
    The People ex rel. Charles E. Fleming et al., Trustees, Resp’ts, v. A. Bloomer Hart, Rector, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 6, 1891.)
    
    Religious corporations—Election—Mandamus—Referee to supervise.
    Where, at an annual election in an Episcopal Church, seven of the ten candidates voted for were wrongfully declared elected by_ the rector, he-having rejected sufficient legal votes offered for the opposing candidates to have changed the result, and the said seven persons are afterwards ousted from office by a judgment in quo warranto, ■Meld that the judgment of ouster did not destroy the election itself nor the title of the other three; that it created seven “vacancies” in the offices, within the meaning of the aforesaid statute, requiring the trustees of the church “ whenever any vacancy shall happen, * * * by death or otherwise, * * * to appoint a time for holding an election to supply such vacancy;” that it was the duty of the rector to join with the three remaining trustees in making a call for a special election, although they did not constitute a board competent to transact business; that the rector having refused, a mandamus would lie to compel him so to join in holding the special election; and that under the facts shown, the court properly _ appointed a referee to supervise<the special election to be held, and that it had power to make such appointment.
    Appeal from order and mandamus requiring the defendant, as-rector, to join with the three relators, the other trustees,- in holding a special election to fill seven vacancies in the offices of warden and vestrymen of St Stephen’s Protestant Episcopal Church, and appointing a referee to supervise and superintend the election.
    
      Daniel Gr. Hollins, William H. Hamilton and David Bennett King, for resp’ts; Wager Swayne, Charles Blandy and Andrew J. Shipman, for app’lt.
   Daly, Ch. J.

This is an appeal by the defendant, A. Bloomer Hart, rector of the Protestant Episcopal Church of St. Stephen in the city of New York, from an order of the special term of this court made upon the petition of Charles E. Fleming, church warden, and William F. Watson and Charles Shroeder, vestrymen, corporators and trustees of said church, directing that a writ of mandamus issue to the said rector requiring him to join with the said relators in holding a special election to supply vacancies in the vestry of said church caused by the ousting from office of Stephen R Weeks, as churchwarden, and Thomas F. Cock, Edwin K. Linen, S. Montgomery Pike, Edmund Luis Mooney, Henry W. Mooney and William Gr. Smith, as vestrymen of said church, by a judgment of this court in an action in the nature of quo warranto brought on behalf of the People of the state by the attorney general. The order for the mandamus appointed a time and place for the holding of such election, and directed that it should be held under the supervision of a referee named by the court. From the whole of the order and the writ of mandamus issued in conformity therewith the defendant, as rector of said church, appeals.

It appears that a regular election for church wardens and vestrymen was held in the said church at Easter, 1890, and the defendant, who presided as rector, announced and certified in the usual course that the last named persons, together with these relators, were duly elected, Weeks and Fleming, church wardens; and Cock, Linen, Pike, E. L. Mooney, H. W. Mooney, Smith, Watson and Shroeder, vestrymen. There had been much dissension in the corporation before this election was held, growing out of the action of the former vestry at a special meeting in February, 1890, in voting to consolidate the church with the Protestant Episcopal Church of the Holy Trinity in the same city ; and the rector had refused to give notice of an Easter election in 1890 in view of said vote and the agreement of consolidation entered into in pursuance thereof; but a mandamus to him having been issued by the supreme court requiring a notice of the election to be given and the election to be held, he obeyed the writ and held the election; at which he presided, and the result of which he declared as above mentioned. Subsequently the action of the attorney general referred to was instituted, which resulted in ousting Weeks as church warden, and all the vestrymen except Watson and Shroeder.

Among the officers so ousted were five members of the former vestry who were in office as vestrymen at the time of the said election, viz.: Weeks, Cock, Linen, Pike and E. L. Mooney, and they, deeming that the judgment which ousted them established the invalidity of that election, and there were no successors to the former vestry chosen thereat, claimed to hold over under the statute; and upon their relation the attorney general commenced an action in the supreme court against these relators as defendants, together with the remaining members of the former vestry not joined as relators. The complaint in that action set' forth the election of church wardens and vestrymen at the annual election of 1889, and claimed that no person had at any time since been chosen or elected in their stead, and that these relators, Fleming, Watson and Shroeder, wrongfully claimed and asserted that they had been elected at the election of 1890, and were usurping the offices of church warden and vestrymen, and demanded judgment ousting them from such office and adjudging the former vestry entitled to the offices by virtue of the election of May, 1889. That action was tried and resulted in a judgment in favor of these relators, Fleming, Watson and Shroeder, dismissing the complaint upon the merits. Such judgment was rendered after the making of the order now appealed from, but the action was commenced while the application of these relators for this mandamus was pending.

The judgments establish, as between the relators here who were elected in 1890 and all other persons claiming to have been elected with them at such election, or claiming to hold over for want of a valid election in 1890 :

First. That these relators are lawfully in office-pursuant to said election, and lawfully exercising the powers of trustees of said church.

Second. That the other persons claiming to have been-elected at the time have no title to office as church warden or vestrymen.

Third. That the former vestry elected in 1889 does not hold over, and that these relators were chosen in their stead.

The judgments are not, in one sense, conclusive upon the defendant here, the rector of the church, because he was not a party to the actions in which they were rendered and could not properly be made a party thereto, such actions being brought to try the title of the claimants, who were made defendants therein. But inasmuch as the only way in which the title of rival claimants to said offices could be determined was in such actions the judgment therein is conclusive upon all other persons who do not claim the same office, but who might urge a doubt or question as to the title of such claimants where such doubt or question would affect the relief demanded against them in any collateral proceedings to-which they and such claimants were parties. Such doubt or question is raised in this proceeding for a mandamus against the rector on the relation of these trustees for the holding of the special election. He objects that there is doubt of their title, and claims that to be a sufficient defense to the application for a mandamus. People v. Stevens, 5 Hill, 616. But, if the title of the relators has been established in a direct proceeding to test it, brought by rival claimants, or against them, the objection is answered, and the judgment in such proceeding is conclusive until reversed.

This is the present case, and the adjudications which the relators invoke must not only dispose of the defense that there are rival claimants to the office, but necessarily answer all objections assailing the title of the relators to the office of trustees of the church, and that any other person or persons whomsoever have any right to such offices, dr to exercise the power of church warden and vestrymen, as holding over or otherwise; and, finally, must dispose of the objection that ño vacancy now exists to be filled by a special election. For the contention of the defendant is, that there is no vacancy; that there was a failure to elect any trustees at the election of 1890, or a failure to choose a sufficient number to transact business, which, it is claimed, amounts to the same thing as a failure to elect any, Matter of Union Insurance Co., 22 Wend., 591; and that, therefore, the former vestry holds over and all the offices are filled. Laws of 1813, chap. 60, § 1; Laws of 1884, chap. 158. The contention being that there is no vacancy because the old board holds over, a judgment against the members of the old board that they do not hold over establishes that a vacancy exists; and the number of vacancies is fixed by the one judgment which ousts seven of the trustees, and by the other judgment confirming the right of the three remaining trustees to' hold the office.

.But, if there were no such conclusive adjudications as to title between the rival claimants to the office, it would seem clear that a vacancy was created when the seven persons elected in 1890 were subsequently ousted from office. There was an election regularly held at the church at Easter, 1890, and two church wardens and eight vestrymen were duly declared and certified elected. There was, therefore, a de facto board, competent to discharge the duties of trustees. All the offices were filled by successors chosen in the stead of the former vestrymen, and the latter could not hold over. Were it not for the judgment in quo warranto, all the members of 'the new board would have continued to serve, and the offices would have been filled. That judgment ousted certain of the persons declared so elected, but not all, and there were left remaining de facto trustees in office, with vacancies created by the' judgment, and not existing before it. The case differs from the Matter of the Union Insurance Co., 22 Wend., 591, where it was suggested that if less than the number of trustees competent to convene as a board and transact business had been chosen, “ it might be that the whole election would have been void, as there would not have been a sufficient number of the directors chosen to constitute a board,” because in this case a full board had been voted for by the church and declared elected, and a majority had afterwards been displaced. The vacancies caused by such displacement must be filled by a new election, the same as if such vacancies had been caused by the resignation or death of a majority of the board. This is substantially the view taken by the supreme court in affirming the judgment above referred to. People ex rel. Cock v. Fleming, N. Y. Law Journal, March 18, 1891.

This last consideration disposes of all that is argued against the power of the three remaining trustees to appoint a time for holding a special election to fill the vacancies, whether such objections are based upon the want of power to convene as a board, there not being a quorum (a majority of the whole number of vestrymen, viz., five being required to transact business), or upon the informality of the proceedings of the three trustees in calling such election, and requesting the rector to unite with them.

If a majority of the trustees had resigned or died, the minority would be bound to proceed forthwith and call a special election to fill their places, for the law will not tolerate inaction or delay in that respect, which virtually suspend the functions of the corporation and embarrass it and all persons dealing with it. If the trustees, because too few in number, cannot convene as a board nor hold a meeting, then they must unite as individuals to perform the duties devolving upon them. It is “ trustees ” and not as a “ board ” they are to call such an election. "Act of 1813, chap. 60, § 1. It is conceded by the defendant that the relators Fleming and Watson .called upon him personally and requested him to unite with them in signing a resolution appointing a time for holding a special election to fill the existing vacancies, and that he refused, restating certain reasons he had given in the vestry room the evening before at the time appointed for a meeting in a notice from the trustees, which had been previously served upon him. These reasons were: First. That the relators had no legal standing as a vestry. Second. The notice or call for a meeting was not sufficient. Third. That there was not a quorum present. Fourth. That the vestry had not power to call such a special election as was mentioned in the notice or call for a meeting.

Those objections went to the power of the remaining trustees to take any action whatever to fill vacancies, and not to the time appointed for the meeting or for the election, or to any matter of propriety or convenience as to which his wishes should be regarded or his discretion exercised. It was c. refusal which left the trustees no recourse, except a resort to the remedy by mandamus which they have taken. The objection that the relator Shroeder did not make the request of the rector is not good, as he joins as relator in this proceeding.

There remains to be considered but one question: The appointment of a referee to supervise and superintend the election “ and .see that said election is fairly held and conducted in all respects in accordance with the law, with power to administer oaths to and examine persons offering to vote at said election, and to adjourn the said election at any stage of the same to a time to be specified and announced by him if in his discretion such adjournment shall be needful, expedient and just; and that the said rector, if present at the said election, act in all things under the supervision and superintendence of said referee.” Under ordinary circumstances there could be no question that a rector should be left to preside and conduct a special election, but the facts of this case are peculiar, and the court at special term doubtless considered that in •appointing the referee for the purpose aforesaid it was giving the rector, who was likely to be much more embarrassed between the orders of the court and a sense of duty which might interfere with the fullest compliance therewith, a relief which he would greatly appreciate. Certain trustees whom he declared elected at the last election were ousted because of his refusal to receive the votes of certain duly qualified voters, and now, after the verdict of the jury and the judgment of the court that such votes should have been received, he solemnly states under oath in his answer to this application for a mandamus, “ I received only those votes which I conscientiously believed and still believe should have been received, and refused to receive only the votes of those whom I conscientiously believed and still believe were not entitled to vote.”

The power of the court to appoint a referee to take charge of the election is undoubted.. Matter of McGuire, 50 Hun, 203; 19 N. Y. State Rep., 431; Kniskern v. Lutheran Churches, 1 Sandf. Ch., 537, 561. The rector, as presiding and returning officer, has only ministerial duties to perform, and so with. the referee. McCray on Elections, § 229; People v. Supervisors of Wayne, 12 Abb. N. C., 77; People v. Bell, 27 N. Y. State Rep., 39, 490.

The order and mandamus should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.  