136 Minn. 438 | Minn. | 1917
Two proceedings, by information in the nature of quo warranto, were instituted to test the title of defendant to the' office of vice good Samaritan in the order of Modern Samaritans, a fraternal beneficiary order. One was commenced by the relator Gall, as a claimant of -the office, the other by the relator Coulter, as a beneficiary member of the order.
The head office of the order is at Duluth. It has local bodies called ' subordinate councils. The membership of each state or jurisdiction may have a grand council, and over all is an imperial council.
Dp to 1913 the imperial council was composed of certain men specifically named, certain officers ex officio, representatives from each grand council and representatives selected by a convention of delegates of subordinate councils in jurisdictions having no grand council.
Meetings of the imperial council are biennal. At the meeting of 1913, Gall and Barnes were candidates for the office of vice good Samaritan. Barnes was elected by a majority of two. It is now claimed by both relators that the election was void in that the meeting was not a legal meeting.
The two cases were tried together. The court found in favor of Barnes. The evidence is not returned. We have before us only the pleadings and the decision of the court. The only question on this appeal is, do the findings of fact sustain the conclusions of law ?
These facts constitute a voluntary surrender and abandonment of the office by Gall, and, regardless of the validity of the election, he is as effectually out of office as if he had formally resigned. State v. Windom, 131 Minn. 401, 404, 155 N. W. 629.
The jurisdictions of Wisconsin and Forth Dakota each had a membership of less than 250 and neither had a grand council. It may be assumed that no opportunity was afforded to representatives from these jurisdictions to sit in the imperial council meeting of 1915. We are of the opinion, however, that, from the fact's found, it must be held that, at the 1913 meeting, the constitution of the order was so amended that no representative from either of these states was entitled to sit in the imperial council. Under the constitution each jurisdiction has one representative for every 500 members or major fraction thereof. Prior to the 1913 meeting, section 2 of article 3 of the constitution provided further that each such jurisdiction should in any event have at least one member. Bespondent claims that at the 1913 session an amendment was passed striking out the provision for “at least one representative.” Since neither state had the required “major fraction,” this change, if made, deprived them of the right to have a representative at the 1915 meeting.
The findings of the court were twice amended. Finding number six (6) as last amended is that the above mentioned amendment to the constitution was passed, but that “by inadvertence and mistake of the journal secretary who took the minutes of said meeting, the said amendment was not recorded therein nor was the amendment shown thereon as the same was adopted.”
The question is whether an amendment adopted but not recorded upon the minutes is operative. The question is settled in this state. It was held in Flakne v. Minnesota F. M. Ins. Co. 105 Minn. 479, 481, 117 N. W. 785, that the adoption of an amendment to corporate by-laws may be shown by parol where it does not appear that there has been a record, and there is no requirement, charter or statutory, that such matter should be recorded. See also Fletcher v. Chicago, St. P. M. & O. Ry. Co. 67 Minn. 339, 343, 69 N. W. 1085; State v. Guertin, 106 Minn. 248, 252, 119 N. W. 43, 130 Am. St. 610; Traxler v. Minneapolis C. & L. Co. 128 Minn. 295, 150 N. W. 914; Schell v. Second Nat. Bank, 14 Minn. 34
This is in accordance with the general rule that, in the absence of some statute to the contrary, you may prove the acts of associations or corporations as you do the acts of individuals, and that, unless the act to be proven be an integral part of some transaction required by law to be in writing, the act may, in the absence of written record, be proved by parol. 4 Wigmore, Evidence, § 2451. There is a statutory requirement that a certified copy of all amendments to the constitution of a society such as this shall be filed with the insurance commissioner (G. S. 1913, § 3558), but no provision that the same shall be recorded in the minutes.
We do not consider the propriety of contradicting the recitals of minutes of the meetings of a corporation or society when they are regularly kept and recorded. The finding of the court is, in substance, that, in the matter of this amendment, no record was made at all.
Order affirmed.
Counsel for appellant on motion for reargument again insist that the question in the case is whether oral evidence may be received to contradict the written record of a corporate meeting. In our view of the case this question is not presented.
It seems quite clear that the second amended finding numbered 6 superseded both the original and the first amended finding numbered 6, and it is the only finding upon the subject matter therein contained.
But if both amended findings stand, there is nothing in them to indicate that the unrecorded vote found by the court was upon the same motion as the recorded vote previously found. The findings indicate the contrary. Both amendments purport to amend the same section of the constitution but not in just the same particulars. The second amendment, if adopted, amended the first. Both might have been adopted at different times during the same session. The court finds that both were adopted, and we have nothing but the court’s findings before us.
Rehearing denied.