regulations adopted or customs developed during peace times will be subjected to a severe test. The question who is or who is not entitled to vote during such controversies may decide the policy and destiny of the society for many years to come. It is of course true that only members of the society are entitled to vote. It is further true that no one can become a member except by mutual consent. Says the Massachusetts courts: "The relation of a member to a parish is founded on contract; and can be created in no way but by the agreement of the parties. Any person wishing to become a member must express his wish in writing, and the society, by a direct vote or by the act of an authorized agent, must accede to the application. Then the agreement is complete, creates the membership, and gives a right to vote and take part in the proceedings of the society.' This, however, in view of the looseness that is practiced in many churches in receiving members, will leave many questions unsolved which will rise up at times of strain and stress to perturb the congregation.

99 21

But even conceding that certain persons are members of the church, it does not necessarily follow that they are entitled to vote. Minors may become members of religious corporations. Yet, despite this fact, they should not be permitted to affect the property rights of others as long as they are not trusted by the law to control their own.22 So also may the statute under which a corporation is organized restrict the right to vote to free white male citizens who are pewholders,23 or to such members as are communicants or have paid a certain contribution in the manner provided for by the statute.25 Under such circumstances members of the church who cannot bring themselves within

24

21 First Parish in Sudbury V. Stearns, 38 Mass. 148, 153.

22 McIlvain v. Christ Church of Reading, 2 Woodw. Dec. 293, 300, 28 L. I. 126, 8 Phila. 507. See Weckerly v. Geyer, 11 Serg. & R. 35 (Pa.)

23 Torbert v. Bennett, 24 Wash. Law. Rep. 149.

24 Weckerly v. Geyer, 11 Serg. & R. (Pa.) 35.

25 Juker v. Commonwealth, 20 Pa. (8 Harris) 484; State v. Crowell, 9 N. J. Law (4 Halst) 390. A bylaw cutting down such requirement is invalid. Raynor v. Beatty, 9 W. N. C. 201. (Pa.)

27

the statutory requirements should be excluded by the moderator of the meeting from casting their ballot. Such action, however, should be taken before their votes are accepted. The question whether unauthorized persons have availed themselves of the franchise would be liable to such uncertainty in the proof, that the very nature of the subject shows that the evil should be corrected at the time, instead of being left to remote periods afterwards. '26 It would certainly be difficult if not impossible after the votes are cast to ascertain which of the ballots to withdraw from the box and reject. "It would be idle to attempt to conduct any election by ballot, if, after the election was closed, the inspectors could, when they ascertained who had the greatest number of votes, institute an inquiry whether any of those who voted for the successful party were legal voters, and in this way change the result of the election." 28 An acceptance of such a vote has therefore been treated as a judicial determination on the part of the moderator that it is legal and valid.29 Through all the reasoning of the courts a desire to uphold the results of elections and other determination of religious societies is apparent. While elections at which legal voters were excluded 30 or at which tickets marked contrary to the provisions of the by-laws were received, or at which the proper moderator did not preside, or at which the determination was reached by subscription instead of by vote,33 have been held to be invalid other meetings in which a proper vote was challenged whereupon the voter subsided, or when the election was by "hand vote" instead of by ballot,35 or whose chairman

32

31

26 First Parish in Sutton v. Cole, 20 Mass. (3 Pick.) 232, 243.

27 Hartt v. Harvey, 10 Abb. Pr. 321, 32 Barb. 55, 19 How. Pr. 245. 28 People ex rel Hartt v. White, 11 Abb. Pr. 168, 179 (N. Y.)

29 Re Williams, 107 N. Y. Supp. 1105, 57 Misc. 327.

30 Wiswell v. First Congregational Church, 14 Ohio St. 31.

31 Commonwealth v. Woelper, 3 Serg. & R. (Pa.) 29, 8 Am. Dec. 628.

34

32 People ex rel Smith v. Peck, 11 Wend. 604, 27 Am. Dec. 104; Dayton v. Carter, 206 Pa. 491, 56 Atl. 30.

33 In re African M. E. Union Church, 28 Pa. Super. Ct. 193.

34 Jones v. Sacramento Avenue M. E. Church, 198 Ill. 626, 64 N. E. 1018.

35 Christ Church v. Pope, 74 Mass. (8 Gray) 140.

37

36

exceeded his authority, or whose result was not properly registered or properly certified,38 or whose result was not affected by the illegal votes, have been upheld by the courts.

39

Nor does the number of votes cast at such an electon as compared with the number of persons entitled to vote make any difference. The number of votes cast is to be considered "as constituting the number of legal voters belonging to the church." 40 This principle is strikingly illustrated in a series of cases growing out of the dissension which rent the United Brethren in Christ in twain during the last decade of the last century. The question of adopting a new constitution had been submitted to the 200,000 odd numbers of the church, but little more than 50,000 voted on the proposition at all. An overwhelming majority of the votes cast being in favor of the new constitution, it was declared adopted by the church authorities, which declaration was seconded, with one exception, by the numerous civil courts to which appeal was made by the dissatisfied minority." It has therefore been said that in all elections the non-voting must be counted as willing to be bound by the action of the majority of those who vote and that a refusal to vote is "an ineffectual kind of opposition." 42 However, even if the election has been very irregular,

36 People ex rel Blomquist v. Nappa, 80 Mich. 484, 45 N. W. 355.

37 In re Buffalo First Presbyterian Church, 106 N. Y. 251, 12 N. E. 626, 8 N. Y. St. Rep 679.

38 People ex rel Smith v. Peck, 11 Wend. 605 (N. Y.)

39 First Parish in Sudburry v. Stearns, 38 Mass (21 Pick) 148; People ex rel Lanchantin v. Lacoste, 37 N. Y. 192; People ex rel Hart v. Phillips, 1 Denio 388; Craig v. First Presbyterian Church, 88 Pa. St. 42, 32 Am. Rep. 417; Commonwealth v. Morrison, 13 Phila. 135, 6 Wkly Notes Cas. 346; People v. Tuthill, 31 N. Y. 550.

40 Lamb v. Cain, 129 Ind. 486, 516, 29 N. E. 13, 14 L. R. A. 518.

41 Brundage v. Deardorf, 55 Fed. 839 s. c., 92 Fed. 214, 34 C. C. A. 304; Horsman v. Allen, 129 Cal. 131, 61 Pac. 796; Kuns v. Robertson, 154 Ill. 394, 40 N. E. 343; Lamb v. Cain, 129 Ind. 486, 14 L. R. A. 518, 29 N. E. 13; Russie v. Brazzell, 128 Mo. 93, 49 Am. St. Rep. 542, 30 S. W. 526; Rike v. Floyd, 6 Ohio C. C. 80, affirmed 53 Ohio St. 653, 44 N. E. 1136; Philomath College v. Wyatt, 27 Ore. 390. 31 Pac. 206, 37 Pac. 1022, 26 L. R. A. 68; Schlichter v. Keiter, 156 Pa. St. 119, 27 Atl. 45, 22 L. R. A. 161; Itter v. Howe, 23 Ont. App. Rep. 256 contra; Bear v. Heasley, 98 Mich. 279, 57 N. W. 270, 24 L. R. A. 615.

42 Schlichter v. Keiter, 156 Pa. St. 119, 145.

this fact will not necessarily affect the de facto as distinguished from the de jure status of the officers. Provided that he is not a mere intruder without color of right 13 whose claims have been resisted from the beginning and whose possession of the church property has been obtained by force he will be considered and treated as a de facto officer possessed of all the powers of a de jure officer. "Persons who are in the open and peaceable exercise of the powers and duties of officers in a corporation are presumed to have been duly elected and to be entitled to the positions they occupy. Strangers cannot be permitted to contest their title or to impeach the validity of their acts, by showing irregularities in their election or in any of the antecedent proceedings of the corporation." 5 While therefore it is not enough that the claimant claims that he is an officer, or that some people think that he is an officer, or that he assumes to act as such, it is sufficient if he acts as an officer under color of having been rightfully elected or appointed. Persons may therefore be de facto officers though they are chosen on a movable instead of a fixed date," or under an illegal by-law, or at a meeting not properly noticed," or fraudulently conducted,5o or improperly presided over,51 or though they are merely hold-over officers 52 or have been appointed by a court instead of being elected by the congregation.53 Such persons may establish

46

43 Zion M. E. Church v. Hillery, 51 Cal. 155; Berriam v. New York Methodist Society, 4 Abb. Pr. 424 (N. Y.)

44 Reformed Methodist Society v. Draper, 97 Mass. 349, 353.

45 Reformed Methodist Society v. Draper, 37 Mass. 349, 352.

40 East Norway Lake Norwegian Ev. Luth. Church v. Halvorson, 42 Minn. 503, 506, 44 N. W. 663, 665.

47 People v. Runkel, 9 Johns 147 (N. Y.)

48 St. Luke's Church v. Mathews, 4 S. C. Eq. (4 Desaus) 578.

49 Green v. Cady, 9 Wend. 414; First Presbyterian Society v. Langley, 25 Ohio St. 128; West Koshkonong Congregation v. Ottesen, 80

Wis. 62, 49 N. W. 24; Reformed
Methodist Society v. Draper, 97
Mass. 349.

50 All Saints Church v. Lovett, 1 N. Y. Super. (1 Hall) 191.

51 Vernon Society v. Hills, 6 Cow. 23; All Saints Church v. Lovett, 1 N. Y. Super. (1 Hall) 191.

52 Reformed Dutch Church of Prattsville v. Brandow, 52 Barb. 228. In this case there had been no election for nine years. See Congregational Society of Bethany v. Sperry, 10 Conn. 200; Hendrickson v. Decow, 1 N. J. Eq. 577; People v. Runkel, 9 Johns 147.

53 Lovett V. German Reformed Church, 12 Barb. 67.

57

58

their de facto status by parol evidence,5* may accept service for the corporation," bind it by contracts and begin suit for it. They have the power to pass on their office unimpaired to their de jure successors and cannot be dispossessed of it except by such successors duly qualified" or by the state in a direct action to try their right to hold the office."

60

Passing now to the duties of church officers these duties which refer to the church property naturally receive the greatest attention by the courts. It is fundamental and elementary that church trustees are entrusted with the care, management and in many cases with the legal title of the church property. When the church is unincorporated the real estate which it may have an interest in of necessity must be held by some person or persons in trust for it. The same holds good in States in which the trustees are the only members of church corporations. In such States they are "the legal owners of the property which the act of incorporation authorizes them to hold, to be used for the purposes specified in the charter. They are the sole temporal administrators, and cannot be controlled, by the clergy in their administration. They are responsible to the congregation only, who may choose others, if those in authority shall misuse or abuse the powers conferred by the legislature.""61 But their situation is not greatly different so far as possession of the church property is concerned in states in which the aggregate theory of such corporations has supplanted the trustee theory. "There

54 Walrath v. Campbell, 28 Mich. 111.

8

55 Berriam v. New York Methodist Society, 4 Abb. Pr. 424 (N. Y.) 56 Batterson V. Thompson, Phila. 251, 1 Leg. Gaz. R. 171. 57 Zion's Church v. Light, 7 Pa. Super. Ct. 223, 42 W. N. C. 251.

58 Smith v. Erb, 4 Gill 437 (Md.) 59 Appeal of Nolde, 2 Monag. 169 (Pa.), 15 Atl. 777, affirming 4 Lanc Law Rev. 347.

60 Jackson v. Nestles, 3 Johns

115; Berriam v. New York Methodist Society, 4 Abb. Pr. 424; Concord Society of Strykersville v. Stanton, 38 Hun. 1; Zion's Church v. Light, 7 Pa. Super. Ct. 223, 42 W. N. C. 251. See Connitt v. Reformed Protestant Dutch Church, 54 N. Y. 551, 568, affirming 4 Lans. 339.

61 Church of St. Francis of Pointe Coupee v. Martin, 43 La. (4 Rob.) 62, 67, 68.