continuous usurpation.1 And if, by the terms of the charter, the franchise is declared to be forfeited absolutely on failure to perform a condition, the doctrine of waiver by subsequent legislative recognition is inapplicable.2 and for a year continued to exercise its franchises, and it was held that it should not be deemed to have forfeited them. State v. Crawfordsville & Shannondale Turnpike Co., (1886) 102 Ind. 283. 1 People v. Stanford, (1888) 77 Cal. 360. 2 State v. Fourth N. H. Turnpike Co., 15 N. H. 162. CHAPTER IV. CORPORATE MEMBERSHIP, AND HEREIN OF ITS NATURE AND OF THE RIGHTS INCIDENT THERETO. § 60. Of membership in companies | § 72. Of the power to admit new members. 73. Extraordinary powers of the 74. Direct participation in corpo- 77. (c) Grounds upon which the 78. (d) of the member's remedies 79. (e) The remedy by mandamus. 82. Of the rights and powers inci- § 60. Of membership in companies and associations not having capital stock.-No general rule can be laid down as to what constitutes membership in companies or associations not having capital stock. The requisites of membership are usually prescribed in the charters or by-laws of such organizations. In the case of religious organizations a distinction is 1 The constitution of a charitable corporation provided that any per son could apply for admission by paying an admittance fee, and, when drawn between membership in the spiritual body and membership in the secular society or corporation connected therewith.1 It is not essential, however, to the legal existence of a society claiming to be a church and engaged in the lawful promotion or defense of religion that it be connected with any other society, civil or ecclesiastical, incorporated or unincorporated.2 Questions in regard to the eligibility of applicants for admission or in regard to the expulsion of members from the spiritual body are determined by the several creeds, articles or confessions of each sect or denomination, and are beyond the cognizance of the law. Accordingly, mandamus will not lie to reinstate a person expelled from the ecclesiastical organization, the expulsion not being an act of the secular corporation and no property or other civil rights being affected thereby. But membership in the secular society may consist declared elected, could, after signing the constitution, vote at all meetings and be eligible to office; and that each member should pay a certain amount yearly to the corporation, and it was held that the signing of the constitution was not a prerequisite to membership, and that an action would lie by the corporation against a member who had not signed for his yearly dues. United Hebrew Benevolent Assoc. v. Benshimol, 130 Mass. 325. Where active members of a certain corporation were exempt from jury duty, mere ownership of a certificate of membership to which only active members were entitled was held not to be conclusive. State v. Primm, 50 Mo. 87. 1 Sale v. Baptist Church, (1883) 62 Iowa, 26; s. c. 49 Am. Rep. 136; Holt v. Downs, (1877) 58 N. H. 170; Hardin v. Baptist Church, 51 Mich. 137; s. c. 47 Am. Rep. 555, and cases there cited. Cf. Livingston v. Trinity Church, 16 Vroom, 230. The temporalities of the church are in the corporation, which acts through its trustees, and its action is in ac cordance with the wish of the majority of the society, and is presumed to be so when within its legitimate powers. The pewholders' rights are subordinate to such action. They have no title to property. Erwin v. Hurd, (1884) 13 Abb. N. Cas. 91; Henry v. St. Peter's Church, 2 Edw. 608; In re Presbyterian Church &c. 3 Edw. 155; Voorhees v. Presbyterian Church &c. 8 Barb. 137, 152; s. c. 17 Barb. 109; Abernethy v. Church of the Puritans, 3 Daly, 1, 7; Cooper v. Presbyterian Church, 32 Barb. 222, 226; Kincaid's Appeal, 66 Pa. St. 411; s. c. 5 Am. Rep. 337. Accordingly, a pewholder, as such, cannot prevent the church corporation from remodelling the church edifice, or from selling it for the purpose of removal. Erwin v. Hurd, (1884) 13 Abb. N. Cas. 91. 2 Holt v. Downs, (1877) 58 N. H. 170. 3 Richardson v. Union Congregational Soc., (1883) 58 N. H. 187; Sale v. Baptist Church, (1883) 62 Iowa, 26; s. c. 49 Am. Rep. 136. 4 Sale v. Baptist Church, (1883) 62 Iowa, 26; s. c. 49 Am. Rep. 136. in regular attendance upon its meetings and in contributing to its support. Of this the law will take notice and will pass upon the rights, duties and liabilities incident thereto. In 1 Cammeyer v. United German persons together with their families Lutheran Churches, 2 Sandf. Ch. 186. it was held that sons even after at Cf. First Parish v. Stearns, 21 Pick. taining majority were included 148; Angell & Ames on Corporations, within the meaning of the word § 114. People v. Tuthill, 31 N. Y. family, until they should transfer 550, where stated attendance upon their membership to some other orworship during a year being requi- ganization. Bradford v. Cary, 5 Me. site, it was held that regular as dis- 339. Where no one under eighteen tinguished from occasional attend- years of age was entitled to vote in ance, and personal attendance as church meetings, it was held that distinguished from the attendance participation in the sacrament after of the family, was essential; and that the age of eighteen years was requino amount of contribution to the site. Weckely v. Geyer, 11 Serg. support of the church would be ac& R. 35. Under a statute declaring cepted in lieu thereof. In Juker v. that the electors of Episcopal Commonwealth, 20 Pa. St. 484, it churches shall consist "of all who was held that an annual contribu- shall have belonged to such church," tion of a certain amount being re- N. Y. Laws of 1801, ch. 79, § 1, it has quired, a contribution of that amount been held that the meaning of the shortly before a meeting and elec- word "belonged" was a mixed question did not entitle the contributor tion of law and of fact which in each to vote. Where a church charter case must be left to the jury to dedeclared that "the subscribers and termine. People v. Keese, (1882) 21 such others as shall hereafter be ad- Hun, 438. In Bates v. Houston, mitted or become contributing mem- (1882) 66 Ga. 198, it was held that a bers," should comprise the corpora- wrongful seizure and retention of tion, and that "any member who the property of a church having a has contributed to the support of the congregational form of government, church one year previous to the elec- by a minority of the members tion about being held, a sum not less against the wishes of the majority, than $2.00 for a pew or a portion of is a ground for equitable interfera pew," should have a vote. The ence; and that relief will be granted society afterwards gave up the prac- at the suit of a few representing othtice of renting pews, and announced ers having a common interest. free sittings, expenses to be met by Where the constitution of a religious contributions; and it was held that corporation provides that congregathe change was not an infraction of tion and pastor shall join some the constitution, and that renting or synod, and the pastor withdraws holding a particular pew or seat was from the synod to which both have not essential to membership. Com- belonged, and with which a majormonwealth v. Morrison, 13 Phila. ity of the congregation vote to re(Pa.) 135. In a case in which the main, the majority have a right to membership of a religious society control the church property. Dreswas declared to consist of certain sen v. Bramlier, 56 Iowa, 756. mutual insurance societies, membership consists in being insured thereby. Mandamus will not lie to compel a private corporation to admit to membership any qualified person making application, although his business may suffer by reason of his exclusion therefrom. But when under a statute, membership in a county medical society is necessary to the legal practice of medicine in the county, the society is quasi public in its nature, and mandamus will issue to compel the admission of a duly qualified applicant for membership.3 § 61. Of membership in companies having capital stock.— Membership in companies having a capital stock consists in the ownership of one or more shares thereof. This ownership may be acquired either by signing the articles of association for a specified number of shares, or by a contract of subscription to the capital stock, either before or after the 1 Sullivan v. Mutual Ins. Co., 2 Mass. 318; Mitchell v. Lycoming Mutual Ins. Co., 58 Pa. St. 402; Georgia &c. Life Ins. Co. v. Gibson, 52 Ga. 640; Cumings v. Sawyer, 117 Mass. 30; "Benefit Associations," an annotated case, by J. O. Pierce, 22 Cent. L. J. 274. 2 People v. Holstein Freisian Assoc., (1885) 16 Abb. N. Cas. 307. The by-laws of the defendant association provided that the cattle of members only should be admitted to registration. The market value of unregistered cattle was less than that of the registered. But it was held that the association, although organized for the public good, was a private corporation, and that therefore mandamus would not lie. Cf. As to injunction to restrain admission to membership, Thompson v. Society of Tammany, (1879) 17 Hun, 305. People v. Medical Soc., 32 N. Y. 187, where it was held that the court would not interfere merely because of the applicant having previously advertised as having especial skill in the treatment of certain diseases, a custom condemned by the code of professional ethics adopted by the society, but having no force as a general law nor as a rule of private morality, and neither the general statute of incorporation nor the bylaws of the society making antecedent observance of its regulations a condition of membership. 4 Upton v. Hansbrough, 3 Biss. 417; State v. Ferris, 42 Conn. 560; Gilbert v. Manchester Manuf. Co.. 11 Wend. 627; Sargent v. Franklin Ins. Co., 8 Pick. 90; Overseers of the Poor v. Sears, 22 Pick. 122; Downing v. Potts, 3 Zab. 66; Gregory v. Dubois, 3 Sandf. Ch. 466; Agricultural Bank v. Burr, 24 Me. 256. Cf. Concordia Savings & Aid Assoc. v. Read, (1883) 93 N. Y. 474, construing N. Y. Laws of 1881, ch. 122, § 3. As to the duties incident to ownership of shares, see "Duties of Stockholders," 3 Cent. L. J. 620; same article, 24 Pitts. Leg. J. 31. 5 Hamilton &c. Plank Road Co. v. Rice, 7 Barb. 157. "The situation of a person who has signed the memorandum of association of a limited |