29 Wis. 109 | Wis. | 1871
It was incumbent on the plaintiffs to show the existence of the corporation of which they claim to be the trustees and officers, in order to maintain their action. The existence, of the corporation, its organization or the creation of it under the statute, being shown, it might then be that color of office on the part of the plaintiffs — proof that they were acting as trustees of the church or were such de facto, would suffice. But it must be shown that there was a corporation of which the plaintiffs claimed to be the trustees. This was not done either by proof of organization under the statute or by proof of user. The former was the only proof attempted and it signally failed. The certificate introduced in evidence did not show that the notice of the time and place where the election would be held
Proof of these facts, made necessary by the statute in order to create the corporation, was not, if any such facts ever existed, otherwise supplied or offered to be. These were under any, even the most liberal, rule to be applied in favor of religious corporations, fatal defects in the proofs to show an organization of the church or society as a body corporate under the statute, the provisions of which, to attain that object, must, to say the least, be substantially complied with. It is of the substance of of the proceeding that the election be publicly notified by a person having authority under the statute, and on the Sabbaths named in it, otherwise it is' as if no notice were given and the members and hearers may disregard it. It is also of the substance of the proceeding that the election be held at the church or meeting house, or other place where the congregation statedly meet for divine worship. These provisions are intended to secure certainty in the notice, and certainty in the place of election, so as to give all members or hearers entitled to vote an opportunity to be present at the election, and to express their views or declare their preferences in that way. They are designed to secure fairness and to prevent fraudulent or improper practices in the election, and are, therefore, imperative in their .character and not be disregarded or dispensed with by any latitudinary rules of construction.
The certificate likewise failed to show a compliance with the statute by the election of at least three trustees, unless the ■election of the officiating priest as “ president of the trustees ” is to be regarded as an election of him to the office of trustee. Without this, there were but two trustees elected, while the
There is also, we think, much force in the other view taken or suggested by the learned judge of the circuit court, in his opinion, that, although there was a corporation and the plaintiffs the trustees, yet, it appearing that a majority of the congregation or members of the society were in favor of the removal of the church edifice and other buildings, equity would not interfere by injunction to stay or prevent such removal at the suit of the trustees. Doubtless, in that case, as argued by counsel for the plaintiffs, a legal expression of the will of the corpo-rators could only be obtained at a corporate meeting or election regularly called; still, it being clearly established in evidence in a court of equity that a majority of the corporators were in favor of such removal, and opposed to the action of the trustees, that court might not await such legal expression of the corporate will of the members before dismissing the bill. The trustees are the mere agents of the corporators, or of the majority of them, to carry out and give effect to their wishes as to all matters within the scope and purposes of the corporation, or which it may lawfully do, and the granting of the writ of injunction always rests in the .sound discretion of the court.
A proper consideration of these principles might, therefore,
; By ike Court. — Judgment affirmed.