People ex rel. Maclaury v. Hart

Headnote

Mandamus—Notice of Election of Vestry-Men.

Where the rector of an incorporated church refuses to give the notice of the annual election of vestry-men as required by Laws N. V. 1813, c. 60, as amended by Laws 1868, c. 803, § 1, subd. 10, and by the by-laws of the church, mandamus will lie to compel him to give such notice. ' •

Application by James Maclaury for a peremptory writ of mandamus to require A. Bloomer Hart, as rector of the Protestant Episcopal Church of St. Stephen, a corporation, to give notice during divine service of an election of church-wardens and vestry-men. Relator alleged in the affidavit filed in support of his application that he was a member of said church, -and entitled to vote for church-wardens .and vestry-men. St. Stephen’s ‘Church was incorporated under Laws $T. Y. 1813, c. 60, as amended by Laws 1868, c. 803, entitled “An act to provide for the incorporation of religious societies,” which' contained the following provisions: “(1) It shall be lawful for not less than six male persons, of full age, belonging to any church or congregation in communion with the Protestant Episcopal Church in this state, not already incorporated, to meet at any time at the usual place of public worship of such church or congregation, for the purpose of incorporating themselves under this act. * * * (4) The persons entitled to vote at such meeting shall be the male persons of full age belonging to 4he church or congregation, qualified as follows, and none other: First, those who have been baptized in the Protestant Episcopal Church, or who have ‘been received therein either by the rite of confirmation or by receiving the

holy communion; or, second, those who have purchased, and for not less than twelve months next prior to such meeting have owned, a pew or seat in such -church, or who, during the same period of time, have hired and paid for a pew or seat in such church, or who, during the whole period aforesaid, have been contributors in money to the support of such church. * * * (9) The male persons qualified as aforesaid, provided they shall also have belonged to such church or congregation for twelve months immediately preceding, shall, in every year thereafter, on the day in Easter week so fixed for that purpose, -elect two church-wardens,, and as many vestry-men (not less than four, nor more than eight) as shall have been legally determined to constitute part of the vestry. (10) Notice shall be given of such election by the rector, if there be one, or if there be none, or he be absent, by the officiating minister, or by a church-warden, for two Sundays next previous to the day so fixed, in the time of divine service.” The by-laws of the church require that “the annual election by the congregation shall be held on Monday, in Easter week, immediately after the morning service, when two wardens and eight vestry-men shall be elected by ballot. Notice shall- be given by the regular rector, or, if there be none, by one of the wardens, on the two Sundays during divine service next previous to the day of election.” The application was to require the rector to give notice on Sunday, April 6th, and Sunday, April 13th, of an -election to be held on Thursday, April 17, 1890. Relator alleged that the statute and by-laws above set out required the annual election to be held on April 7, 1890, (Easter Monday,) and that it was respondent’s duty to give notice thereof on the two preceding Sundays, March 30th and April 6th, but that he bad failed to give the notice on March 30th, and refused to give any notice of the annual election.