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In
our last number we promised to give in the present the opinion of the
Supreme Court of New York in regard to this unfortunate affair, that all
interested might form their own opinion. We will merely state in
explanation that Mr. Phillips was an old trustee, and held over for some
alleged informality in the election. Mr. Hart was elected by the
inspectors refusing to receive the votes of certain persons who claimed to
be members under the law of the state. Mr. Ritterband, though he received
less votes than Mr. Hart, contended that he was deprived of his election
by illegal means, in the refusal of the above votes. Messrs. Hart and
Phillips belong to the secession party; Mr. Ritterband on the contrary to
the present occupant of the Elm Street Synagogue. To all appearance,
though the election of Mr. H. was sustained upon legal grounds, still the
principles for which Mr. R. contends were sustained. But our readers can
judge just as well as we can,
and we communicate the opinion merely as a part of the history of
the day.
Ed.
Oc.
Supreme
Court.—The People ex rel. Henry J. Hart v. John D. Phillips and Leon
M. Ritterband.
By the Court—Beardsley, J. This
information was filed in December, 1844. It alleges that Phillips, one of
the defendants, had usurped the office of trustee of the religious society
incorporated by the name of B’nai Jeshurun, and that for forty days and
more, then last past, he had unlawfully held and executed said office. The
holding is confessed by Phillips, but he denies the usurpation; and in
justification, he sets up in his plea that having, in 1841, been duly
elected to and taken upon himself the office of trustee in said
corporation, for a term which expired on the 11th day of October, 1844, he
held over and continued in said office from the day last mentioned, for
the causes stated and set forth in said plea. This he alleges he had good
right to do, under the authority of an act passed the 15th day of
February, 1826, [Laws 1826, p. 34; 3 R. S. 215.] I do not regard it as at
all clear that this statute applies to such a case as is attempted to be
made by the plea; but this question was not made on the argument, and for
the present purpose it is unnecessary to express any final opinions on it.
Conceding the applicability of the statutes, the plea is still defective;
for it fails to show that the defendant had any legal right to hold over
after the 11th of October, when his regular official term expired.
The fact that no person had been chosen in his stead
was indispensable to the right set up by Phillips; for without this it
cannot he pretended the statute authorized him to hold over. But such a
case is not made by his plea. To be sure it alleges that an election was
held on the 11th of August, 1844, to supply the vacancy which was to occur
the succeeding October, by the expiration of Phillips’s term of office;
and it aims to show that no person was then chosen for that purpose. Let
this be conceded (although it is only conceded for the sake of the
argument, as the plea does not show it), but it by no means follows that
another election was not held and a choice made previous to the 11th of
October. An election might have been called and held on any day not less
than six days before the vacancy was to occur. [Act of 5th April, 1813: 3
R. S. 209, § 6.] Phillips sets up a right to hold over after the
expiration of his regular official term, and on that ground attempts to
justify his continuance in the office. He was therefore bound to show
clearly that no one had at any time been chosen to succeed him. The plea
fails to do this, and is therefore bad. The people are accordingly
entitled to judgment of ouster against the defendant Phillips. [2 R. S.
585, § 48.]
The principal question is between Hart and
Ritterband, each of whom contends that he was duly chosen a trustee in the
place of Phillips, at the election held on the 11th of August, 1844. The
information alleges that Hart was chosen on that occasion (2 R. S. 582, §
30, 31), but that Ritterband claims to be entitled to the office; for
which cause he is made as party defendant [§ 45]. Ritterband in his plea
denies that Hart was chosen, and alleges that he was himself elected; for
which cause he admits that he claims to be such trustee.
In
his plea, Ritterband states that an election was duly held on the 11th of
August, for the choice of a trustee in the place of Phillips; and he
admits that of the votes received by the inspectors, Hart had a greater
number than himself; although he alleges that a large number of votes were
offered to be given for him [R.] by qualified voters, and which, had they
been received, would have given him a number exceeding those given and
received for Hart; but he states that said votes, so offered for him, were
rejected by the inspectors, who refused to receive or canvass them, for a
cause which is charged by him to be illegal.
There
are various replications to this plea, some of which are demurred to; and
thus the sufficiency of the plea is directly drawn in question.
It
is not suggested in the plea that any of the votes given for Hart were by
illegal voters; and of the whole number of votes given and received by the
inspectors, the plea admits that a greater number were cast for Hart than
Ritterband. This concession seems to me fatal to the claim that Ritterband
was chosen at that election. Legal votes may have been rejected, so that
none was rightfully chosen, and a new election would be proper; but
certainly no one could have been elected who received a minority only of
the legal votes which were actually given and received at the election in
question. [19 Wend. 37: In the matter of the election of directors of the
Long Island Railroad Co. Angell & Ames on Corp. 72.]
Judgment
must therefore pass against Ritterband, as he shows no title to the
office.
The
only question which remains has reference to Hart, who is alleged in the
information to have been duly chosen as trustee at the election of the
11th of August. That he was chosen is not in terms denied by the defendant
Phillips; but this decides nothing, for it is directly traversed by the
defendant Ritterband. His plea, although it fails to show that he was duly
elected, is quite sufficient, as a denial that Hart was chosen. The
election of Hart is therefore strictly in issue upon this plea, as it also
is upon the fifth replication. Upon this issue the people hold the
affirmative, and they are not entitled to judgment upon it unless the
election of Hart is fully established.
Of
the votes given and received by the inspectors of the election, Hart had a
greater number than Ritterband; and if none but illegal votes were
rejected, Hart must lave been duly chosen. But twenty-eight votes were
offered to be given for Ritterband, which were rejected by the inspectors.
If these had been received and allowed in his favour, he would have had a
clear majority over Hart.
The
issue has not been tried by a jury, but a stipulation in the nature of a
special verdict has been entered into by the parties. By this certain
matters are admitted.
- “All the facts settled by
the pleadings which terminate in demurrers.”
- Sundry by-laws and other
matters which are specified in the stipulation.
That
clause of the stipulation by which all facts settled by the
pleadings are admitted, is very liable to be misapprehended. The plea of
Ritterband, so far as it assumes to show that he was chosen a trustee, is
insufficient; and it can hardly be said with propriety that any facts are
settled by such a plea, or by replications thereto, which are met by
demurrers. At all events it is not unlikely that the parties and their
counsel may have understood this branch of the stipulation somewhat
differently from the court. This is one reason for not proceeding in the
present case to a judgment on the alleged right of the relator Hart; nor
ought that to be done until we are informed of the particular ground on
which the twenty-eight votes were rejected. This does not clearly appear
by the stipulation, as convenience at least requires that it should. In
this proceeding the court are not bound to render judgment upon the right
of the relator Hart, as they are upon that of the defendants. It may be
done or omitted, “as justice shall require.” [2 R. S. 582, § 31.] And
it seems to me it may with great propriety be left for final adjudication
on a direct proceeding against him, if he shall think proper to enter into
the office which will be left vacant by the judgment against Phillips and
Ritterband.
But
I would not have it inferred, from thus passing, over this branch of the
case, that I think Hart was rightfully chosen a trustee. As presented,
this part of the case seems to me equivocal in matter of fact; but if I
rightly apprehend the ground on which the votes were rejected, I think the
inspectors plainly erred in refusing to receive those votes.
By
the third section of the act of April 5, 1813 [3 R. S. 207], any church,
congregation, or religious society, may proceed to elect trustees, with a
view to become incorporated, and at such election “every male person of
full age, who has statedly worshipped with such church, congregation, or
society, and has formerly been considered as belonging thereto, shall be
entitled to vote.” But at subsequent elections, no person, although a
member, shall be permitted to vote “until he shall have been a stated
attendant on divine worship in the said church, congregation, or society,
at least one year before such election, and shall have contributed to the
support of such church, congregation, or society, according to the usages
and customs thereof.” [§ 7.]
These
sections prescribe the qualifications of electors, which, in brief, are—
- Membership: no person can
be an elector who does not belong to such church, congregation, or
society.
- He must have been for a
year at least a stated attendant on divine worship in said church,
congregation, or society.
- He must have contributed to
the support of the same according to the usages and customs thereof.
These
qualifications can neither be abridged nor extended by any act of the
trustees or of the corporators; but every person thus qualified has an
incontestable right to vote at the election of trustees. The statute under
which the incorporation was formed, is its constitution, and every act in
violation of this paramount law is necessarily invalid. This is a
well-settled principle of the common law, and is of universal application
to all corporations. [Bl.
Comm. 475; 2 Kent, 277, 293, 294. Angell and Ames on Corp. 267,
273, 281, 6, 7, 8; 7 Bing. R. 1, The King vs. Westwood; 3 S. and R. 29,
The Commonwealth vs. Wodfa; 2 Green’s R. 222, Taylor vs. Griswold.] The
same principle is recognised and affirmed by the Revised Statutes. (1 R.
S. 599, § 1, 2, 3.) Every corporation has power to make by-laws; but they
must be consistent with its charter, or they will be invalid. This power
to make by-laws is sometimes vested in the whole body of the corporators,
and in other instances in a select body. The act under which this was
formed expressly authorises the trustees “to make rules and orders for
managing the temporal affairs of such church, congregation, or society.” [3 R. S. 208, § 4.]
I
think it unnecessary here to inquire whether the body of this corporation
can make by-laws upon any subject, or whether the power is vested
exclusively in the trustees; for neither can have any authority to make a
by-law which contravenes the act under which the corporation came into
existence.
Without
therefore adverting in detail to the by-laws referred to in the
stipulation (and upon which it would seem that twentyeight votes were
rejected), it may be sufficient on this occasion to observe, that as far
as these by-laws required qualifications for the exercise of the right of
voting not recognised in the statute, they were wholly unauthorized and of
no force whatever. If the person offering to vote was a member, a stated
attendant for the required period, and had contributed to the support of
the society according to its usages and customs, he was a legal voter. He
was not bound to comply with a by-law which declares that he must be
especially admitted to the privileges of being an elector, or which
requires him to pay any specified sum for that privilege. No such
restraint can be imposed on the admission of members otherwise qualified
to the right of voting. Indeed, the idea upon which these by-laws seem to
have been framed and adopted—that persons may become members for the
purpose of worship and contribution, and so far comply with what is usual
and customary in the society, and still not be authorized to vote without
special permission, and the payment of some fixed or arbitrary sum as a
price for the privilege, is entirely fallacious. Membership, worship, and
contribution carry with them as an inseparable incident, the right to
vote; for every such member is necessarily an elector. If the twenty-eight
voters were excluded for not having complied with such by-laws, the
inspectors erred, and Hart was not duly elected.
I
have assumed upon this branch of the case, that it is competent to attack
and avoid election of Hart, by showing that, although he received a
majority of the votes given at the election, still a large number of legal
votes were offered for Ritterband and improperly rejected, and which (had
they been received) would have given him a clear majority over Hart. But
it may admit of serious doubt whether an election can thus be invalidated.
The principle has not been examined, and no opinion is intended to be
expressed upon it. This and other questions, which have been adverted to,
may hereafter arise on a direct proceeding against Hart, when it will
become necessary to pass upon them.
The
people are entitled to judgment against Phillips and Ritterband; but no
judgment is given as to the alleged right of Hart. (A copy.)
H.
Denio, State Reporter, Per H. G. Bronson.
The
Elm Street Congregation, New York.
It
is with extreme hesitation that we recur to this subject; but an appeal
has been made to us by the persons who think themselves injured by the
letter of the Rev. Mr. Isaacs, in our September number, that we should
admit them to reply to the same, that we are reluctantly compelled to
touch upon the subject again. We had hoped that all parties would be
satisfied to let the matter drop; but we are sorely grieved to find that
we are deceived in this hope. To proceed then as briefly as possible, the
present worshippers of the Elm Street Synagogue contend as a justification
for resolving to dismiss Mr. Isaacs that he imprudently consulted the
wishes of the trustees and Parnass of the party opposed to the admission
of the votes at the last election spoken of in the Opinion of the Court;
that hence they were exercising their office without due authority; and
that the persons refusing to pay to the treasurer and collector appointed
by these, were nevertheless at the time ready to discharge their
indebtedness into the hands of a third party, to be held in trust for the
congregation at large. They moreover say that the law books were removed
from the Synagogue after they found that it had been barricadoed and
nailed up on the Sabbath day; and that Mr. Isaacs was formally suspended
on the conclusion of the Sabbath, so that he had no right to officiate on
the Monday following. That whilst reading the service they would not
interrupt him; but when the law book was brought in by one of the
trustees, it was given to a gentleman whom the Parnass had designated to
read therefrom. They deny that any assault was designedly made upon Mr.
Isaacs; and that if any was made, it must have been accidental, in the
confusion incident on the above occurrence, to wit: when Mr. Isaacs, on
returning to the desk, found it occupied by another. The above is a
condensed statement, drawn from the communication furnished us; and it
evidently proves that, under the existing excitement, it was next to
impossibility to arrive at any exact knowledge of the course of events
which followed rapidly on one another. There can be no doubt thatour
friend, the Rev. Mr. Isaacs, suffered a great wrong between both
contending parties, and that he would have been condemned by one or the
other let him have acted as he would. But equally clear is it that the
persons now opposed to him did not mean to desecrate the house of God, nor
to do him any bodily injury; and still, in the contest things took place
which we are sorry to see recorded in our magazine, and a minister whom
all revered has been assailed, if not actually at least incidentally. At
the same time the present occupants of the Elm Street Synagogue contend
that they are not wanting in respect to the teachers of our religion, and
they are anxious to obtain soon a suitable person to be to them what Mr.
Isaacs has been. As this wish is so laudable, and not a little flattering
to Mr. Isaacs that his absence is felt, and not to be supplied by any one
on the spot, we have unwillingly consented to let the party in question
appeal to the public for a partial justification, and to express their
determination that whoever may come among them shall not have cause to
regret his being the minister of their congregation.
We
have one word to say in parting: enough has been said on this unfortunate
subject to satisfy all concerned; mutual crimination can lead to no good result;
hence we must request that no more articles of the kind
will be sent to us. At the same time we have no hesitation in saying that,
if the parties are not satisfied, and think that their reputation requires
defence, we will admit one more for each; but there must be nothing which
is merely reflecting upon motives; we have only to deal with facts, and
not with surmises.
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