Richardson v. Society , 58 N.H. 187 ( 1877 )

Complaint is made that the amendment of by-law thirteen, requiring a two-thirds vote for the admission of new members, was not properly and legally enacted, because its passage was not obtained by a vote of two thirds of those present, according to by-law twelve requiring a vote of two thirds of the members present to alter or amend the bylaws of the society. No objection appears to have been made at the meeting to the mode of taking the vote on the new by-law, or to the declaration and publication of its passage. A common mode of voting in public and corporate assemblies is viva voce, or by a show of hands; and when, in answer to a call by the presiding officer for votes for and against a question stated, no response is made, the vote is declared in the affirmative unless objection is made at the time. Cush. Parl. Law 383, 1793. If silence of the whole assembly is equivalent to a unanimous vote in the affirmative, silence of a part of the members not voting cannot be counted against the express voice of another part voting. If those present having the right and opportunity to vote refused to exercise it, and witnessed, without objection, the passage of a by-law by the usual mode of voting, counting, and declaring, the objection of an insufficient or invalid vote, by reason of not counting non-voters present, could not afterwards be made. Refusing to vote, and neglecting to make known their presence and its power to defeat the by-law, they virtually sanctioned the acts of those who voted, and waived all objection to their validity. Wardens of Christ Church v. Pope, 8 Gray 140, 143. The objection is not one of a miscount of votes, or of a false declaration and record, but of an omission to recognize those who refused to be recognized.

But the question of the adoption of the amendment by a two-thirds vote of the members present is immaterial. By-law twelve was no part of the charter or constitution of the society, and not a law for the guidance of its officers and agents. It was an enactment made by one meeting of the society to govern the proceedings of future meetings, and was inoperative beyond the pleasure of the society acting by a majority vote at any regular meeting. The power of the society, derived from its charter and the laws under which it was organized, to enact by-laws, is continuous, residing in all regular meetings of the society so long as it exists. Any meeting could, by a majority vote, modify or repeal the law of a previous meeting, and no meeting could bind a subsequent one by irrepealable acts or rules of procedure. The power to enact is a power to repeal; and a by-law, requiring a two-thirds vote of members present to alter or amend the laws of the society, may itself be altered, amended, or repealed by the same power which enacted it. Angell Ames on (Corp. 459; Com. v. Mayor of Lancaster, 5 Watts 152, 155; Wardens of Christ Church v. Pope, 8 Gray 140, 142. The society, by a majority vote, might repeal or amend by-law twelve. By a like vote, they might adopt any mode for the admission of members. The evidence relating to the validity of the new bylaw was immaterial, and the exception to its exclusion is overruled.

The action of the society, in refusing to admit some of the plaintiffs to membership, cannot be controlled or restrained by an injunction of the court. The right of admission to membership is voluntary and mutual between the society and individuals desiring to become members. No one can be compelled to join the society or remain a member in it against his wish, nor can the society be compelled to admit any one against its will, fairly expressed at a regular meeting by a majority vote. This principle is inherent in every voluntary association. First Parish in Sudbury v. Stearns, 21 Pick. 148; Leavitt v. Truair, 13 Pick. 111; Taylor v. Edson, 4 Cush. 522. The plaintiffs who are not members of the society have no interest which gives them a right to interfere, and those who are members cannot claim the right, against the expressed will of the majority, to interfere in favor of the others. Complaint is not made that any property rights, personal privileges, or corporate franchises are endangered. No trust is violated or charitable fund diverted. The fraud of concealing the books is not alleged to be the fraud of the defendants; and the refusal to admit new members, except by a two-thirds vote, was a lawful exercise of a society right. No injustice has been done which the equity powers of the court can remedy, and the grounds of complaint are of a character so intangible as to elude the grasp of judicial cognizance.

Bill dismissed.

STANLEY, J., did not sit.