| Pa. | Mar 9, 1880
delivered the opinion of the court, May 3d 1880.
This case was heard on bill, answer and report of the master. He reported in favor of dismissing the bill. On exceptions, the court reversed the conclusion of the master, and ordered and directed the injunction to issue as prayed for in the bill, and decreed in accordance therewith. From that decree this appeal ■was taken.
The bill was filed by persons claiming to be officers and members of “ The German Catholic St. Nicholas Society,” an unincorporated association, against the appellants, alleging they were members of the same society, and charging that they had unduly obtained possession and control of the money and assets of the society.
The appellants denied that they were members of that association, and claimed to hold the property in question as officers of the “St. Nicholas Mutual Assistance Association,” a company duly incorporated; and averred that the appellees were also members of said corporation until they illegally withdrew therefrom.
The main questions arising in the case are, -whether the association was duly incorporated, and, if not, whether the action of the appellees has been such as to give them a legal right to the possession and control of the funds in controversy.
In 1866 a beneficial association was formed, under the name of “ The German Catholic St. Nicholas Society,” commonly called “ St. Nicholas Verein.” Its main purposes were to a.id and relieve sick and needy members, provide for a suitable burial of their dead, according to the rites of the Roman Catholic Church, and to care for the widows and orphans of deceased members. • One of the qualifications necessary to admit a person to membership was that he must be an active member of the Roman Catholic Church at Wilkesbarre. The pastor of that church was permitted to attend the meetings of the society and to make motions, but had not the right to vote. Any alteration or amendment of the constitution required the agreement of three-fourths of the “present members.” A majority could amend the by-laws. In the spring of 1872, according to the requirements of the constitution and by-laws, the society resolved to be incorporated in the name of “ The St. Nicholas Mutual Assistance Association,” or, in German, “ St.- Nicholas Verein,” and prepared articles of incorporation, setting forth the objects of the association to be substantially the same as those of the previous society. The association was to be located in Wilkes-barre ; and it was provided that “ none but citizens of this Commonwealth can become members of this association,” and did not
In May 1872, the articles, and a petition of members, were presented to the Court of Common Pleas of Luzerne county, and were directed to be filed and published. At the October Term following, a decree of incorporation was made. The validity of the charter is denied by reason of its alleged departure from the instructions given to the committee which prepared it. In the record of the decree on the continuance docket, and in the recorder’s office, and also in the certificate attached to the charter, each show's the name was originally written “ The St. Nicholas Mutual Assistance Association, called Wyoming Vereinbut in each of them the word “Wyoming” had been cancelled by drawing a line through it, and the words “ St. Nicholas” written over. It does not appear by what authority the word Wyoming was written or afterwards changed. It is further objected that the minutes of the society do not show any vote taken on the question of accepting the charter.
The master, however, found as facts, that the charter was handed to the president of the society in December 1872, or in January 1873, and the bill of the attorney was approved and paid. In March and April following complaint was made that it was not correct. The objections appear to have been that the name was wrong; that it required members to be citizens of the Commonwealth, and did not require members to fulfil their obligations to the church of Wilkesbarre. It was therefore resolved that the charter be handed to counsel for correction. And it was so handed. In June following it was resolved that the committee who had been instructed to hand it to counsel, “ care that the charter would be returned into the hands of the society.” At the next monthly meeting it was brought in and handed to the president. Thenceforth until the close of the year 1874, this charter, with the other papers of the society and key to the desk were handed by each president to his successor as they were severally installed, as a part of the ceremony. Thus, for a year and a half after the charter had been returned to the association, it remained in the hands of the proper custodian thereof, and manifestly was accepted and recognised as the charter of the organization.
It seems to us the necessary inference is, that the association was fully informed as to all the provisions of the charter, and that the charter was accepted and adopted by the society, whereby the latter became a body corporate. Nor do we think the fact, that in January 1875, and again in March, objections were made to a president by reason of his not having performed his duty to the church, under the original constitution, sufficient to rebut the presumption of previous acceptance and ratification. If this conclusion be correct, it is fatal to the bill. If- however, we should
The appellees claim that in June 1875, while they and the appellants were members of the same society, and at a meeting thereof, the amended constitution was adopted. The master has found there were at that time about 180 or 185 active members of the society. About 85 of which were present at the meeting. Before the question was put to the meeting on the adoption of the constitution, one of the appellants arose and protested against it, and produced a paper signed by more than 50 members of the society, declaring they would not accept the proposed constitution. When the vote was taken, about 50 or 55 members voted in favor of the adoption of the “ Central constitution,” and that the negative of the question was not put. Thus it appears that three-fourths of all the active members did not agree to the change, and less than one-third of them voted for it. Three-fourths of the members present did not vote in its favor: and more than the number requisite to defeat it, who were present and desirous of voting against it, were not given an opportunity to so vote. Hence, the very constitution under which the appellees claim to have acted was disregarded, and the master has found their action “was revolutionary.” It therefore follows there was no legal adoption of the “ Central constitution.” He further found the ¿attempt was to make a radical change in the obj-ects of the society. We think the correctness of this conclusion is too clear to need argument. The changes are to the objects o.f the society, and the forms of government. Reference will be made to some of them. Previously, it “was practically a mutual aid society only. The change was to make it a religious society, although retaining a mutual aid feature. The sectarian object was made fully equal to the mutual aid object. The question is not whether such a change may not have been beneficial. It is a question of power. Less than three-fourths of those present had no power to change the constitution. Whether the minority acted wisely or unwisely
Decree reversed, and bill dismissed at the costs of the appellees.