People ex rel. Cook v. Fleming

This is an action m 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 Sehroeder 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 (chap. 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.

Certain of the defendants claim title t'o 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 war ranto, 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

It having been adjudged that seven of the persons declared elected on the 7th day of April, 1890, were not legally elected, the claim 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 offices until others be chosen in their stead,” under the provisions of the act 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 judg

.'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 these now presented the Maryland Court of Appeals in the case of Handy v. Hopkins ( 59 Md., 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 office, 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, with 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 office 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

The law of 1844 employs 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., 514 ), in construing a similar statute, the court defines .the term “ neglect ” as used by the legislature as synonymous with “omit” or to leave an act undone. Here there was no omission or neglect to hold an election or choose officers. The stated annual 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 is 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

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 or 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 in 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 Railway Company ( 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 Insurance Company ( 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 major part of twenty-three, had received a plurality of votes, it may be that the whole election would have been void.”

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 relator’s 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., concurred.

Judgment and order affirmed, with costs and disbursements.