Torrey v. Baker
83 Mass. 120
Mass.
1861
Check Treatment
Merrick, J.

All the parties to this suit are members of the “ Union Fire Society in Beverly.” As it is a voluntary association, the property belonging to it is in the joint ownership of its members. They have consequently a right to manage, control and dispose of it at their pleasure; but this power must be exercised subject to the provisions and stipulations of the contract or agreement under which it is held. These are to be found in the articles of their constitution, to which each member of the society has individually assented. The constitution has been from time to time changed since it was originally adopted, but in a manner apparently satisfactory to all parties, and to which no objection is suggested. The articles which were adopted in 1842 are those which are now in force. By one of them it is provided that if any member shall be reduced in his circumstances by fire, the society shall consider his case, and grant *123him such relief from its funds “ as to them,” that is, to its members, “ shall appear just and reasonable.” And the like privilege and advantage is also extended to the widows of deceased members. Under this provision, it belongs exclusively to the society to determine, in the first instance, whether any case has arisen for its interposition, that is, whether any member has in fact been reduced in his circumstances by fire; and secondly what shall be the amount of relief which in such case shall be afforded to him. This is an exercise of the discretionary power of the members over the property belonging to the society, within the express right reserved to them in relation to the disposition of it. No provision is made for perpetuating the existence of the society beyond the will of its members for the time being, nor as to the appropriation of its funds in the event of its dissolution. But, by necessary implication from the provisions of article 14th of the constitution, alterations or additions to the articles may be made at the annual meeting of the society in the month of January, by the vote of two thirds of the members then presént. This article respecting alterations and amendments admits of the adoption by the society of any rule for the disposition of its property wholly different from that which before existed; and consequently it allows that provision be made, in the manner prescribed, for the equal distribution of it among all its members and widows of deceased members, instead of appropriating the whole or part of it for the relief of those individuals who may have been suffering from a particular calamity. But until such alteration is made at the annual meeting of the society in the month of January, by a vote of two thirds of the members then present, the appropriation of its property is restrained, by the provisions of article 11th, to the relief of members and widows of members who suffer losses by fire. The vote which was passed at the meeting in January 1859, though not upon a direct proposition to alter the articles of the constitution upon the subject, amounted, in substance, to the same thing and might possibly have been construed as making, by necessary implication, an alteration according to the terms of the vote. But it was not adopted by a two thirds vote of the mem*124bers present at the meeting; and therefore was ineffectual to change the existing provision in the constitution of the society, or to authorize the distribution of its property .in the manner proposed. The votes of the four persons who were not present at the meeting, but who afterwards presented a written request to be allowed to record their votes, could not be counted upon the question of the adoption of the vote of the society for the distribution of its effects. By the articles of the association, the right of determining upon changes and alterations is confined exclusively to the persons actually in attendance and present at the annual meeting.

It follows from these considerations that under the vote passed at the January meeting, by a number of ballots less than two thirds of the members then present, the property of the society cannot be divided and distributed to the persons and in the manner and proportions proposed in it, and consequently that the temporary injunction heretofore granted must be made perpetual. But this is to be without prejudice to the rights of the members, at a future annual meeting, to pass votes by the prescribed majority, adapted properly to carry the wishes of the society into effect. The most regular way certainly would be, first, to alter the article in the constitution in such manner as to admit of a distribution of all the property of the society according to the will of the society; and afterwards to pass suitable votes to carry such will into effect. As the object of the present bill and proceedings under it is to protect the rights of all the members, and is equally for the benefit of the complainants and respondents, the injunction heretofore granted as prayed for will be made perpetual, but no costs allowed to either party.