fore the House Committee on Military Affairs. That bill relies solely upon the efficacy of a draft which reaches both officers and men of the Organized Militia as individuals. While the House committee draft contemplates a change of status for the Organized Militia from State troops to National troops, it deals with but one status at a time, and when the National status is assumed the State status is expressly canceled. Under the terms of the House bill the officer, having been drafted, is recommissioned by the President and is inducted into office, which he holds in the Federal service in the constitutional way."

6. In commenting on the case of Presser v. Illinois the dilemma of a militiaman drafted by Nation and State was suggested. Fortunately, the question is purely an academic one.

Those who are interested in the military legislation now pending before Congress will find in the Opinion of the Judge Advocate General a most comprehensive discussion of the many constitutional questions involved. It is hoped, however, that this paper will, at least, serve to suggest the most fundamental problems not only in the pending military legislation, but in any legislation where there is danger of a conflict of powers between the sovereign Nation and the sovereign State.

ROCHESTER, N. Y.

R. H. ROGERS.

CHURCH OFFICERS IN THE AMERICAN LAW.

There are two classes of church officers generally recognized but known under many different names. Ecclesiastical officers proper, such as deacons, ordinarily confine their attention to the spiritualities of their church and do not concern themselves with its temporalities. Church trustees, on the other hand, under whatever name they may go, are concerned chiefly if not exclusively with the management of the church property and with the ways and means of raising the funds necessary for its work. Occasionally both officers, however, may be found united in one person. or one board.

It is obvious that this chapter cannot concern itself to any great extent with the merely ecclesiastical officers of a church. Such officers, since they do not make contracts, or acquire property for their principal, will hardly ever be involved in any lawsuit. Their relation with the church will be such as they make it. Even this relation, however, will rarely come before the courts, since it does not involve any property rights.

An entirely different situation is presented in connection with the office of the church trustees. Such trustees, as the name indicates, are concerned with the property of the church. Their office originated when the incorporation of church societies was quite difficult and when in consequence the custom developed of placing the title of church property into the name of individuals for the church. It was fixed by law in many states when these individuals were incorporated under the trustee corporation theory.1 The name remains to this day even in those states which have adopted the aggregate theory of church corporations

1 See an article by the author on Classes of American Religious Cor

porations, in the May issue of the 1915 Michigan Law Review.

and which in consequence have reduced the trustees to the position which a board of directors holds in other corporations. Under all these varying circumstances the trustees, or officers corresponding to them, are charged with the management of the church property and as such will quite frequently be brought before the courts. The remainder of this chapter will therefore be principally concerned with them.

Before treating of the official duties and personal liabilities of church officers it will be well to say a few words concerning the mode by which they become officers. Occasionally they are appointed by certain designated individuals. Not much controversy can arise in such a case. The appointee will simply become an officer if he receives the appointment from such individuals. Where, however, as is most frequently the case, the office is conferred by an election, a far more complicated question is presented. The meeting at which such an election is held may be attacked as not properly noticed, or as otherwise improperly convened. And even when the meeting is conceded to have been convened properly the election held at such a meeting may be objected to on various grounds. In tracing the officer's title to his office it will therefore be well to go back of his election and attempt to outline the necessary measures that must be taken leading up to it.

Among these measures a proper notice of the proposed meetings to the members of the church is of the first importance. If such a notice were not necessary the door would be opened wide to chicanery and fraud. A small active minority of the society could contrive to hold clandestine meetings and could thus force its will on the majority.3

To prevent such a result to render the acts of any such body assembled as a congregation valid not only notice.

2 Alexander v. Bowers, 79 S. W. 342 (Tex. Civ. App.)

3 Dahl v. Palache, 68 Cal. 248, 9 Pac. 94, in re African M. E. Union

Church, 28 Pa. Super. Ct. 193. See
Wiswell V. First Congregational
Church, 14 Ohio St. 31, 36.

6

must be given, "but the authority must be by some one authorized to assemble the body.' " While no notice is necessary when it is merely proposed to organize a congregation or when the meeting is merely an adjournment of a regularly called annual meeting the notice prescribed by statute or by-law or customarily given when the statutes or by-laws are silent on this matter should in all other cases be conscientiously given in order that every member of the society may have the opportunity to be present and express his preference.

7

8

The particular mode by which such notice is given will of course vary considerably with the different statutes, bylaws and customs by which the society is governed. When the statute merely requires "public notice" such requirement will be met by a three-time announcement from the pulpit and even by a notice attached to the church door and read by a member of the congregation at the end of the services. Where, however, the statute requires a warning for a certain time in advance, 'such warning must be given and a custom to the contrary cannot be pleaded, though this custom be hoary with age." While such a statute will be reasonably construed 10 the formalities prescribed by it" or prescribed by a by-law in the absence of a statute12 should be scrupulously observed, though such by-laws, being passed by the society, may, unlike the stat

4 State v. Aucker, 31 S. C. Law (2 Rich. Law) 245, 284; Ladd v. Clements, 58 Mass. (4 Cush) 476.

5 Franke v. Mann, 106 Wis. 118, 81 N. W. 1014, 48 L. R. A. 856.

6 Wiswell v. First Congregational Church, 14 Ohio St. 31, 40.

7 Craig V. First Presbyterian Church of Pittsburg, 88 Pa. St. 42, 32 Am. Rep. 417.

8 West Koshkonong Congregation v. Ottesen, 80 Wis. 62, 49 N. W. 24. See Spiritual and Philosophical Temple v. Vincent, 127 Wis. 93, 105 N. W. 1026.

9 Hicock v. Hoskins, 4 Day 62. (Conn.) See People ex rel Smith

v. Peck, 11 Wend. 604, 27 Am. Dec. 104.

10 Christ Church V. Pope, 74 Mass. (8 Gray) 140, 144.

11 Congregational Society of Bethany v. Sperry, 10 Conn. 200; Tuttle v. Cary, 7 Me. (7 Greenl) 426; Reformed Methodist Society of Douglas v. Draper, 37 Mass. 349; Canadian Religious Association v. Parmenter, 180 Mass. 415, 425, 62 N. E. 740; Wiggin v. First Freewill Baptist Church in Lowell, 49 Mass (8 Met) 301.

12 Weber v. Zimmerman, 22 Md. 156; Gray v. Christian Society, 137 Mass. 329; Small v. Cahoon, 207 Mass. 359, 93 N. E. 588.

15

14

ute, be waived by it.13 When there is neither statute nor by-law, it has been held by the New Hampshire court that the question will depend upon the custom of the society while the Massachusetts court has held that a meeting thus convened is not binding unless all the members had actual notice of it. In no case, however, will a person outside of the congregation be allowed to raise an objection to a meeting on account of insufficient notice. "The statutory provision regarding such notices does not concern the public at large, but is a mere regulation for the benefit of the members of the society themselves.'' 16 Nor will even a member of the society be allowed to raise the question when he has received actual notice of the proposed meeting17 but has made no objection to it.18 In cases where the meeting has been held long ago and in consequence much evidence in regard to it has disappeared, the court may even presume a proper notice. "For the purpose of upholdproceedings, ut res magis valeat quam pereat, many deficiencies, not inconsistent with what does appear, are supplied by presumption and intentment of law." 20

19

But it is not enough that the meeting be properly called. It must also be properly conducted. This again will depend upon the statute, under which the society is acting on the by-law or custom which it has adopted or developed. The conduct of such meetings will not be of any great difficulty when the society is at peace with itself. It will, however, be an extremely difficult matter when a factional war has broken out in its midst. It is at such times that rules and

13 Bucksport v. Spofford, 12 Me. (3 Fairf.) 487.

14 Groton Congregational Church v. Blood, 62 N. H. 431.

15 Wiggin v. First Freewill. Baptist Church, 49 Mass (8 Meet) 301, 312.

16 East Norway Lake Norwegian Ev. Luth Church v. Froislie, 37 Minn. 447, 451, 35 N. W. 260. See First Parish in Sutton v. Cole, 20 Mass. (3 Pick) 332.

17 Hubbard v. German Catholic Congregation, 34 Iowa 31.

18 Helbig v. Rosenberg, 86 Iowa 159, 53 N. W. 111; People ex rel Smith v. Peck, 11 Wend. 604 (N. Y.), 27 Am. Dec. 104; First Parish in Sutton v. Cole, 20 Mass. (3 Pick) 232, 241; Dempsey v. North Michigan Conference, 98 Mich. 444, 57 N. W. 267.

19 East Norway Lake Norwegian Ev. Luth. Church v. Froislie, 37 Minn. 447, 35 N. W. 260.

20 Bucksport v. Spofford, 12 Me. (3 Fairf.) 487, 491.