
    The People ex rel. Thomas F. Cock et al., App’lts, v. Charles E. Fleming, Charles Sohroeder and William S. Watson et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    1. Religious corporations—Election.
    Where the full number of trustees of a religious corporation is voted for at anfannual election, those declared elected become the successors of the old board, and there is no such “omission or neglect to choose any of the trustees ” as will authorize the old board to hold over, although a'majority of the new board may be afterwards ousted or removed.
    ■ 2. Same—Effect of judgment of ouster.
    The effect of such judgment of ouster is merely to create vacancies within the meaning of Laws 1813, chap. 60, § 1, providing for an election to fill vacancies.
    Appeal from a judgment entered upon verdict directed in favor of defendants, and from an order denying a motion for a new trial.
    
      Wager Swayne, for app’lts; William H. Hamilton, for resp’ts.
   O’Brien, J.

This is an action in the nature of a quo warranto and was brought by the attorney -general in the name of the People on the relation of plaintiffs to oust the defendant Fleming from the office of warden of the Church of St. Stephen and the defendants Schroeder and Watson from the offices of vestrymen of said church.

The record presents the following undisputed facts:

The rector, church wardens and vestrymen of the Protestant Episcopal church of- St. Stephen is a religious corporation, organized under the laws of 1813, chapter 60, § 1. The number of wardens is fixed by its certificate of incorporation and its by-laws at two, and the number of its vestrymen at eight, and these ten persons with the rector form the vestry of said corporation.

The defendants claim title to their office by virtue of an election held on April 7, 1890. On such date the stated annual election of the corporation was held and the defendants with seven other persons were declared elected to the offices of wardens and vestrymen. On the 10th day of April, 1890, an action in the nature of a quo warranto was brought in the court of common pleas against the seven persons, who with the defendants had been so declared elected, and in that action judgment was rendered ousting the said seven persons from office. These defendants were not parties to that action, but thereafter this action was brought for the purpose stated.

The plaintiffs admit that at the stated annual election, held on April 7, 1890, the defendants received a certificate of their election, but contend that they have never become the legal officers of the corporation or entitled to act as such because of an omission or neglect at said election to elect one other warden and six other vestrymen; that by such omission or neglect the church wardens and vestrymen in office at the time of such omission held over and are to be deemed the legal officers of such church and continue to hold their offices until others are chosen in their stead. This contention is based upon the Laws of 1813, chap. 60, § 1, "which provides “that church wardens and vestrymen to be chosen at any of the said elections shall hold their offices until the expiration of the year for which they shall be chosen and until others be chosen in their stead,” and Laws of 1844, chap. 158, § 3, which provides: “Whenever there shall have been any omission or neglect of any church, congregation or religious society, at their stated annual meeting, to choose any of the trustees, church wardens, vestrymen or other officers, such church, congregation or religious society shall not be deemed or taken to have been dissolved, but the trustees, church wardens, vestrymen or other officers in office at the time of such omission shall be deemed and taken to be the legal officers of such church, congregation or society and shall continue to hold their offices until others be chosen in their stead.”

It having been adjudged that seven of the persons declared elected on the 7th day of April, 1890, were not -legally elected, the elaim is that the former wardens and vestrymen hold over by force of these statutes.

It is conceded that the defendants here were legally chosen at the election of 1890, but it is asserted that they were not elected in the stead of the ten persons formerly in office so as to terminate the rights of the former incumbents “to hold their office until others be chosen in their stead,” under the provisions of the acts cited.

At the outset a serious question is presented as to the right of the relators to question the title of the respondents. They participated without objection in the election of 1890. They were candidates at such election and voted thereat They actively participated with the rector in rejecting nine votes that were offered against them and for their competitors, four of whom were subsequently declared to have been elected. With knowledge of the facts the relators accepted the certificates of their election, accepted the offices under such certificates, went into possession and until ousted by the judgment of a court of competent jurisdiction assumed to discharge all of their duties and functions.

In the suit brought against them they persisted in claiming title under this very election and still persist by an appeal taken from the judgment of ouster.

Upon a state of facts in many respects similar to those now presented, the Maryland court of appeals in the case of Handy v. Hopkins, 59 Maryland, 157, held that the appellants who had claimed title under the election held in 1881, which was declared null and void, were not in a position thereafter to assert that they claimed title by virtue of a hold over.

This case is instructive not only upon this question, but as bearing upon the effect of the judgment of the court of common pleas in ousting the seven officers of St. Stephen’s who were elected together with the defendants at the election in 1890. It is an argument in favor of respondents’ position that the effect of selecting officers at an election subsequently declared to be null and void and who were thereby removed created “ vacancies ” in such offices.

In the course of the opinion we find this language: “ The election of 1881 was not in effect null and void until declared so by the judgment of a competent tribunal. It was in all respects good and valid until declared otherwise ; and the appellants were fully authorized to act in the discharge of the duties of their offices, and all their official acts are as valid as if the election had been declared in all respects legal.

“ They had not only the color of a due election but they had all the forms necessary to invest them with full authority of the offices, and these they accepted and complied with as an intention to hold under the last election and none other. But from the moment that the election was declared null and void, the power and authority with which they were invested by virtue of that election ceased and the offices then became vacant.”

We shall assume however, without deciding the question, that the appellants are not estopped from denying the title of the respondents ; and will therefore pass to a consideration of the real question in the case, as to whether or not successors to the relators and the other members of the old board were elected the 7th day of April, 1890. It is conceded that the full board of officers required to be elected were voted for on the 7th day of April, 1890; that they were declared elected by the proper officers; that they all accepted and went into office under that election; that certificates of their election were made out and entered in a book of the minutes of the vestry, and that they continued to occupy the offices from April 7th until June 21,1890. ¡Notwithstanding these facts the claim is advanced that the effect of the judgment of ouster of the seven other officers destroyed the title to the offices held by the three defendants here, who were legally elected and whose status is in no other way questioned. In other words, it is insisted that the removal of the seven constitutes an “omission or neglect ” of the church to choose its officers, and therefore ■ . under the Laws of 1844, above quoted, the former incumbents held over to the exclusion of the defendants. This contention is sought to be strengthened by the argument that if the three defendants were elected in the stead of the former vestry, they are not competent to transact. the business of the corporation for the reason that they are not numerically sufficient to constitute a board for the transaction of business, nor are they, for the same reason, in a position, if the judgment of ouster of the seven others be construed as creating vacancies in these offices, competent or empowered to fill the same. Laws of 1813, chap. 60, § 1. The Laws of 1844 employ the language that “ whenever there shall have been any omission or neglect * * * to choose any of the trustees * * * the trustees, etc., * * * shall continue to hold their offices until others be chosen in their stead.”

In People v. Van Horne, 18 Wend., 515, in construing a similar statute, the court defines the term “neglect,” as used by the legislature as synonomous with omit,” or to leave an act undone. Here there was no omission or neglect to hold an election or choose officers. The stated usual election was held, a full board was declared elected, and this board continued in office for two months and a half, when seven of its members were ousted or removed, leaving the defendants in office.

In our view the Law of 1844, chap. 158, can have no application to a state of facts such as here presented. It provides for a case where there is an omission or neglect to hold an election or choose officers, and cannot be construed as meaning that upon a vacancy being created or the title being destroyed of any offices by judgment or otherwise, that then the titles of all the others to their respective offices shall ipso facto also be destroyed.

This view is supported by the provisions of the law of 1813, which prescribes that “whenever any vacancies shall happen * * * ” by death or otherwise, the said trustees shall appoint a time for holding an election to supply such vacancy. It is further strengthened by recalling what the statute was intended to prevent, viz.: the dissolution of the corporation by an omission to i elect officers. ¡No dissolution would result by an omission to elect ■ all as distinguished from some of the officers.

It may be true, as claimed, that by the subsequent provision of the section just quoted the remaining officers or trustees, not being sufficient in number to constitute a quorum, cannot fill the vacancies thus created.

In our judgment, however, a distinction exists between the right of persons to hold office and their power to do certain acts which by statute or the by-laws of a corporation can only be done by a board ór a quorum thereof. The courts have in several instances set aside the election of a majority of directors and trustees of •corporations, leaving only a minority m office, and directed the vacancies to be filled by an election.

In Ex parte Desdoity, 1 Wend., 98, the election of thirteen trustees was set aside, and that of the remaining four declared valid. In Vandenburgh v. The Broadway R. R. Co., 29 Hun, 348, it was held that any number of persons who might receive a majority of the lawful votes were elected, although, there was a failure to elect the full number required by law.

In the Matter of the Union Ins. Co., 22 Wend., 591, twenty-two instead of twenty-three directors were elected. The old board thought the election for that reason had wholly failed, and claimed the right to hold over, and order a new election. This election was held, and twenty-three were chosen. On motion the election of the twenty-three was set aside, and the election of the twenty-two declared valid, and an election for one to fill the vacancy was ordered. In this latter case it is true, which gives some strength to the appellants’ argument, is a dictum to the effect: “ That if less than twelve, the majority number of twenty-three, had received a plurality of votes, it may be that the whole election would have been void.”

It will be noticed that this dictum does not go to the extent of saying that the election would have been void, and yet this is the only authority referred to in which any such intimation is given. On the other hand, in addition to the authorities cited, we find in The Matter of L. I. R. R. Co., 19 Wend., 37, a dictum directly •contrary. But it is unnecessary to examine all the arguments advanced to support appellants’ contention, for after all the question is reduced to a narrow compass, and relates entirely to the construction to be given to the words “ neglect ” and “ omission,” as used in the Laws of 1844.

In our judgment successors to the relators and the other members of the old board were selected in April, 1890, and no omission or neglect to choose officers occurred, such as would entitle the old officers to “ hold over.” The new officers were fully authorized to act and discharge their duties as they did for a period of two months or more. The result of the judgment of ouster of the seven others elected with them was to create vacancies and cannot be held to have destroyed the title to the offices to which the respondents were duly elected. This conclusion consonant with law seems to us to be founded upon reason and justice. To uphold the relators’ position would be in effect to determine that these defendants, who were regularly chosen at an election held at a time and place fixed by the statute, articles of incorporation, by-laws and invariable usage of the church, the notice for which was given under the direction of the court, and at which election all the votes cast including the relators’ were for the defendants, and whose title to office was thereafter recognized, should be ousted and excluded from office because a judgment subsequently rendered removed the. relators themselves.

In our opinion the disposition made of this case by the trial court was proper and the judgment and order should be affirmed,, with costs and disbursements.

Van Brunt, P J., and Daniels, J., concur.  