The Congregational Society of Bethany against Sperry, 10 Conn. 200

Church, J. Several questions affecting the rights and duties of towns and the religious and school societies in this state, of much practical importance, are presented by this record.

This action was commenced, and is now prosecuted, by certain individuals claiming to be a committee of the ecclesiastical society of Bethany, in the name and for the benefit of that society ; and the defence, as it is presented by the facts alleged in the plea in abatement, as well as relied upon under the general issue, must abide the decision of the question, whether the individuals thus acting as committee, were legally such, at the commencement of this suit.

It is admitted, that the persons named were legally appointed a committee of said society, on the 1st day of December, 1830, and re-appointed, on the 10th day of March, 1831, for the year then ensuing, but were never again appointed ; and that this action was commenced on the 18th day of May, 1832, more than one year after the last appointment of said committee. And it was also agreed, that the annual meetings of said society, by its vote, were directed to be holden on the first Wednesday of March annually.

The plaintiffs insist, that no other persons than those chosen on the 10th day of March, 1831, have ever since been legally elected as a committee of said society ; and that, of course, they continued to hold their offices when this suit was instituted, and had right to institute and prosecute it, notwithstanding the year for which they were elected had expired, and the time established for the annual meetings of the society had elapsed. And in my opinion, the law sustains the plaintiffs in these positions. Before the stat. 11 Geo.

I. c. 4. was enacted, it was doubted, by English lawyers, whether a corporation was dissolved, by its neglect to elect its annual officers, upon its charter day; and to prevent further doubts, the statute aforesaid was enacted ; and since this statute, it has yet been doubted whether it introduced a new rule, or was only declaratory of the common law. The King v. Pasmore, 3 Term Rep. 199. 245. & seq. per Butter, J. 2 Kent's Com. 238. Angell & Ames on Corp. 76. in nolis.

The law, as claimed by the plaintiffs, in this case, was, however, recognized and decided in England, as early as the reign of George I.,.in the case of Foot v. Prowse, the mayor of Truro, after much deliberation, in the court of Exchequer Chamber and in Parliament, reversing a previous decision of the court of King's Bench. 1 Stra. 625. 3 Bro. Par. Ca. 167. [2 Bro. Par. Ca. 289.

Toml. ed.] By the 4th sect, of our statute regarding religious societies and congregations, it is enacted, that “ The members of such societies and congregations shall have power to appoint three or more of their members to be a committee to order the affairs of the society for the year ensuing," &c. Stat. 443. tit. 94.

By a statute of an early date, relating to towns, it wag provided, that towns should hold their annual meetings in the month of December annually, and that constables should be chosen and sworn yearly ; and it was early decided, under this statute, that a constable once duly chosen and sworn, continued to be a lawful constable until another should be chosen and sworn in his place ; (Kelsey v. Wright & ux. 1 Root, 83.) and the authority and principle of that case was recognized and confirmed, in the case of McCall v. The Byram Manufacturing Company, 6 Conn.

Rep. 428. in which the court say, “ it is a well-settled principle, that an annual officer continues until superseded, by the appointment of another in his place.” And the principle was, in that case, applied, by the court, to town officers ; and it is equally applicable to society officers. In this state, therefore, it must now, I think, be considered as settled, that the annual officers of both public and private corporations, hold their offices until others are appointed in their places, unless there be some restrictive provision in the statute or charter creating them. Spencer v. Champion, 9 Conn. Rep. 537.

And the same principle seems to have been recognized, by the courts of the state of New- York, although it has been doubted by the chancellor of that state, in a very recent case. The People v. Runkle, 9 Johns. Rep. 158. Slee v. Bloom, 5 Johns. Ch. Rep. 366. Vernon v. Hills, 6 Cowen, 23. 2 Kent’s Com. 238. Philips &. al. v. Wickham & al. 1 Paige’s Ch. Rep. 590.

It was suggested in argument, that from the peculiar phraseology of the statute, it is to be inferred, that societies’ committees have no power of holding over beyond the expiration of the year for which they are chosen, whatever may be the law as applicable to other officers ; because the power of holding over is expressly given, by the same

section of the statute, to society clerks. But I do not believe this inference to be a just one. The fact is, that the present statute provisions regarding societies’ committees and societies’ clerks, which are now included in the same section, were originally distinct and separate, enacted at different times, and without any reference to each other ; and were first incorporated into the same

section as they now stand, at the revision of 1750. See Stat. 629. ed. 1808. in notis. In another suggestion of the defendant, there would be much force, if fqr the evil apprehended there was no remedy. It was salc! that ag n Is the exclusive duty of a society's committee to warn the annual meetings of the society for the elec-tjon 0f officers, they may perpetuate their own powers, and hold their offices during their own pleasure, if the claim of the plaintiffs is admitted ; and to effect this, they have only to refuse to warn the annual meetings.

It is a sufficient answer to this argument, to say, that if this duty be neglected, a writ of mandamus, directed either to the society’s committee, or to the society itself, would enforce the annual election of the necessary officers. Rex v. Cambridge, 4 Burr. 2011. Rex v. Gregory, 8 Mod. 113, 127. Angell & Ames on Corp. 429.

If an argument ab inconvenienti may be resorted to, in any case, this case presents one instance of its propriety, on the part of the plaintiffs ; for I see not but it follows, if the claim of the defendant be sustained, that this corporation is dissolved ; a consequence which ought not to be readily admitted. The King v. Pasmore, 3 Term Rep. 199.

The foregoing inquiry has proceeded upon the ground assumed by the plaintiffs, that no other committee of the society of Bethany has been legally elected since March 10th, 1831; which position, in my opinion, is correct; because, First, there could have been no legal meeting of the society, at which an election could have been made, without a previous legal warning and notice, as directed by statute. By the 3d

section of the statute before referred to, on this subject, the members of the several religious societies and congregations are empowered to “ meet annually, some time in the month of December, or at such other times as they shall judge convenient, at the usual place of holding meetings, or at such other place as they shall establish, upon warning and notice, given, at least five days before such meeting, by the committee of the society or congregation, or if there be no committee, by the clerk,” &c. By the 5th

section of the same statute, such societies are authorized “ to establish the times and places of holding their meetings and the mode of warning them.” It is very apparent, that no power is given, by this latter

section of the statute, to dispense with the notice and warning required by the former. Hicock v. Hoskins, 4 Day, 62. Secondly, although there was a pretended meeting of said society, on the 1st Wednesday of March, 1832, at which Alvan Sperry and others were chosen a committee for the ensuing year, yet that meeting was unauthorized : it was not legally warned.

There was a committee of the society, by whom only it could have been warned ; the clerk, therefore, could not do it; and although he affixed the names of the committee to a notice and posted it upon the public sign-post, as that act was done without either the previous authority or subsequent ratification of the committee, it was ineffectual, Sperry and others, therefore, were not legally chosen; but on the contrary, Theophilus Smith and others, who were elected committee of the society, on the 1st day of December, 1830, and re-appointed on the 10th day of March following, continued to be the only committee of the society, when this suit was instituted, and to whom alone payment of the note in suit could be made.

Therefore, a new trial is not advised. The other Judges were of the same opinion, except Peters, J,, who was absent. New trial not to be granted.