
    The Commonwealth against Cain and others.
    
      Monday, March 27.
    Where the church authorised the making of by laws requisite government of the church, and directed that the elections of ministers, &c., should be conducted agreeably to certain rules, one of which was, that no person was to have a vote except those who had been regularly admitted, and should have been members of the church twelve months preceeding the election, held that no member of the pew rent was longer time a than two not be entitled to vote for officers, was valid.
    Quo Warranto.
    THIS cause came before the Court on a motion for a rule on the defendants, to shew cause why an information in natur£ a Warranto should not be filed against them for usurping the office of vestrymen of “ St. Thomas’s African Episcopal Church of PhiladelphiaBy agreement of parties, the controversy was reduced to a single question, whether a bye-law made on the 3d April, 1819, was valid, by which it was enacted, that no member of this church whose pew rent was in arrear for a longer time than two years should be entitled to vote at any election of officers of the said church. '
    By the 5th section of the act of incorporation, the minister, church wardens, and vestrymen, are authorised to make rules, by-laws aDd ordinances, and to transact every thing requisite for the good government and support of the church. But the defendants relied on the 2d section, by which it was provided, that the election of the minister, churchwardens, ant^ vestrymen, should be conducted agreeably to certain artides or rules by the members of that church made and entered into on the 12th day of July, in the year of our Lord, 1794. The 3d of these articles or rules was, that “ the mode of choosing officers for the church shall be by ballot; no Person to bave a vote except those who have been regularly admitted, and shall have been members of the church twelve months preceding the election.”
    
      Rawle and Ingersoll, for the Commonwealth.
    The power of a corporation to pass by-laws, is derived from its charter: and it is not permitted to make ordinances abridging the rights of electors as conferred by that instrument. The articles or rules made on the 12th July, 1794, must be considered as much a part of the charter, as if contained in it: and the third of those articles, though it uses negative words, in effect confers the right of electing the church wardens and ministers, on all who have been regu* regularly admitted, and were members of the church twelve months preceding the election : and this right cannot be di' vested by a by-law. A by-law cannot impose a qualification inconsistent with the charter. 2 Kyd on Corp. 26. 30. cites 4 Co. 78. In corporations by charter, the time and manner of election, and the qualifications both of the electors and of the persons capable of being elected, depend on the provisions of the charter. Kyd 2. 20. By the Stat. 5 Eliz. c. 4, no person was permitted to use a trade who had not served a seven years apprenticeship; a by-law excluding such person from exercising his trade, without a custom to support it, is void. 2 Kyd, 130, 131. It has been held a sufficient cause to remove a man from the place of alderman, that he is poor and cannot pay the taxes, though such a cause would not be sufficient to deprive a man of his freedom. 2 Kyd, 65. 3 Salk. 229. In Rex v. The Mayor, &c. of Liverpool,
      
       it is declared by Lord Mansfield, that a man’s being a bankrupt, is no objection to his continuing a corporator: so it is said by Wilmot J., in the same case, that insolvency is no offence in a corporator. Pew rent is in the nature of a tax. It is not necessary to disfranchise the members who do not pay it, in order to secure its collection, as it may be recovered by action. Great hardships and injustice would ensue from establishing such a right to disfranchise. The rich might oppress the poor: and those who had subscribed to the building of the church, may become impoverished and unable to pay punctually their annual stipend, and shus by the operation of this by-law, be excluded from the rights of membership.
    
      Peters and Binney, contra.
    This corporation has power by its charter to make such by-laws as are requisite for the good government and support of the church. The church could not be supported without the payment of pew rent: and the measure adopted in the by-law is the most effectual mode of procuring such payment, and most beneficial for the corporation; as it could not be otherwise obtained, without the expense and trouble of law suits. It not only promotes the interest of the society, but also tends to preserve peace and harmony amongst its members: it does not disfranchise any member: for on paying up the arrears, the privilege of voting is restored. It is unreasonable that those who pay nothing should enj0y a participation in the choice of officers. A by-law, sillar in principle to the present, has existed in this church from the beginning. It is not inconsistent with the laws of the land or the charter. The third article, with which the by-law is said to be inconsistent, confers no positive privilege : but contains merely a negative provision, that no person shall vote, who has not been reguarly admitted, and has not been a member twelve months prior to the election. It does not prohibit or interfere with further restrictions which may become necessary to the good government and support of the church. Corporations have an inherent power with respect to the regulation of their own concerns ; and these may be regulated by by-laws, provided they are consistent with their constitution. 2 Kyd, 20. Under this provision, a by-law restraining the number of electors may be good, if it does not strike off an integral part of the electors, nor transfer the right of election from the body at large, to a select number, independent of that’body. 2 Kyd, 26. “ The true test of all by-laws,” says Wilmot J., in 3 Burr. 1838, is the intention of the Crown in granting the charter, and the apparent good of the corporation. And upon this principle stands the power of controlling by a by-law, the words of a charter as far as relates to the distinction between narrowing the number of those out of whom the election is to be made. A by-law may restrain the number of the electors; but it cannot narrow the objects of election.” So also where the law of the land throws a burthen on the particular society of which a man is a member, a by-law assessing a sum on the individuals for discharging the burthen is good. 2 Kyd, 110. It may regulate in a reasonable manner, the exercise of a right: but it cannot take away a right, or impose any unreasonable restraint on the exercise of it. Ib. 122. The suspension of the privilege of voting for officers until the arrears of pew rent are paid up, is no more than a reasonable regulation, which the interest and maintenance of the church require.
    
      
      
         2 Burr. 734.
    
   The opinion of the Court was delivered by

Tilghman C. J.

The third rule made on the 12th July^ 1784, is to be considered as part of the act of incorporation, just as if it had been actually inserted in it; and if the bylaw in question can, by fair agreement, be made out to be in contradiction-to it, its validity cannot be supported.— There is no express contradiction betweeu the rule and the by-law. The rule declares, that no person shall vote, who has not been a member of the church twelve months preceding the election — the by-law does not say that he shall — but only, that although he has been a member twelve months preceding the election, he shall not vote, if his pew rent be more than two years in arrears. By-laws for the good of the corporation, have been held to be valid, although they reduced the number of the electors to narrower bounds', than were marked out by the charter. A leading case on this subject, is The case of corporations,” decided in the 40, and 41. Elizabeth, 4. Co. 78. Several towns had been incorporated by charter, which directed the election of mayor, bailiff, aldermen, &c., to be by the commonalty or burgesses, generally — but, by long continued usage, those elections had been made by a select number of the principal persons of the commonalty or burgesses, and not by the commonalty or burgesses at large. And it was decided, after great deliberation and conference among all the Judges, that the said elections were well warranted by the charters, and by-law, because the regulation under which they were made, tended to prevent disorder and confusion, and was therefore for the good of the corporation. That decision has been held for law in England, from the reign of Elizabeth to the present day — and the principle established by it, is much stronger than that which is necessary for the support of the by-law now under consideration. In the present case, no person is excluded from voting, unless he is in default, in a matter essential to the support of the church ; and he may reinstate himself in his privilege by paying his debt. Nothing is more manifestly for the good of the church than this by-law. Without funds the church cannot exist, and it will be torn to pieces by dissension, if the funds are to be collected by suits at law against those who are in arrears. So that this rule is calculated to support the corporation, and preserve harmony among its members. It is hardly possible that oppression should be practised. The vestrymen are elected annually, and the by-law may be altered or repealed at any time. There is strong- evidence of the convenience of such a regulation ; because this church has had one of the same nature, under different modifications, ever since the year 1800. Inasmuch then as this by-law is reasonable, for the good of the church, and not contradictory to the act of incorporation, I am of opinion that it is valid.

Rule discharged.  