Opinion of the Court in the Case of the Elm Street Synagogue, New York.

In our last number we promised to give in the present the opinion of the Supreme Court of New York in regard to this unfortunate affair, that all interested might form their own opinion. We will merely state in explanation that Mr. Phillips was an old trustee, and held over for some alleged informality in the election. Mr. Hart was elected by the inspectors refusing to receive the votes of certain persons who claimed to be members under the law of the state. Mr. Ritterband, though he received less votes than Mr. Hart, contended that he was deprived of his election by illegal means, in the refusal of the above votes. Messrs. Hart and Phillips belong to the secession party; Mr. Ritterband on the contrary to the present occupant of the Elm Street Synagogue. To all appearance, though the election of Mr. H. was sustained upon legal grounds, still the principles for which Mr. R. contends were sustained. But our readers can judge just as well as we can, and we communicate the opinion merely as a part of the history of the day.

Ed. Oc.

Supreme Court.—The People ex rel. Henry J. Hart v. John D. Phillips and Leon M. Ritterband.

By the Court—Beardsley, J. This information was filed in December, 1844. It alleges that Phillips, one of the defendants, had usurped the office of trustee of the religious society incorporated by the name of B’nai Jeshurun, and that for forty days and more, then last past, he had unlawfully held and executed said office. The holding is confessed by Phillips, but he denies the usurpation; and in justification, he sets up in his plea that having, in 1841, been duly elected to and taken upon himself the office of trustee in said corporation, for a term which expired on the 11th day of October, 1844, he held over and continued in said office from the day last mentioned, for the causes stated and set forth in said plea. This he alleges he had good right to do, under the authority of an act passed the 15th day of February, 1826, [Laws 1826, p. 34; 3 R. S. 215.] I do not regard it as at all clear that this statute applies to such a case as is attempted to be made by the plea; but this question was not made on the argument, and for the present purpose it is unnecessary to express any final opinions on it. Conceding the applicability of the statutes, the plea is still defective; for it fails to show that the defendant had any legal right to hold over after the 11th of October, when his regular official term expired.

The fact that no person had been chosen in his stead was indispensable to the right set up by Phillips; for without this it cannot he pretended the statute authorized him to hold over. But such a case is not made by his plea. To be sure it alleges that an election was held on the 11th of August, 1844, to supply the vacancy which was to occur the succeeding October, by the expiration of Phillips’s term of office; and it aims to show that no person was then chosen for that purpose. Let this be conceded (although it is only conceded for the sake of the argument, as the plea does not show it), but it by no means follows that another election was not held and a choice made previous to the 11th of October. An election might have been called and held on any day not less than six days before the vacancy was to occur. [Act of 5th April, 1813: 3 R. S. 209, § 6.] Phillips sets up a right to hold over after the expiration of his regular official term, and on that ground attempts to justify his continuance in the office. He was therefore bound to show clearly that no one had at any time been chosen to succeed him. The plea fails to do this, and is therefore bad. The people are accordingly entitled to judgment of ouster against the defendant Phillips. [2 R. S. 585, § 48.]

The principal question is between Hart and Ritterband, each of whom contends that he was duly chosen a trustee in the place of Phillips, at the election held on the 11th of August, 1844. The information alleges that Hart was chosen on that occasion (2 R. S. 582, § 30, 31), but that Ritterband claims to be entitled to the office; for which cause he is made as party defendant [§ 45]. Ritterband in his plea denies that Hart was chosen, and alleges that he was himself elected; for which cause he admits that he claims to be such trustee.

In his plea, Ritterband states that an election was duly held on the 11th of August, for the choice of a trustee in the place of Phillips; and he admits that of the votes received by the inspectors, Hart had a greater number than himself; although he alleges that a large number of votes were offered to be given for him [R.] by qualified voters, and which, had they been received, would have given him a number exceeding those given and received for Hart; but he states that said votes, so offered for him, were rejected by the inspectors, who refused to receive or canvass them, for a cause which is charged by him to be illegal.

There are various replications to this plea, some of which are demurred to; and thus the sufficiency of the plea is directly drawn in question.

It is not suggested in the plea that any of the votes given for Hart were by illegal voters; and of the whole number of votes given and received by the inspectors, the plea admits that a greater number were cast for Hart than Ritterband. This concession seems to me fatal to the claim that Ritterband was chosen at that election. Legal votes may have been rejected, so that none was rightfully chosen, and a new election would be proper; but certainly no one could have been elected who received a minority only of the legal votes which were actually given and received at the election in question. [19 Wend. 37: In the matter of the election of directors of the Long Island Railroad Co. Angell & Ames on Corp. 72.]

Judgment must therefore pass against Ritterband, as he shows no title to the office.

The only question which remains has reference to Hart, who is alleged in the information to have been duly chosen as trustee at the election of the 11th of August. That he was chosen is not in terms denied by the defendant Phillips; but this decides nothing, for it is directly traversed by the defendant Ritterband. His plea, although it fails to show that he was duly elected, is quite sufficient, as a denial that Hart was chosen. The election of Hart is therefore strictly in issue upon this plea, as it also is upon the fifth replication. Upon this issue the people hold the affirmative, and they are not entitled to judgment upon it unless the election of Hart is fully established.

Of the votes given and received by the inspectors of the election, Hart had a greater number than Ritterband; and if none but illegal votes were rejected, Hart must lave been duly chosen. But twenty-eight votes were offered to be given for Ritterband, which were rejected by the inspectors. If these had been received and allowed in his favour, he would have had a clear majority over Hart.

The issue has not been tried by a jury, but a stipulation in the nature of a special verdict has been entered into by the parties. By this certain matters are admitted.

1. “All the facts settled by the pleadings which terminate in demurrers.”
2. Sundry by-laws and other matters which are specified in the stipulation.

That clause of the stipulation by which all facts settled by the pleadings are admitted, is very liable to be misapprehended. The plea of Ritterband, so far as it assumes to show that he was chosen a trustee, is insufficient; and it can hardly be said with propriety that any facts are settled by such a plea, or by replications thereto, which are met by demurrers. At all events it is not unlikely that the parties and their counsel may have understood this branch of the stipulation somewhat differently from the court. This is one reason for not proceeding in the present case to a judgment on the alleged right of the relator Hart; nor ought that to be done until we are informed of the particular ground on which the twenty-eight votes were rejected. This does not clearly appear by the stipulation, as convenience at least requires that it should. In this proceeding the court are not bound to render judgment upon the right of the relator Hart, as they are upon that of the defendants. It may be done or omitted, “as justice shall require.” [2 R. S. 582, § 31.] And it seems to me it may with great propriety be left for final adjudication on a direct proceeding against him, if he shall think proper to enter into the office which will be left vacant by the judgment against Phillips and Ritterband.

But I would not have it inferred, from thus passing, over this branch of the case, that I think Hart was rightfully chosen a trustee. As presented, this part of the case seems to me equivocal in matter of fact; but if I rightly apprehend the ground on which the votes were rejected, I think the inspectors plainly erred in refusing to receive those votes.

By the third section of the act of April 5, 1813 [3 R. S. 207], any church, congregation, or religious society, may proceed to elect trustees, with a view to become incorporated, and at such election “every male person of full age, who has statedly worshipped with such church, congregation, or society, and has formerly been considered as belonging thereto, shall be entitled to vote.” But at subsequent elections, no person, although a member, shall be permitted to vote “until he shall have been a stated attendant on divine worship in the said church, congregation, or society, at least one year before such election, and shall have contributed to the support of such church, congregation, or society, according to the usages and customs thereof.” [§ 7.]

These sections prescribe the qualifications of electors, which, in brief, are—

1. Membership: no person can be an elector who does not belong to such church, congregation, or society.
2. He must have been for a year at least a stated attendant on divine worship in said church, congregation, or society.
3. He must have contributed to the support of the same according to the usages and customs thereof.

These qualifications can neither be abridged nor extended by any act of the trustees or of the corporators; but every person thus qualified has an incontestable right to vote at the election of trustees. The statute under which the incorporation was formed, is its constitution, and every act in violation of this paramount law is necessarily invalid. This is a well-settled principle of the common law, and is of universal application to all corporations. [Bl. Comm. 475; 2 Kent, 277, 293, 294. Angell and Ames on Corp. 267, 273, 281, 6, 7, 8; 7 Bing. R. 1, The King vs. Westwood; 3 S. and R. 29, The Commonwealth vs. Wodfa; 2 Green’s R. 222, Taylor vs. Griswold.] The same principle is recognised and affirmed by the Revised Statutes. (1 R. S. 599, § 1, 2, 3.) Every corporation has power to make by-laws; but they must be consistent with its charter, or they will be invalid. This power to make by-laws is sometimes vested in the whole body of the corporators, and in other instances in a select body. The act under which this was formed expressly authorises the trustees “to make rules and orders for managing the temporal affairs of such church, congregation, or society.” [3 R. S. 208, § 4.]

I think it unnecessary here to inquire whether the body of this corporation can make by-laws upon any subject, or whether the power is vested exclusively in the trustees; for neither can have any authority to make a by-law which contravenes the act under which the corporation came into existence.

Without therefore adverting in detail to the by-laws referred to in the stipulation (and upon which it would seem that twenty­eight votes were rejected), it may be sufficient on this occasion to observe, that as far as these by-laws required qualifications for the exercise of the right of voting not recognised in the statute, they were wholly unauthorized and of no force whatever. If the person offering to vote was a member, a stated attendant for the required period, and had contributed to the support of the society according to its usages and customs, he was a legal voter. He was not bound to comply with a by-law which declares that he must be especially admitted to the privileges of being an elector, or which requires him to pay any specified sum for that privilege. No such restraint can be imposed on the admission of members otherwise qualified to the right of voting. Indeed, the idea upon which these by-laws seem to have been framed and adopted—that persons may become members for the purpose of worship and contribution, and so far comply with what is usual and customary in the society, and still not be authorized to vote without special permission, and the payment of some fixed or arbitrary sum as a price for the privilege, is entirely fallacious. Membership, worship, and contribution carry with them as an inseparable incident, the right to vote; for every such member is necessarily an elector. If the twenty-eight voters were excluded for not having complied with such by-laws, the inspectors erred, and Hart was not duly elected.

I have assumed upon this branch of the case, that it is competent to attack and avoid election of Hart, by showing that, although he received a majority of the votes given at the election, still a large number of legal votes were offered for Ritterband and improperly rejected, and which (had they been received) would have given him a clear majority over Hart. But it may admit of serious doubt whether an election can thus be invalidated. The principle has not been examined, and no opinion is intended to be expressed upon it. This and other questions, which have been adverted to, may hereafter arise on a direct proceeding against Hart, when it will become necessary to pass upon them.

The people are entitled to judgment against Phillips and Ritterband; but no judgment is given as to the alleged right of Hart. (A copy.)

H. Denio, State Reporter, Per H. G. Bronson.

The Elm Street Congregation, New York.

It is with extreme hesitation that we recur to this subject; but an appeal has been made to us by the persons who think themselves injured by the letter of the Rev. Mr. Isaacs, in our September number, that we should admit them to reply to the same, that we are reluctantly compelled to touch upon the subject again. We had hoped that all parties would be satisfied to let the matter drop; but we are sorely grieved to find that we are deceived in this hope. To proceed then as briefly as possible, the present worshippers of the Elm Street Synagogue contend as a justification for resolving to dismiss Mr. Isaacs that he imprudently consulted the wishes of the trustees and Parnass of the party opposed to the admission of the votes at the last election spoken of in the Opinion of the Court; that hence they were exercising their office without due authority; and that the persons refusing to pay to the treasurer and collector appointed by these, were nevertheless at the time ready to discharge their indebtedness into the hands of a third party, to be held in trust for the congregation at large. They moreover say that the law books were removed from the Synagogue after they found that it had been barricadoed and nailed up on the Sabbath day; and that Mr. Isaacs was formally suspended on the conclusion of the Sabbath, so that he had no right to officiate on the Monday following. That whilst reading the service they would not interrupt him; but when the law book was brought in by one of the trustees, it was given to a gentleman whom the Parnass had designated to read therefrom. They deny that any assault was designedly made upon Mr. Isaacs; and that if any was made, it must have been accidental, in the confusion incident on the above occurrence, to wit: when Mr. Isaacs, on returning to the desk, found it occupied by another. The above is a condensed statement, drawn from the communication furnished us; and it evidently proves that, under the existing excitement, it was next to impossibility to arrive at any exact knowledge of the course of events which followed rapidly on one another. There can be no doubt thatour friend, the Rev. Mr. Isaacs, suffered a great wrong between both contending parties, and that he would have been condemned by one or the other let him have acted as he would. But equally clear is it that the persons now opposed to him did not mean to desecrate the house of God, nor to do him any bodily injury; and still, in the contest things took place which we are sorry to see recorded in our magazine, and a minister whom all revered has been assailed, if not actually at least incidentally. At the same time the present occupants of the Elm Street Synagogue contend that they are not wanting in respect to the teachers of our religion, and they are anxious to obtain soon a suitable person to be to them what Mr. Isaacs has been. As this wish is so laudable, and not a little flattering to Mr. Isaacs that his absence is felt, and not to be supplied by any one on the spot, we have unwillingly consented to let the party in question appeal to the public for a partial justification, and to express their determination that whoever may come among them shall not have cause to regret his being the minister of their congregation.

We have one word to say in parting: enough has been said on this unfortunate subject to satisfy all concerned; mutual crimination can lead to no good result; hence we must request that no more articles of the kind will be sent to us. At the same time we have no hesitation in saying that, if the parties are not satisfied, and think that their reputation requires defence, we will admit one more for each; but there must be nothing which is merely reflecting upon motives; we have only to deal with facts, and not with surmises.