People ex rel. Fleming v. Hart

Headnote

Mandamus—To Elect Corporate Officers—Referee.

A peremptory ma/ndamus will issue to the rector of an incorporated church to join with the trustees in appointing a time for an election to fill vacancies in the offices of church-wardens and vestry-men, and to give notice thereof, as required by law, where the rector refuses to do so in order to promote a scheme for the consolidation of said church with another church, in which scheme he is personally interested; and a referee will be appointed to see that the writ is obeyed, and to act as inspector of election.

Application by Charles E. Fleming and others for a peremptory mandamus to compel A. Bloomer Hart, as rector and trustee of the Protestant Episcopal Church of St. Stephen, a corporation, to join with relators as trustees of said church in designating a time for the election of a church-warden and vestrymen, and to give notice thereof. The petition alleged that relators, as trustees, had requested respondent to join with them in fixing a time for said election, which he refused to do; that thereupon relators held a meeting and appointed a time for such election, and requested respondent to give the proper notice of such election, which he also refused to do. The petition further alleged that respondent was interested in a scheme for the consolidation of St. Stephen’s Church with the Holy Trinity Church, by which all the property of St. Stephen’s Church was to be transferred to the Holy Trinity Church, and respondent was to be made rector thereof for life, with his salary increased from $1,800 to $2,500 a year; and that his refusal to join in calling an election was for the purpose of benefiting himself, and of effectuating the proposed scheme of consolidation. The following order was entered on the decision of Larremore, C. J., granting the application:

“ Ordered, that the said motion be granted, and that a peremptory writ of mandamus issue out of and under the seal of this court directed to the said defendant, A. Bloomer Hart, as rector and trustee of the said corporation, the rector, church-wardens, and vestry-men of the .Protestant Episcopal Church of St. Stephen, in the city of Hew York, commanding him to join with the relators as trustees of the said corporation, in appointing a time for holding a special election to supply the vacancy in the office of churchwarden and the six vacancies in the offices of vestry-men in said church, and directing that the said trustees, to-wit, the relators and the defendant, appoint Wednesday, July 23, 1890, at 10 o’clock in the forenoon, and immediately after the morning service in said church, as the time, and the church edifice of the said church, on Forty-Sixth street, between Fifth and Sixth avenues, in the city of Hew York, as the place for the holding of said special election; and directing that the defendant join with the relators in giving notice of such election to occur on July 23, 1890, as aforesaid; arid directing that the defendant give said notice of said special election at the time of divine service on Sunday, July 13, 1890, and on Sunday, July 20, 1890, if he be present at such service, and that, if present at said election, he, the defendant, shall in all things relating thereto act under the supervision and superintendence of Edward M. Shepard, Esq., the referee hereinafter appointed, and commanding the defendant to do and perform such other "and further act or acts as may be useful and proper in the premises. And it is further ordered, that it be referred to Edward M. Shepard, Esq., of the city of Hew York, to see that said peremptory writ of mandamus is fully obeyed, and

to be and act as inspector of such election, and the judge of the qualification of voters thereat, to supervise and superintend the same, and to see to it that said election is fairly held and conducted in all respects in accordance with the law, and that the said defendant, if he shall preside at such elec-. tian, shall receive and count all lawful votes offered thereat', and shall reject all unlawful votes thereat offered, and that the said referee shall have 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 to report his proceedings, and all matters relating to the conduct of such election, to this court with all convenient speed.”