the votes of a two-thirds majority of both Annual Conferences involved in a Section 1 transfer and of all Annual Conferences of both jurisdictions involved in a Section 2 transfer. Amendment IX, while explicit in detailing the required voting procedure, makes no expressed requirement for action by Jurisdictional Conferences, as was required by superseded Paragraph 532 of the Discipline which related to the transfer of local churches.
Section 4 of the Amendment provides as follows:
"4. Transfers under the provisions of this article shall not be governed or restricted by other provisions of this Constitution relating to change of boundaries of conferences."
It is generally agreed that a transfer of the Central West Annual Conference intact into the South Central Jurisdiction would not require ratifying action by either Jurisdictional Conference. This follows from our Decision No. 169, where we interpreted Section 4 of Amendment IX as overriding all other provisions of the Constitution granting boundary determination authority, thus eliminating any requirement of action by a Jurisdictional Conference. But it has been contended by counsel for the Southeastern Jurisdictional Conference that since the transfer in question is integrally related to and conditioned upon effective merger of Central West Annual Conference into Missouri West Annual Conference and Missouri East Annual Conference the transaction is not a "transfer" under Section 2 of the Amendment and therefore Section 4 is not applicable.
This interpretation overlooks the possibility of a transfer in which merger is a contingent and integral part of the contract of transfer. The aforementioned interpretation we consider to be at variance with the language of Amendment IX, its legislative history and the broad objectives sought through its enactment. Therefore, we test the question in terms of these three considerations recognizing that the General Conference debate preceding the adoption of Amendment IX throws no clear light on the issue.
A restrictive interpretation of Section 2 which would invalidate the merger in the case before us would run counter to the fundamental objective of Amendment IX and frustrate rather than encourage the Annual Conferences in moving toward a racially inclusive church. The history of Amendment IX shows that it was adopted to overcome the existing complicated and dilatory procedures governing transfers out of the Central Jurisdiction including delays necessarily involved in the intervals between sessions of a Jurisdictional Conference. In adopting Amendment IX, the church apparently sought to eliminate any requirement of participation by the Jurisdictional Conferences as such in cases governed by Section 1 and Section 2 and to provide a simplified procedure whereby the Annual Conferences in the respective jurisdictions would be the key units in moving toward racial inclusiveness in the church. This is in recognition of the fact that the Annual Conferences are "the fundamental bodies in the church." (Paragraph 4.4 of the Discipline)
Admittedly, a transfer of a Central Jurisdiction Annual Conference to a regional jurisdiction can be a first and separable step under Amendment IX if so desired by those involved, leaving ultimate merger of a transferred Annual Conference with and into a regional Annual Conference to await later action and mutual agreement. However, this is not the case before us.
The choice between these alternative methods is part of the voluntarism provided by Amendment IX.
To adopt a contrary interpretation of Section 2 would suggest that it might be the policy of The Methodist Church merely to terminate the Central Jurisdiction, as such, while distributing and maintaining intact its racially segregated Annual Conferences among the regional jurisdictions. We believe this was not the objective sought by Methodists in changing the Constitution of their church. The objective was most recently expressed by the 1964 General Conference when it affirmed a policy "to achieve a racially inclusive fellowship at all levels of the Church's life." Discipline Par. 1813.5.
In light of the foregoing and the specific recommendation of the 1964 General Conference relating to the very merger in the case before us, it would be anomalous were we to rule that this merger is invalid under Amendment IX. In amending Recommendation No. 4 of Section III of the Plan of Action proposed by the Commission on Interjurisdictional Relations, the General Conference adopted the following statement:
"It is the hope and expectation . . . that early in the 1964-68 Quadrennium, the following mergers will be accomplished. . . .
"3. The Central West and the South West Annual Conferences will become a part of the South Central Jurisdiction and merge with the Annual Conferences of that Jurisdiction." (emphasis supplied)
Nothing contained in our Decision No. 217 is contrary to the views we express herein. In that proceeding, we were not asked to deal with a transfer of an Annual Conference under Amendment IX nor to consider the insulating effects of Section 4 thereof.
We do not consider here the authority of any future session of the General Conference to enact legislation implementing or regulating mergers of Central Jurisdiction Annual Conferences with regional Annual Conferences, whether in two-step transactions or otherwise; nor do we consider the application of Section 4 of Amendment IX to a merger of Annual Conferences which is not conjoint with and integrally related to a transfer under Section 2. We have not been asked to pass upon the details of the specific aspects of the agreement of transfer and merger involving the Central West Annual Conference. We decide only that when the Colleges of Bishops of the two jurisdictions involved certify that the votes required by Section 2 of Amendment IX have been cast for approval of the proposed agreement of transfer and merger, such agreement will forthwith become effective without further action on the part of either the South Central Jurisdictional Conference or the Central Jurisdictional Conference.
The Central West Annual Conference of the Central Jurisdiction may be transferred to the South Central Jurisdiction and conjointly merged with the Missouri East Annual Conference and Missouri West Annual Conference, provided that the procedure is mutually agreed upon and ratified by two-thirds or more of the total Annual Conference members present and voting in the Annual Conferences of each of the two jurisdictions, and provided further that the College of Bishops of the two jurisdictions certify to that effect. In that event, no vote of approval is required from the Jurisdictional Conference of either jurisdiction.
December 11, 1965
While in complete accord with the majority opinion, we regret that it does not deal more fully with the problem of construction, demonstrating why a proper interpretation of the language of Section 2 of Amendment IX supports the Decision. The words "transfer" and "merger" have been used freely, not rigidly, as hereinafter shown. Thus, the area of application of Section 2 is not as limited as the minority contend.
Significantly the wording of the key sentences of Section 1 and Section 2 of Amendment IX is essentially the same. Section 1 commences "A local church may be transferred from one Annual Conference to another in which it is geographically located. . ." Similarly, Section 2, which is the provision here under consideration, commences: "An Annual Conference may be transferred fromone jurisdiction to another. . ." (emphasis supplied). Clearly, these are the "transfers under the provisions of this Article" to which Section 4 makes reference and which it insulates from the boundary determination authority of jurisdictional conferences under Paragraph 15(4) and Paragraph 29 of the Constitution. A "transfer" under Section 1 of a local church from the Central Jurisdiction to a regional Annual Conference necessarily involves the element of joinder and amalgamation. Every local church of the Central Jurisdiction transferred to a regional Annual Conference becomes an integral and racially undifferentiated part of that Annual Conference. Such being the operative effect of Section 1, it follows that in the absence of a clear indication to the contrary, Section 2 must likewise be interpreted to permit transfer of an Annual Conference from the Central Jurisdiction in conjunction with its merger, consolidation or amalgamation with or into an Annual Conference of a regional jurisdiction. This accords with a well established rule in construing constitutions and statutes. In 16 Am Jur. 2d, Section 79, it is said:
"When a word or phrase is used in one part of a constitution in a plain and manifest sense, it is to receive the same interpretation when used in any other part unless it clearly appears from the context or otherwise that a different meaning should be applied to it."
We find no suggestion in Amendment IX or its history that a "transfer" under Section 2 is to be given a different or more restrictive interpretation than a "transfer" under Section 1.
There are other factors which support an interpretation of Section 2 as rendering permissible the merger here considered. In the polity of The Methodist Church, the word "merger" has rarely been used. It has been utilized legislatively in relation to the uniting of local churches (Paragraphs 185-187 and 189 of the Discipline) but so far as we can find not in relation to the joinder, merger or amalgamation of Annual Conferences, except in the limited aspect of pensions. A possible explanation of this lack of legislative usage of the word "merger" in relation to Annual Conferences is that such mergers must conform to applicable civil laws such as those relating to corporations and voluntary associations.
The words "transfer" and "merger" frequently have been used synonymously in pertinent interpretations and commentaries relating to Amendment IX, suggesting that they do not have a sharp, technical differentiation in the context in which we now consider them. For example, in the Report of the Commission on Interjurisdictional Relations to the General Conference, dated January 3, 1964, it is stated, on page 27:
"The hope of the Commission is that by September 1, 1967 all Central Jurisdictional Annual Conferences will have been merged by transfer to the regional Jurisdictions pursuant to the procedures of Amendment IX." (emphasis supplied)
Similar illustrations of this interchangeable usage of "transfer" and "merger" are to be found in the Commission's same report on pages 8, 12, 22.
In the authoritative History of American Methodism, (1964), the authors make no distinction between the concept of transfer involved in Section 1 and that involved in Section 2. At page 511 (Vol. III), the Constitutional Amendment is described as follows:
"This amendment provided a method by which churches and Annual Conferences within the Central Jurisdiction might transfer to a regional annual conference or jurisdiction, if all the conferences involved approved."
For these reasons, we cannot accept the contrary view of the minority that the "transfers" referred to in Section 2 must be given a narrow and technical interpretation which would preclude transfers involving mergers or amalgamations of the character here in question.
SAMUEL W. WITWER THEODORE M. BERRY
I respectfully dissent. As I read Section 2 of Amendment IX, it applies explicitly and solely to the "transfer" of an Annual Conference from one jurisdiction to another. If two or more Annual Conferences vote to merge, that represents an issue to which Amendment IX is not addressed. A merger of Annual Conferences requires approval of the Jurisdictional Conference in which the merging Annual Conferences are located (Constitution, paragraphs 15.4 and 29), this because it inevitably changes the number, names or boundaries of an Annual Conference.
The only factual difference that I can find between this case and Decision No. 234, simultaneously decided, is that in this case merger was agreed upon prior to transfer and is therefore assumed to have been made a condition of that transfer, but was not to be agreed upon prior to the proposed transfers in No. 234. Yet in this case it is ruled that the merger of Annual Conferences does not need the approval of the Jurisdictional Conference, while in No. 234 it does. I cannot see why or how the timing of the agreement to merge or making it a condition of a transfer affects the constitutional approval necessary to bring it about.
I do not question the propriety of tying into a single package an agreement to transfer an Annual Conference to another jurisdiction and an agreement to merge that Annual Conference with one or more Annual Conferences; but we can find nothing in Amendment IX which says that its requirements for approval of a "transfer" shall, in that circumstance, also become the requirements for approval of the concurrent merger. It seems to me that one could argue with equal plausibility that the constitutional approval required for a merger supersedes the approvals of Amendment IX when the merger and transfer are tied together. Obviously neither displaces the other. One applies to a transfer, the other to a merger, and when both transfer and merger are attempted, contemporaneously or at unrelated intervals, the consents mandated by both constitutional provisions should be obtained.
The 1964 session of the South Central Jurisdictional Conference had before it The Plan of Action for the Elimination of the Central Jurisdiction, adopted by the 1964 General Conference, which recommended this precise merger. It could have given its consent to the merger at its 1964 session, in advance of the transfer of the Central West Annual Conference or of the approvals by the merging conferences. In short, any delay in effecting this merger would not be due to cumbersome constitutional procedures but to a failure of the South Central Jurisdictional Conference to recognize that its approval was required. But even if the constitutional procedures are cumbersome, they should have been met.
Recognizing the strong desire of the Church to move to a racially inclusive structure and fellowship, why do I dissent from a decision which clears the way for an immediate step in that direction? Simply because that goal is achieved by giving Amendment IX a scope which overrides its plain meaning. The Constitution of our Church has evolved out of its history and its distribution of authority represents the teaching of experience and the accommodation of differing backgrounds and judgments. If the Constitution is to be changed there is an available process of amendment, but it should not be revised by this Council simply to expedite solution of one phase of a current problem, no matter how important the problem or how insistent the urging. With deference to my brethren of the majority, I feel that their decision reflects this error.
LEON E. HICKMAN
We dissent from the decision of the majority in this case, and because of the importance of the constitutional question raised, we are constrained to set forth in detail the grounds for our dissent.
In the first place, it should be pointed out that this is an ex parte proceeding. The matter comes before us on petition of the Central West Annual Conference of the Central Jurisdiction of The Methodist Church. The petitioner is represented by Mr. W. Astor Kirk. None of the other conferences referred to in the Statement of Facts contained in the majority opinion has appeared by counsel or otherwise, excepting that the members of the Council are in receipt of copies of a communication addressed to Mr. Kirk by Bishop Eugene M. Frank in which it is stated, inter alia:
"Hastily I call your attention to the fact that the Resolution from the Central West Conference which you offer as Exhibit A, page 10 and 11 of the document is NOT the resolution adopted by the annual conferences in the South Central Jurisdiction nor was it the Resolution adopted by the Central West Annual Conference."
We feel it appropriate to point out that in this case we have not been called on to pass upon the legality of the proposed transfer of the Central West Annual Conference from the Central Jurisdiction to the South Central Jurisdiction.
The case is before us as the result of a resolution adopted by the Central West Annual Conference on the 20th day of May, 1965, the pertinent portion of which reads as follows:
"BE IT RESOLVED, therefore, that the Central West Annual Conference hereby petitions the Judicial Council of The Methodist Church, pursuant to Paragraph 914 of the 1964 Discipline, for a declaratory decision with respect to the following question:
'May the Central West Annual Conference, after it shall have transferred from the Central Jurisdiction to the South Central Jurisdiction pursuant to Section 2 of Amendment IX, legally merge with the Missouri East Annual Conference and the Missouri West Annual Conference, under the authority of Section 4 of Amendment IX, to form racially inclusive conferences in the State of Missouri?'"
In petitioner's brief the Statement of the Nature of the Case is set forth in the following words:
"This case presents for judicial decision the following fundamental question: Where an Annual Conference transfers from the Central Jurisdiction pursuant to Section 2 of Amendment IX, may it legally merge with one or more Annual Conferences of the regional jurisdiction involved, with the sole objective of implementing the policy of The Methodist Church to eliminate structures of racial segregation at all levels of church life? Specifically, may authority for such a merger under the particular circumstances just stipulated be derived from Section 4 of Amendment IX?"
Petitioner's brief under Statement of the Facts states that Paragraph 3 of the transfer resolution stipulates as follows:
"'The Central West Annual Conference, the Missouri West Annual Conference and the Missouri East Annual Conference, by the adoption of this resolution agree that the Central West Annual Conference, after it shall have been transferred to the South Central Jurisdiction, shall no longer continue to exist as a racially segregated conference; and the said conferences further agree to proceed with the merger of the Central West, the Missouri West, and the Missouri East Annual Conferences pursuant to Section 4 of the aforementioned Amendment IX.'"
In the brief presented on behalf of petitioner, the petitioner contends:
"First, the Central West, Missouri West, and Missouri East Annual Conferences may legally merge according to the provisions of the transfer agreement between Annual Conferences of the Central and South Central Jurisdictions, which agreement was made pursuant to Section 2 of Amendment IX of the Constitution. "Second, legal authority for said merger exists under Section 4 of Amendment IX, notwithstanding the provisions of Par. 29 of the 1964 Discipline."
Since we are called upon in this case to construe certain portions of the Constitution of The Methodist Church, we deem it appropriate at the outset to set down some landmarks which have long been established by the courts in the field of constitutional construction and which have weighed heavily in our conclusion:
1. It is the duty of the courts to construe the Constitution, not to make or amend it. The Judicial Council of The Methodist Church is a judicial body, not a legislative, policy determining or constitution adopting body. As was said on May 1, 1952, in our Decision No. 85: "It is not the province of the Judicial Council to effect by judicial interpretation changes in the procedure set out in the Constitution." It is our task to declare the law, not to make it.
2. When the language of the Constitution is positive and unambiguous, we must accept it as it is, for it is the mandate of the highest power in our church, the people, as their will is made known through their representatives to the Annual Conferences, which Conferences must approve any proposed amendment or modification of the Constitution. If the words in the Constitution convey a definite meaning, then that meaning, apparent on the face of the document, must be accepted, and we have no right to add to or take from it.
3. The principle of stare decisis (to stand by decided cases) is a sound and universally recognized principle in judicial bodies. It is one of the foundations of the administration of justice.
4. If those who adopted and amended the Constitution had intended to do or accomplish something other than that which they did, they could easily have done so by plainly stating it in the Constitution or in an amendment thereto. We must take the Constitution as we find it - not as it might have been.
With these landmarks to guide us, we proceed to answer the question which has been propounded to us by the Central West Annual Conference. Based upon the record before us, the facts in this case and the specific contentions of the petitioner, we believe that the question presented comes to this narrow scope:When an Annual Conference has transferred from one jurisdiction to another jurisdiction under the procedure provided by Section 2 of Amendment IX, may such Conference be "merged" with one or more of the Annual Conferences of the jurisdiction into which the transferring Conference has transferred under the authority of Section 4 of Amendment IX without obtaining the approval of the Jurisdictional Conference into whose jurisdiction such Annual Conference has transferred?
We are convinced that the answer to this question is "no."
A careful study of the legislative history of the adoption of Amendment IX of the Constitution, ratified in 1958, and the "Plan of Action" adopted by the General Conference in 1964 indicates that two distinct steps are involved in bringing about a racially inclusive fellowship on the Annual Conference level. One of these is the transfer of Annual Conferences from the Central Jurisdiction to the geographical jurisdictions preferably in which they are located. The other is the merger of these Annual Conferences with the Annual Conferences of the jurisdiction to which they have been transferred, after the transfer has been consummated.
Amendment IX was adopted to expedite the transfer of Annual Conferences from one jurisdiction to another and the transfer of local churches from one Annual Conference to another in which they are geographically located. Since the case before us deals with Annual Conferences, we shall confine our discussion to them.
The procedures outlined in Amendment IX with respect to Annual Conferences have to do solely with their transfer from one jurisdiction to another and do not relate to their mergers with other Annual Conferences once their transfer to another jurisdiction has been consummated. The merging of Annual Conferences within a jurisdiction inevitably affects the number, names and boundaries of the Annual Conferences within that jurisdiction.
Division Two, Section VIII, Article IV of the Constitution (Paragraph 29 of the Discipline) referring to conference boundaries reads as follows:
"29. Art. IV. - Changes in the number, names, and boundaries of the Annual Conferences may be effected by the Jurisdictional Conferences in the United States of America and by the Central Conferences outside the United States of America, according to the provisions under the respective powers of the Jurisdictional and the Central Conferences."
Division Two, Section IV, Article V, Paragraph 4 of the Constitution (Paragraph 15.4 of the Discipline) in setting out certain of the powers of the Jurisdictional Conference reads as follows:
"15.4. To determine the boundaries of their Annual Conferences; provided that there shall be no Annual Conference with a membership of fewer than fifty ministers in full connection, except by the consent of the General Conference."
These paragraphs of the Constitution clearly reserve to the Jurisdictional Conferences the authority to change the number, names and boundaries of Annual Conferences within the jurisdiction. In Decision Nos. 28 and 85, the Judicial Council has upheld this constitutional power of the Jurisdictional Conference. The petitioners, however, cite Section 4 of Amendment IX as the authority for the merger of the Central West Annual Conference with the Missouri East and the Missouri West Annual Conferences upon the adoption of a resolution by the Annual Conferences involved.
Section 4 of Amendment IX reads as follows:
"4. Transfers under the provisions of this article shall not be governed or restricted by other provisions of this Constitution relating to change of boundaries of conferences."
The crux of the question before us, therefore, is the interpretation of the meaning and application of Section 4 of Amendment IX and its relation to Paragraphs 29 and 15.4 quoted above.
It is to be noted that the subject of Section 4 is the word "transfers" as indeed it is of the entire article. It clearly states that, "Transfers under the provisions of this article shall not be governed or restricted by other provisions of this Constitution relating to change of boundaries of conferences." Its purpose is to simplify the procedure necessary for the transfer of an Annual Conference from one jurisdiction to another requiring only a two-thirds vote of the Annual Conference desiring the transfer, of the other Annual Conferences of the jurisdiction from which the transfer is to be made and of all the Annual Conferences of the jurisdiction to which it is to be made.
However, any such transfer changes the boundary lines of one or both of the jurisdictions involved in the transfer. Paragraph 28 of the Discipline (which is Division Two, Section VIII, Article III of the Constitution) provides:
"28. Art. III. - Changes in the number, names and boundaries of the Jurisdictional Conferences may be effected by the General Conference upon the consent of a majority of the Annual Conferences of each of the Jurisdictional Conferences involved."
Paragraph 8.12 of the Constitution provides that among the powers granted to the General Conference by the Constitution is:
"8.12. To change the number and boundaries of Jurisdictional Conferences upon the consent of a majority of the Annual Conferences in each Jurisdictional Conference involved."
But the General Conference meets regularly only once in every four years. In order to make it possible for transfers of Annual Conferences from one jurisdiction to another to be made more quickly and thus hasten the elimination of the Central Jurisdiction, Section 4 was included in Amendment IX, specifying that transfers under this article shall not be governed or restricted by other provisions in the Constitution relating to change of boundaries. Obviously, in the case of transfer of Annual Conferences, the reference to "other provisions of the Constitution relating to change of boundaries of conferences" relates to power given to the General Conference in Paragraph 8.12 to change the boundary lines of jurisdictions.
It is contended by the petitioners that the resolution for the TRANSFER AND MERGER OF THE CENTRAL WEST ANNUAL CONFERENCE incorporated the principles and considerations contained in the resolution to transfer the Lexington Annual Conference to the North Central Jurisdiction and the Delaware and Washington Conferences to the Northeastern Jurisdiction and merge them with Annual Conferences in the jurisdictions to which they had been transferred. Attention is called to the fact that in the resolution by which the Lexington Conference was transferred to the North Central Jurisdiction and merged with conferences of that jurisdiction, the following is included:
"6 - The Jurisdictional Conference of the North Central Jurisdiction, by the adoption of this plan, determines the boundaries of its Annual Conferences in such manner as to include each local church of the Lexington Annual Conference in the other annual conferences of the North Central Jurisdiction in which that church is geographically located; thereafter, the Lexington Annual Conference shall no longer be continued as a separate entity of the North Central Jurisdiction." (Journal of the Seventh Session of the North Central Jurisdictional Conference of The Methodist Church, Par. 6, page 82)
Likewise, the following paragraph is included in the resolution adopted by the Northeastern Jurisdiction relating to the merger of the Washington and Delaware Annual Conferences with Conferences of that jurisdiction:
"RESOLVED, that the Delaware and Washington Conferences be merged with the present Annual Conferences of the Northeastern Jurisdiction on the following basis:
"1. That the boundaries of each Annual Conference of the Jurisdiction shall be so determined as to include all local churches located within its geographical territory." (Journal of the Seventh Northeastern Jurisdictional Conference of The Methodist Church, preamble and Par. 1, page 177)
Thus, it has been recognized in both cases in which transfers and subsequent mergers of Annual Conferences have taken place that affirmative action by the Jurisdictional Conference has been necessary. To date no action has been taken by the South Central Jurisdiction authorizing the merger of the three conferences involved; and, therefore, the three conferences may not merge until such specific action is taken by the South Central Jurisdiction.
We believe that petitioner's case stands or falls on whether or not there may be read into Section 4 of Amendment IX to the Constitution a meaning or implication that Annual Conferences may be merged at the time of transfer from one jurisdiction to another. Neither the Constitution nor the legislative enactments of the General Conference makes specific reference to the merger of Annual Conferences, and we believe that there are sound reasons why this is so. The Annual Conferences are the basic bodies of The Methodist Church. Division Two, Section IV of the Constitution of The Methodist Church (Paragraph 4.4 of the Discipline) provides: "There shall be Annual Conferences as the fundamentalbodies in the church, with such powers, duties, and privileges as are hereinafter set forth." When an Annual Conference transfers from one jurisdiction to another jurisdiction under authority of Section 2 of Amendment IX, it immediately becomes a constituent member of the jurisdiction to which it transfers. It retains its entity as an Annual Conference. It continues as a separate unit of The Methodist Church, having its own organizations, including commissions, committees, and boards, and continues to hold its assets and to be responsible for its liabilities. In brief, when an Annual Conference transfers from one jurisdiction to another, it takes with it all of its bag and baggage. Division Two, Section VIII, Article IV of the Constitution (Paragraph 29 of the Discipline) delegates to the Jurisdictional Conference the right to make the changes in the number, names and boundaries of the Annual Conferences. This is a specific delegation of authority. We find nothing in Amendment IX of the Constitution in conflict with Paragraph 29 of the Discipline, and Section 4 of Amendment IX which is relied upon by petitioner specifically refers to transfers under the provisions of Amendment IX. The words used therein are clear, explicit, and unambiguous. When it says "Transfers under the provisions of this article . . . " we believe it means "transfers," not "mergers," and we believe it means "transfers under the provisions of this article." As was said by the court in case of Cooke v. Iverson, (108 Minn. 388, 122 N.W. 251, 52 L.R.A. (new series) 415): "When the language of the Constitution is positive and free fromall ambiguity, courts are not at liberty, by a resort to the refinement of legal learning to restrict its obvious meaning to avoid the hardship of a particular case. We must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power."
In the case of Utah Builders Supply Co. v. Gardner, 86 Utah 250 39 P. 2d 327, 103 A.L.R. 928, the Supreme Court of Utah stated the rule positively and pointedly when it said: "We must give effect to our constitutional and statutoryprovisions according to their language and obvious intent."
The Supreme Court of the United States in the case of Lake County v. Rollins (130 U.S. 662, 32 L.Ed. 1060) states the rule in the following words: "We areunable to adopt the constructive interpolation ingeniously offered by counsel for the defendant in error. Why not assume that the framers of the Constitution and the people who voted it into existence meant exactly what it says? At the first glance, its reading produces no impression of doubt as to the meaning. It seems all sufficiently plain; and in such case there is a well settled rule which we must observe. The object of construction, applied to a constitution, is to give effect to the intent of the framers, and of the people in adopting it. This intent is to be found in the instrument itself; and when the text of a constitutional provision is not ambiguous the courts, in giving construction thereto, are not at liberty to search for its meaning beyond the instrument..." "If," the Supreme Court continues, "the words convey a definite meaning, which involves no absurdity or any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the Legislature have the right to add to it or take from it."
Many years ago Justice Bronson, in the case of People v. Purdy (2 Hill, 35), in commenting on the danger of departing from the import and meaning of the language used to express the intent, and hunting after probable meanings embraced in that language, said: "In this way the Constitution is made to meanone thing by one man and something else by another, until in the end it is in danger of being rendered a mere dead letter, and that, too, when the language is so explicit that it is impossible to mean more than one thing, unless we lose sight of the instrument itself and roam at large in the fields of speculation." And again in the Lake County case referred to above, the United States Supreme Court said: "Words are the common sign that mankind make use of to declare theirintention to one another; and when the words of a man express his meaning plainly, distinctively and perfectly, we have no occasion to have recourse to any other means of interpretation."
We cannot agree with the reasoning of the majority opinion in this case because we feel that to attain the conclusion reached therein it is necessary to read into Section 4 of Amendment IX something which is not there.
We are convinced that if a merger of Annual Conferences is desired, this is a second step which must be taken after the transfer has been accomplished even if carried out as a part of a single plan. Even though the merger is agreed to as a condition to the transfer, there are necessarily two steps, a transfer and a merger.
This requirement is not without merit, for as we pointed out in our Decision No. 217, the merging of two Annual Conferences may have far reaching consequences and a Jurisdictional Conference is in a much better position to weigh the overall consequences and equities of a merger than are the conferences involved. We would point out that the view of the minority in this case is supported by previous decisions of this Council, including Decision Nos. 28, 85 and 217, and we feel that the majority opinion cannot be reconciled with those previous decisions of this body.
Furthermore, we believe the legislative history of the adoption of Amendment IX to the Constitution of The Methodist Church supports the position we take. It is a matter of common knowledge in our church that Amendment IX was proposed, favorably acted upon by the General Conference and adopted by the required number of Annual Conferences on the ground that transfers of Annual Conferences out of the Central Jurisdiction into the regional jurisdictions were being unduly delayed because General Conference meets regularly only once every four years and that if Amendment IX were adopted, votes could be taken by the required Annual Conferences much more quickly since they meet every year. But we find nothing in the legislative history of this Amendment which would lead us to believe that Annual Conferences may be merged after such transfer has been accomplished without the action of the Jurisdictional Conference, or that the Annual Conferences involved can make ground rules for such transfers and mergers which are not in harmony with the clear and explicit wording of the Constitution itself.
Also, we believe that the actions taken and the course pursued by the appropriate bodies within the church since the adoption of Amendment IX supports the position we take.
On the hearing of this case, the Council had before it an amicus curiae brief and a supplement thereto filed by Mr. Charles C. Parlin, who was Chairman of the Commission of 70 during the 1956-60 quadrennium and of the Commission of 36 during the 1960-64 quadrennium; and Mr. Parlin in his brief, speaking of the work of his Commissions, said:
"Our studies led us to a clear understanding that there were two separate and distinct problems: (1) the transfer of an Annual Conference from one Jurisdiction to another and (2) the realignment of Annual Conference boundaries within a Jurisdiction once a transfer has been effected. In the Commission of 36 we finally agreed to avoid confusion by adopting a terminology: To call the first step 'transfers' of Annual Conferences and the second step 'merger' of Annual Conferences. The 'Plan for the Elimination of the Central Jurisdiction' proposed by the Commission of 36 and adopted by the 1964 General Conference uses this terminology for the changing of Annual Conference boundaries."
We agree with the conclusion stated in Mr. Parlin's brief when he says:"Amendment IX deals only with transfers of Annual Conferences; not with the change in boundaries by their dissolution or merger once they are in the new jurisdiction. It seems clear to me that this second, independent step of boundary change by dissolution or merger within the Jurisdiction remains governed by the basic grant of authority to Jurisdictions by Paragraph 15, Division Two, Art. V, para. 4 as reinforced by the provisions of Paragraph 29 (Division Two, Sec. VIII, Art. IV).
"Again, the quoted section of the Constitution deals only with transfers - not with mergers. The blending or merger of two Annual Conferences, whether by formal 'statutory merger' or by the dissolution of one and the absorption by the other of all local churches within its borders is not a transfer of an Annual Conference."
We desire to point out that in our opinion the long recognized and well established principle of stare decisis - to stand by decided cases, to uphold precedents and to maintain former adjudications - is as necessary and proper in the law of the church as it is in the law of the land. We do not believe that our decisions should mean one thing today and something else tomorrow. Law by which men and churches are governed should be fixed, definite and known and should not be changed to accommodate the fluctuating sentiment of persons or groups. We would remind our brethren of the majority that we believe their opinion in this case is in conflict with previous decisions of this Council, specifically with Decision Nos. 28, 85, and 217. In the last numbered case, which was decided on October 30, 1964, by a unanimous vote of this Council, we said:
"Authority to determine number, names and boundaries of Annual Conferences in the United States is vested in the several Jurisdictional Conferences by Section IV, Article V, Paragraph 4 and Section VIII, Article IV of the Constitution of The Methodist Church. The provisions appear in Paragraphs 15 and 29 of the 1960 Discipline.
"The merger of two Annual Conferences may have far-reaching consequences affecting voting rights at General Conference sessions, episcopal supervision, salary and pension rights of ministers, the support of institutions and agencies of the Annual Conferences concerned and, quite possibly, the overall effectiveness of the Christian ministry in the Annual Conferences involved.
"A Jurisdictional Conference is in a much better position to weigh the overall consequences of a merger of two Annual Conferences than are these conferences themselves. It should be able to resolve conflicting interests of the two Annual Conferences. "It is for these reasons, among others, that we determine that a Jurisdictional Conference may not delegate to its constituent Annual Conferences its authority to determine when, and under what conditions, two Annual Conferences may merge."
We think it appropriate also to call attention to the fact that we consider the majority opinion in this case to be in conflict with the decision of this Council handed down on this very day in Decision No. 234 by an eight to one vote. In Decision No. 234 we have said:
"A 'merger' of such a transferring Annual Conference with another Annual Conference of the jurisdiction into which the transfer was made, is a second step that may be taken after the transfer has taken place. Even if carried out as part of a single plan, or even though the merger is agreed to as a condition to the transfer, there are necessarily two steps, a transfer and a merger."
We of the minority in this case believe that this Council, being a judicial body, should be consistent in its decisions.
For the reasons herein set forth, we are unable to agree with the majority opinion and therefore record our dissent.
LESTER A. WELLIVER J. H. CHITWOOD PAUL R. ERVIN
DECISION NO. 234
Re: Appeal of the Southeastern Jurisdictional Conference for a rulingconcerning a plan of action under Constitutional Amendment IX providing for transfer of Annual Conferences of the Central Jurisdiction within the Geographical Bounds of the Southeastern Jurisdiction.
Re: Petitions for Declaratory Judgments with respect to the above captionedmatter filed by the Advisory Council on Interjurisdictional Affairs of the Southeastern Jurisdiction and by the Committee of Five of the Central Jurisdiction.
DIGEST OF OPINION
Amendment IX of the Constitution (Discipline, Paragraph 47) does not apply to the merger of two or more Annual Conferences, even though one of them has previously transferred into a regional Jurisdiction from the Central Jurisdiction under the terms of Amendment IX, if the transfer was not conditioned upon an agreement that a merger would follow. Otherwise, a merger of Annual Conferences necessarily involves a change in their number, names or boundaries and as a consequence requires the prior approval of the Jurisdictional Conferences of which such merging Annual Conferences are members (Constitution - Discipline, Paragraphs 15.4 and 29).
The Southeastern Jurisdictional Conference, on July 11, 1964, adopted a report of a Special Committee on Interjurisdictional Matters which included, inter alia, the following recommendation:
"We recommend that each annual conference approve the transfer of such Annual Conferences of the Central Jurisdiction into the Southeastern Jurisdiction upon the condition that the merging of Annual Conferences within the jurisdiction will be a jurisdictional matter to be worked out when such merger is mutually agreeable to the conferences concerned, the boundaries of the transferring conferences to remain intact until they may be changed by voluntary action of the Southeastern Jurisdictional Conference as provided in Constitution of The Methodist Church."
On the same day, a motion by John C. Satterfield of Mississippi was adopted by a vote of more than one-fifth of the members of the Southeastern Jurisdictional Conference, reading as follows:
"I move that an appeal be taken to the Judicial Council to determine the constitutionality of the action of the Jurisdictional Conference which has just been taken recommending the transfer of the Annual Conferences of the Central Jurisdiction into the Southeastern Jurisdiction in accordance with the 'Plan of Action' therein set forth, and particularly the provision thereof that 'the boundaries of the transferring conferences to remain intact until they may be changed by voluntary action of the Southeastern Jurisdictional Conference as provided in the Constitution of The Methodist Church."'
On October 30, 1964, we postponed consideration of this matter to afford an opportunity to representatives of the Central Jurisdiction to file briefs and participate in oral argument. In Memorandum Decision 220, we noted that petitioner's briefs had placed new interpretations upon the scope and purpose of the "plan of action" of the Southeastern Jurisdictional Conference, the legal issues raised and the grounds of our jurisdiction. We noted that petitioner, by brief, had raised for the first time the question whether the General Conference possesses authority under the Constitution to determine, change or otherwise deal with boundaries of Annual Conferences, particularly those of the Central Jurisdiction which might be transferred to a regional Jurisdiction pursuant to Amendment IX. Seeking clarification of these matters, we invited appropriate petitions under Par. 914 of the Discipline directly raising any question of constitutionality thought to be involved in the appeal of the Southeastern Jurisdiction.
In response to this invitation, the Advisory Council on Interjurisdictional Affairs of the Southeastern Jurisdiction petitioned for a declaratory decision on the above quoted recommendation of the Southeastern Jurisdictional Conference. The Advisory Council and the Committee of Five of the Central Jurisdictional Conference also asked for advisory decisions on other, but related, questions which we have consolidated and this day decided in Decision No. 232.
We have jurisdiction to render a declaratory decision under Par. 914 of the Discipline, both the Committee of Five and the Advisory Council on Interjurisdictional Affairs being subordinate "bodies" of their respective Jurisdictional Conferences, charged by and on behalf of their Jurisdictional Conferences with responsibilities related directly to the plan of action recommended by the Southeastern Jurisdictional Conference to its constituent Annual Conferences.
But we do not have jurisdiction under Par. 905 of the Discipline to determine the constitutionality of this plan of action upon the direct appeal of one-fifth of the members of the Southeastern Jurisdictional Conference. This conclusion is predicated upon the fact that the plan of action of the Southeastern Jurisdiction is at most a recommendation by the Jurisdictional Conference to its Annual Conferences. Under Amendment IX, a Jurisdictional Conference has no role to play in the transfer of an Annual Conference from one Jurisdiction to another. The Annual Conferences of the Jurisdictions involved are the controlling parties, and any plan submitted to the Annual Conferences by a Jurisdictional Conference concerning the transfer of an Annual Conference is no more than advice or a recommendation. It may be good or bad advice, and action pursuant to it may or may not be constitutional. But, the act of giving advice is beyond successful constitutional challenge.
Eight members of the Council agree that the plan of action recommended by the Southeastern Jurisdictional Conference is constitutional. It assumes that the transfer of Annual Conferences from the Central Jurisdiction to the Southeastern Jurisdiction would be made with the approval of the requisite number of Annual Conference members as mandated by Amendment IX. That is obviously correct.
The plan explicitly disavows any agreement as to whether or when any of these Annual Conferences shall merge with any of those now in the Southeastern Jurisdiction. This development is made contingent upon the later approval of the Southeastern Jurisdictional Conference, pursuant to its authority over number, names and boundaries of its Annual Conferences conferred by Disciplinary Paragraphs 15.4 and 29 of the Constitution. This reservation is plainly within its constitutional power.
The plan of action before us is to be distinguished from the plan approved in the Missouri case, Decision 233. In that situation, the transfer of an Annual Conference from one jurisdiction to another was coupled with an agreement that merger would follow forthwith. A majority of this Council held that if and when a transfer so conditioned was approved by a vote of Annual Conference members as provided in Amendment IX, no further approvals were required. But in the instant case the Annual Conference transfers recommended by the plan were not coupled with an agreement to merge. Quite the reverse, the plan reserved this second step for later determination by the Jurisdictional Conference. Under these circumstances, Amendment IX controls the approvals required for a transfer and Paragraphs 15.4 and 29 of the Constitution, the consent necessary for a merger.
A further elaboration of the varying views of the members of the Council concerning the scope of Amendment IX is found in the Missouri case. Nothing is to be gained by reiteration beyond notation that the argument and decision of the present case have not changed any of the views expressed in Decision 233.
The plan of action of the Southeastern Jurisdiction is not a proposal for transfer conditioned upon subsequent merger; and, hence, is based upon a correct analysis of the Constitution of the church and other Disciplinary provisions as they exist today. That does not mean, however, that the plan, if acted upon by an Annual Conference of the Central Jurisdiction, amounts to a compact or contract beyond the reach of appropriate General Conference legislation. In Decision 232, we have advised that the subject of racial inclusiveness is a matter "distinctively connectional," and, therefore, within the legislative competence of the General Conference, subject to the constitutional qualification (Discipline, Paragraph 8.14) that such legislation be "subject to the limitations and restrictions of the Constitution of the church."
The Southeastern Jurisdictional Conference has recommended that each of its Annual Conferences approve the transfer into the Southeastern Jurisdiction of such Annual Conferences of the Central Jurisdiction as lie within the geographical bounds of the Southeastern Jurisdiction, such transfers to be made upon the condition that the merging of Annual Conferences within that Jurisdiction would be worked out when such mergers were mutually agreeable to the Annual Conferences concerned, the boundaries of the transferring Annual Conferences to remain intact until changed by voluntary action of the Southeastern Jurisdictional Conference pursuant to its Constitutional power over the names, number and boundaries of its constituent Annual Conferences. The procedures embodied in this plan of action are mandated under existing church law; and the constitutionality of the plan is, therefore, sustained.
April 15, 1966
A brief statement is necessary to explain why this concurring opinion is being substituted for that originally written in support of Decision No. 234, as adopted by the Judicial Council on December 11, 1965, and subsequently released, together with several concurring and one dissenting opinions to all parties of record, their counsel, and other interested persons throughout the Church. At its session on April 16, 1966, the majority of the Council saw fit to reconsider the above mentioned decision, and made changes in the Analysis and Digest of the Opinion, to parts of which our original concurring opinion was directed, thus making it obsolete.
We hereby reaffirm our wholehearted concurrence with the decision arrived at, namely, that the action of the Southeastern Jurisdictional Conference was constitutional. We respectfully dissent from that part of the argument which supports the constitutionality of the Plan of Action of the Southeastern jurisdiction on the ground that it does not include, "a proposal for transfer conditioned upon subsequent merger; and, hence, is based upon a correct analysis of the Constitution of the Church and other Disciplinary provisions as they exist today." (Emphasis supplied.) This is basically a restatement of the position of the majority in Decision No. 233 to which we dissented, and which dissent we hereby renew. We believe it is an unsound position for the following reasons:
1. Transfers and mergers are separate and distinct processes, basically because of the separate, distinct and different constitutional requirements for their consummation. (Amendment IX Sec. 2 and Paragraphs 15.4 and 29.)
2. The plain language of Amendment IX clearly refers to transfers and not to mergers.
3. Nowhere in the Constitution, or in the legislation enacted by the General Conference is there support for the position, held in Decision No. 233 and implied in Decision No. 234, that, if a transfer and merger are tied together, take place at the same time, and are authorized by resolutions passed by the Annual Conferences involved, does Section 4 of Amendment IX abrogate the Annual Conference boundary determining authority granted to the Jurisdictional Conferences by the Constitution in Paragraphs 15.4 and 29.
Respectfully, LESTER A. WELLIVER PAUL R. ERVIN J. H. CHITWOOD
May 8, 1966
I disagree with and dissent from the reasoning and judgment of the majority opinion in this case.
On the question of jurisdiction, there appears to be no justification for accepting jurisdiction on the petitions for declaratory decision from the Advisory Council on Interjurisdictional Affairs of the Southeastern Jurisdiction and the Committee of Five of the Central Jurisdictional Conference under Paragraph 914 and declining or avoiding acceptance of jurisdiction of the appeal of the Southeastern Jurisdictional Conference under Paragraph 905.
"The Judicial Council shall determine the constitutionality of any act of a Jurisdictional or Central Conference upon . . . the appeal of one-fifth of the members of that Jurisdictional or Central Conference." (Discipline Paragraph 905, emphasis added)
I believe the Report of the Special Committee on Interjurisdictional Matters and adoption of its recommendations by the Southeastern Jurisdictional Conference was an "act" within the meaning and intent of Paragraph 905, and jurisdiction of the appeal to determine the constitutionality of its act should have been accepted and dealt with directly. The recommendations were clear; their adoption was intended to influence, if not control, the voluntary and arm's length negotiations between Annual Conferences to effect transfer and merger under Amendment IX (Constitution. Division Two, Article V, Section VIII) by the interposition and assumed supremacy and exercise of unilateral power of the Jurisdictional Conference under its authority "to determine the boundaries of their Annual Conferences" (Paragraph 15.4). The purpose of this act has been clearly stated in the briefs of the Southeastern Jurisdiction and was to maintain intact the racial character of the boundaries of transferring Conferences until changed by voluntary (unilateral) action of the Jurisdictional Conference. This I consider at variance with and violative of Amendment IX.
I consider the Decision of the majority that the procedures embodied in the plan of action of the Southeastern Jurisdictional Conference "are mandated under existing church law; and the constitutionality of the plan is, therefore, sustained" as in error in two particulars.
First, the majority has strayed from the discipline of judicial restraint and indulged in judicial legislation by granting to Jurisdictional Conferences the power to approve "mergers" after transfer of Annual Conferences under the authority to determine boundaries.
I believe the proper province for defining and determining merger of Annual Conferences is the General Conference under its legislative power over matters distinctively connectional (Paragraph 8). The General Conference has legislated only in a limited manner on the subject of mergers, having provided for merger of local churches (Discipline Paragraphs 185-187). As to the merger of Annual Conferences, no specific legislation has been enacted, but the privilege of merger is, it appears, implied in Paragraphs 625 and 634.
Paragraph 625 provides: "Annual Conferences may become severally bodiescorporate, wherever practicable, under the law of the countries, states, and territories within whose bounds they are located." Thus merger of corporate Annual Conferences within a state would be subject to the provisions of state law.
In such case the provisions of the Discipline Paragraph 634 would apply, i.e.:
"The Annual Conference may make rules to govern its own procedure; provided that no Annual Conference shall make any rule contrary to the Constitution or to the powers granted to it by the General Conference; and provided, further, that in the exercise of the powers granted by the General Conference each Annual Conference shall act in all respects in harmony with the policy of The Methodist Church with respect to elimination of discrimination on the basis of race."
The implied authority of Annual Conferences to effect mergers is recognized in Paragraph 1609.1: "Whenever two or more Annual Conferences . . . are to bemerged, in whole or in part, there shall be elected by each conference affected a Distributing Committee of three members ...." to allocate pension responsibility and to distribute equitably the permanent funds and other assets of the conference or conferences affected.
I find no express authority granted to Jurisdictional Conferences by Constitution or by legislation of the General Conference to participate in, initiate, or approve merger of Annual Conferences. To construe this power to be implied in the authority to determine boundaries of Annual Conferences is clearly judicial legislation which in all cases should be avoided. Even if by the most generous interpretation such authority is implied, the power to establish boundaries for merged conferences should be limited to geographical criteria, and be restricted in the same manner as Annual Conferences (Paragraph 634) namely, that Jurisdictional Conferences "shall act in all respects in harmony with the policy of The Methodist Church with respect to the elimination of discrimination on the basis of race."
It is recognized that in the historical development of a policy of a racially inclusive church within the guiding principle of voluntarism, the General Conference made no definitive expression on the question of merger in adopting Amendment IX.
It was the Commission on Interjurisdictional Relations in its Plan of Action for the elimination of the Central Jurisdiction, presented and adopted as amended by the 1964 General Conference, that first identified the separate steps of transfer and merger of Annual Conferences and the role of Jurisdictional Conferences and Annual Conferences. It is patently clear throughout Part IV of that Report, as amended and adopted, that the responsibility and authority for effecting mergers, as well as transfers under Amendment IX, were in the Annual Conference. Thus, Recommendation 1 - "That each Annual Conference designate a Committee or Commission to meet with the designated group from other Conferences involved to discuss and work out together the problems and adjustments involved in the transfer ... into the regional Jurisdictions.
Recommendation 2 - "That each of the committees of the newly aligned Annual Conferences and each of the Committees of the Annual Conferences with which they overlap meet and discuss ways and means of merging Annual Conferences, . . ." (emphasis added)
Recommendation 4 - "That each Annual Conference of the Central Jurisdiction vote to merge with the Jurisdiction in which it is geographically located, by transfer as provided in Amendment IX." (emphasis added)
Recommendation 5 - "That each Annual Conference of the Central Jurisdiction and Annual Conferences of the regional Jurisdictions, where transfers are in process of negotiation, meet as soon as possible after the Central Jurisdictional Conference has realigned the boundaries of its Annual Conferences to take such actions as will facilitate transfers and mergers." (emphasis added)
Throughout these recommendations is the explicit requirement of mutual bilateral negotiation and agreement by the Conferences involved to effect transfer and merger. This is fundamental in the law of merger. The Judicial Council has recognized that mutual ag