143. Time, Place, Void.—Where a religious society that is incorporated holds an election for trustees, which is held at the wrong time or place, the election is void.255
144. Voting, Communicants, Attendance.—A by-law of a church that prohibited any person whose pew rent was in arrears more than two years from voting at a church meeting, is valid and reasonable.256 Where a charter of a religious society allowed only members being communicants to vote after they had attained the age of eighteen years, to entitle a member of the congregation to vote it was necessary that he should have taken the sacraments after the age of eighteen years.257 Where the right to vote was limited to members who contributed not less than ten shillings annually toward the support of the church, those who were challenged for want of complying with the rule [pg 089] can not do so after being challenged and then vote.258 Stated attendance at divine worship in the church, congregation, or society, and contribution to the support of such church, may be made the tests of the right of a person to be a voter at an election. The attendance of a wife or children of the family is not sufficient to confer the right to vote on the husband or father.259
145. Voters, Poll List.—Parol evidence is admissible to prove the number of persons entitled to vote in a church society, notwithstanding that there is a register of names of the stated hearers in such church kept by the clerk of the trustees.
146. Notice, Quorum, Majority, Strangers.—It is not necessary that a majority of the members of a religious society be present to constitute a corporate meeting. Those present at a regularly called meeting of which due notice has been given to all the members, constitute a quorum; and, in the absence of a rule to the contrary, a majority of the votes cast carries any question.260 The presence of strangers, unless they vote, will not vitiate the proceedings. If they should [pg 090] vote, unless their votes determine the election, it will not be void.261 The casting of a few illegal votes that would not change the result of the election does not make it void.262
147. Challenge, Ground.—The right of a person to vote at any meeting may be challenged. The proper time to challenge a voter is when he offers his vote. After his vote has been received it can not be thrown out on the ground that he was disqualified.263 A church election for which due notice has been given, that has been fairly conducted, and all the requirements of the statute or rules of the church complied with, is conclusive.264 Without due notice, all proceedings are void.265
148. By-Laws, Usage.—If there is no law of a religious society determining the mode of conducting an election, the corporation may provide by-laws therefor; and if the corporation should fail to make such by-laws, a long established usage will govern.266 Also, if the time an election is to be held is provided for, but the manner of conducting [pg 091] it is not, the meeting may be conducted according to established usage.267
149. Ballot, Hand Vote.—The vote of a religious society at an annual meeting for the election of officers that the officers shall always be chosen by ballot, does not vitiate an election of officers by hand vote at a subsequent annual meeting. But a provision in the constitution or by-laws requiring a ballot must be complied with.268
150. Hold Over, Successors.—When the election of the new trustees is invalid, the old trustees hold over until there will have been a valid election of their successors.269 But where a board that was illegally elected employed a minister who had no notice of such illegality, he was entitled to his compensation according to the contract.270
151. Majority, Votes Cast.—Where the majority of a congregation protested against the proposed candidate, but failed to vote for any one, such candidate who received the greatest number of votes cast, was lawfully elected.271
[pg 092]152. By-Law, Tickets.—When a by-law provides that “if besides the names there are other things upon the tickets, such tickets are not to be counted,” a ballot having an engraved eagle on it should be rejected.272 However, in a very recent case under a statute that specifically provided what should be printed on the general election ballot, and in addition thereto the Union Labor label was printed thereon, the court held that the statute should be strictly construed in favor of the voter and that the ticket should be counted.273
153. Charter, By-Laws.—The articles of organization or the charter which is the constitution of the corporation may provide who may be officers of a religious society and limit their authority. The constitution usually gives further authority to make by-laws which are binding on the officers as well as on the members.274
154. Unincorporated Church, Incorporated.—The officers of an unincorporated church can only be elected by the members of the church, unless there is some law of the State or rule of the church that provides for appointing them. In an incorporated congregation, the charter and by-laws of the corporation determine whether the officers shall be elected or appointed.275
155. Trustees, Control.—A statute passed in 1813 providing that a certificate of incorporation by the bishop, vicar-general, pastor of the church, and two others [pg 094] selected by them and their successors shall be a body corporate, does not constitute the trustees the corporation in place of the congregation so as to make the acts of a majority of the trustees binding on the corporation in the absence of proof of other authority.276 Under the statutes of Louisiana providing for the incorporation of congregations for the purpose of administration and revenues, it was held that the corporation had full control and was responsible to the congregation alone and could not be controled by the clergy. The congregation had the right to elect others in the places of those amoved by reason of their misuse or abuse of their powers.277 And in Massachusetts, under the law for incorporating Catholic parishes, no one but the trustees have any power.278
156. Membership, Office.—Where church membership is necessary to hold office in the church corporation, it is a binding condition precedent.279 An officer who withdraws or is expelled from a religious organization thereby terminates his office.280
[pg 095]157. Certificate of Election.—A certificate of election of officers is prima facie evidence thereof, but the truth may be shown aliunde and a wrong certificate may be cancelled by a judgment of a competent court on a writ of quo warranto or proceeding under a statute of the State. Also, if the certificate does not conform to the law, it is insufficient.281
158. Term, Successors, Contest.—Where there is no term of office fixed, the presumption is that an officer continues as such until proof to the contrary is established,282 or until his successor shall have been elected and shall have qualified.283 Also, the officers elected for a certain term can not be amoved by electing new officers before the end of the term.284 When officers or committees have been elected “for the ensuing year,” they shall hold office until superseded by their duly elected successors. Where two sets of officers were elected at a meeting of a religious corporation and the set that was elected according to the charter continued in office by appointment thereafter, it was [pg 096] too late for the irregularly elected officers to make a contest for the offices after the term for which they had been elected had expired.285
159. By-Laws, Preside.—At an election of trustees under by-laws that provide that certain officers shall preside, if there are no such officers members may be selected to preside in their places.286
160. Note, Overdraft, Interest.—The president and secretary of a church corporation have no authority to make a promissory note unless authorized by the board of trustees.287 Neither has the treasurer authority to make an overdraft on a bank with the action of the trustees.288 The trustees of a parish, however, may make a note binding the congregation for the payment of the money used in building a church.289 But when the trustees have an interest in the transaction, adverse to the congregation, they are disqualified from acting.290 When trustees had claims against the congregation which they included with other claims that [pg 097] third parties had against the church, they could not put them in a judgment note so as to get a lien upon the church property. When officers do not bind the congregation, they usually bind themselves.291 The trustees of an unincorporated church can not bind it beyond the expressed powers granted by the members.292
161. Board, Control.—When the laws of the organization give control of matters to the board of trustees, the majority of the members of the church can not control the action of the trustees contrary to the usages and regulations of the church.293
162. Treasurer, Accepting a Draft.—A parish treasurer has no authority under any condition to bind the corporation by accepting a draft in favor of a third person. A treasurer elected for the purpose of receiving and investing funds in his individual name, holds such funds as trustee for the church and is subject as such trustee to a court of equity. Persons claiming to be trustees of a church but never getting possession of their offices or the property of the church, can not maintain an action against [pg 098] other persons who are in possession and have been duly elected.294
163. Note, Trustees.—A church will not be bound by a note which was executed by two of its trustees and sent around to other trustees to sign it, where there was no vote of the board of trustees at an authorized meeting to borrow or to execute such note.295 A meeting of a board must be called as required by law or the by-laws of the organization, and in the absence of any such all members must be notified a reasonable time before the time fixed for holding the meeting. However, if all the trustees are present and agree to hold a meeting it is valid; but it would be well to put such consent in writing and have all the members sign it.296
164. Money, Powers.—The treasurer of a congregation has no right to return to members moving out of the parish a part of the money paid for the church by them.297 Officers of a corporation have no powers only those conferred upon them by the charter and by-laws of the corporation or by a majority vote of a duly called meeting of the congregation.298 When the trustees of a [pg 099] church are authorized to execute contracts for the church, they should act as a body or delegate the power to one of their number or ratify the acts of one of their number.299 The individual disjointed action of trustees of a religious society, at various times and places, although assented to by a majority, is not the action of the board, and is not binding on the society. To make the action of the board of trustees binding, they must duly meet and by a vote determine their action.300
165. De Facto Officers.—The acts of de facto officers can not usually be questioned in a collateral proceeding, such as to set aside a conveyance, when the merits of the question do not involve the election.301 Being elected does not alone make a person a de facto officer; but he must also be acting in the particular office to which he claims to have been elected.302 But one who has entered into a contract with the officers of a congregation is estopped from denying their authority to make such contract.303
[pg 100]166. Trustees, Thanks, Charge.—Where trustees have taken care of funds without charge, the only entry kept being a vote of thanks from time to time, they could not afterward charge a commission on the moneys handled by them for such services.304
167. Discretion, Excommunication.—A court has no authority to control the exercise of the judgment or discretion of the officers of a church in the management of its funds so long as they do not violate its constitution or by-laws.305 Excommunication does not always remove an officer of a church corporation.306 The legal rights of a bishop in regard to the temporalities of a church where they are not prescribed by civil law, must rest, if at all, upon the ecclesiastical law, which must be determined by evidence.307
168. Key, Possession, Right.—Having the key of a church, is prima facie evidence of possession, but the right of possession is a matter of proof.308
169. Church, Bishop, Debts, Salary of a Priest.—Where a church is not itself liable because it is not incorporated, the Roman Catholic bishop of the diocese is not personally [pg 101] liable for moneys borrowed by the pastors of such church in the name of the church, which were partly invested in real estate which was put in the bishop's name in the usual manner, although the bishop's permission was necessary before borrowing the money, and notwithstanding that the bishop raised some of the money to pay some of the debts and the mortgage on the real estate of the church on his personal security, and he received part of the borrowed funds from a dying pastor and handed it over to his successor.309 Also, a bishop is not personally liable for the salary of a priest whom he engages. They are fellow servants working for the Church and not in the relation of employer and employee any more than are a general and captain in the same army.310
170. Note, Building Committee.—In an action on a note given by the pastor of a church for money borrowed to pay bills for the erection of the church building, in which the plaintiff sought to charge the building committee, and it appeared from the plaintiff's testimony that the title to the property was in the bishop and the committee did not handle any of the funds, but was a shifting [pg 102] body to whom the pastor only went for advice and consultation, it was held that the plaintiff could not recover.311
171. Fraud, Trust.—Where a “prophet” induced members of his organization, by his fraud and deceit, to convey to him all their property in discharge of a religious duty and then refused to account to them, the court declared the trust closed and divided the estate among the members in proportion to the money, property, and labor contributed by each of them.312
172. Superioress, Money.—A person who contributed money for the purpose of repairing a convent, the money being turned over to the superioress and the convent not being incorporated, upon the project being abandoned subsequently a personal judgment could not be obtained against the superioress for the money contributed.313
173. Loan, Priest.—If a man lends money to a priest for the purpose of paying a note against the congregation left at the bank for collection, he can recover the money so paid from the congregation.314
174. Warden, Wages, Sexton.—A church warden who was hired by the trustees [pg 103] of a church can not collect his wages by an action against the priest of the parish.315 A church accepting the services of a sexton is liable to him therefor, whether the by-laws were observed in employing him or not; nor will the fact that any party (as in this case the Ladies of the Altar Society) agreed to contribute to his annual salary, defeat his recovery of the whole from the church employing him.316
175. Sewing Circle, Money.—A church may maintain an action against a sewing circle to require it to pay over money collected for the benefit of the church.317
176. Business, Notice, Meeting.—Where, in the transaction of the local business of a religious society, whether incorporated or not, meetings of the members shall become necessary, in order to make such meetings legal due notice thereof should be given to every member. The notice should specify the exact time and place where the meeting will be held, and no change can be made except at such time and place. Unless some other place is specified, the parish church is the proper place for holding meetings. If the church should be locked and the key can not be found, a meeting should be held at the door or at the nearest practical place to the church where all the members may assemble, and then by a majority vote they may adjourn to any convenient near place accessible to all the members.318
177. Acts, Void, Lawful, Clerk.—The acts of a majority of the members of a corporation, unless done according to law and [pg 105] in conformity with the charter and by-laws of the corporation, are absolutely null and void.319 The only lawful manner by which a congregation can express itself, is by a meeting regularly called and held upon due notice.320 The notice of a meeting should be authorized by the trustees or other authority of the church, and given to all the members. The clerk of the board of trustees, unless authorized to do so, has no authority to sign the name of the members of the board to a notice, and a meeting called in that way is illegal.321
178. Special Meeting, Notice.—When a meeting is special, the notice must state for what purpose the meeting is called. If it fails to do so it is void, and unless all the members are present and consent to the holding of the meeting, all business transacted is illegal and void.322 Notice of a special meeting that states one specific purpose for which it is called, and then states “to transact any other business that may legally come before the meeting,” is not good for any purpose except the one specified.323
[pg 106]179. Meeting, Consent.—A valid meeting can not be held by a corporation, unless notice has been given in conformity with the laws and rules and regulations of the corporation or the consent of every person who is entitled to be present at the holding of such meeting. In the latter case the consent should be in writing and signed by all the members.324 However, a person who attends a meeting and takes part in it without objection, is estopped from raising the question of notice.325
180. Notice, Principal Service, Custom.—When a rule of a church required notice of a meeting to be given at the principal service, a notice given at an earlier service only, was void.326 But where the ordinances of a church specified that the election of officers should be at least six days before the end of their term, and it became the custom of the church to hold the election on a movable holiday which sometimes was less than six days, the election was held valid.327
181. Adjournment.—Where a meeting was noticed for one day and held on a different day without notice of adjournment, all acts done were void and the officers [pg 107] elected were neither de jure nor de facto officers.328
182. Proof of the Notice.—The proper proof of the notice would be the return of the officer serving the notice, in some States; and in others an affidavit of the person who served the notice. The proof of the services of a summons would be sufficient unless there is some other law or rule to the contrary.329
183. Presiding Officer.—When the laws of the organization provide who shall preside at a meeting, but the minister contrary to such laws and against objections presided over the majority of the congregation, and the minority was presided over by the proper person, and both elected officers, the officers elected by the minority were the lawful ones.330 However, where a meeting is presided over without objection by a member instead of the proper officer, the acts of the body are lawful.331
184. Voters, Rules.—Unless the laws of the State otherwise provide, every religious organization has the right to determine who shall vote at its meetings and elections. If those provisions are reasonable, they are [pg 108] lawful. Under such provisions it has been repeatedly held that where there are rules requiring annual subscriptions to the church,332 only those who rented and paid for pews, or those who paid a certain annual tax, or those who went to communion, were entitled to vote.333 And where there was no rule, it was held that one who has not contributed to the church334 and persons who attended church only occasionally and contributed only when they attended, were not qualified voters.335 In the last case it was stated that a qualified voter is one who has attended regularly during the year and has contributed to the support of the church.
185. Quorum, Majority.—A quorum of a congregation usually consists of those present at a duly called regular meeting, and a majority of those present is sufficient to carry questions, unless by rule or law otherwise provided.336 But where there is a definite body in a corporation which has established no other rule, a majority of the members of the corporation constitute a quorum.337 Where the minutes of the clerk [pg 109] stated that upon due notice the members of the corporation met, a quorum is presumed.338
186. Votes, Challenge, Inspectors, Casting Vote.—The reception of illegal votes does not invalidate an election unless they change the result.339 If the presiding officer refuses to allow a qualified voter to vote, the right may be enforced through civil courts.340 When votes have been received without challenge, it is then too late to raise the objection that the persons have no right to vote.341 It is the duty of the inspectors to determine the qualifications of an elector at the time that he offers to vote, and before he votes; and if they decide in the exercise of their judgment, without malice or improper motives, the regularity of the election can not be questioned.342 When a rule allows the presiding officer to vote and another rule states that he shall have the casting vote in case of a tie vote, he still had the right to cast the decisive vote.343 Illegal voting in a religious society probably is not an indictable offense, but it is a disorderly act.344
[pg 110]187. Written Notice, Prayer Meeting.—Where a five days' written notice is required to hold church meetings, an oral notice given on Sunday evening at the prayer meeting is not sufficient for a meeting on the following Wednesday. But a vote taken on Sunday to hire the minister and fix his salary, is not void.345 Churches and benefit societies, such as insurance fraternities, being charitable organizations, may do business concerning such association on Sunday.346
188. Expulsion, Damages.—A man who has been wrongfully expelled from a temperance society for religious reasons may recover damages therefor.347