The State ex relatione Abraham Ottolengui and others vs. G. V. Ancker and others.
Where neither the charter nor by-laws of a corporation prescribe any particular form in which the members may resign their rights of membership and their resignation be accepted, such resignation and acceptance may be implied from the acts of the parties.
The acts of the defendants, members of a religious Jewish corporation, were given in evidence to prove an implied resignation of their rights of membership. In reply, and in order to explain their acts and shew that they did not amount to a resignation, but merely to a temporary withdrawal from the congregation, the defendants offered to prove that the majority had made alterations in the established ritual of the congregation, and had changed some important articles of the aacient Jewish faith. This testimony was rejected by the presiding Judge. Held, that it was properly rejected.
An article in the by-laws of a religious corporation provided as follows; the President “shall convene the board of trustees at least *246once in every month, and may call extra meetings whenever in his opinion, or in the opinion of three members of that body, it shall be deemed necessary for the interest or welfare of the congregation.” Another article provided that a majority of the hoard might admit new members. The President, cn application by four members of the board, refused to call a meeting thereof, after which a majority of the board convened without such call, after giving the President notice of the time and place of their intended meeting. Held, that the board thus convened had no power to elect new members of the corporation, and that all their acts were illegal and void.
Before Wardlaw, J. at Charleston, Spring Term, 1844.
The report of the presiding Judge is as follows :
“The relators, forty-five in number, by leave of the court first had, and in the name of the Attorney General, filed their information, in which, charging that the defendants, forty-one in number, had intruded themselves into the enjoyment of the liberties, privileges and franchises •of members of a body corporate called the Charleston Jewish Congregation of Beth Eloihim, or House of God, they prayed process, requiring the defendants to answer by what warrant they claim to have- and enjoy the said liberties, privileges and franchises.
“By their plea, the defendants, denying that they had intruded themselves as charged, alleged that they severally were admitted lawful members of the said body corporate, and in virtue of their admission, claim to have and enjoy the liberties, privileges and franchises aforesaid.
“The relators traversed the admission of the defendants as members, issue was joined, and so the question to be decided was, whether the defendants shewed that they were members of the said body corporate.
“The defendants contended that they were members,—
“1. By virtue of the original admission, which twenty-two of them had severally obtained at various times between 1803 and 1840.
“2. By virtue of admission granted by the Board of Trustees of 6th May, 1843, which, as to twenty-two, was a re-admission after they had withdrawn, subsequent to the *247meeting of 26th July, 1840, when the organ was established, and as to the remaining twenty-three, there was an original admission.
“3. By virtue of an admission granted by the body corporate, at a general meeting of the congregation held 15th May, 1843, which was either a confirmation of the above act of the Board, or of itself an effective proceeding, granting re-admission to twenty-two, and original admission to twenty-three, as above.
“The relators insisted that the twenty-two defendants had voluntarily resigned the rights of membership obtained by their original admission, and could not resume them without regular re-admission.
“That the act of the Board of Trustees was void, because the President had not called a meeting of the trustees, and so the trustees who met did not constitute the Board.
“And that the alleged meeting of the congregation was irregular, and not a meeting of the body corporate, because it had not been called either by the President or by the Board of Trustees, regularly organized, and did not consist of all the corporators, or of a majority of them, but a bare quorum, sufficient to bind the majority only where all the prescribed forms had been observed.
“The only witness examined was Solomon Yalentine, the Secretary and Treasurer of the corporation, and of the Board of Trustees, who was first elected in 1837, and, except four years of absence, has been in office ever since.
“From the books which he produced, and his remembrance of facts, the history of the case was obtained.
“The congregation had existed prior to 1784, as an incorporated society, called the ‘Kaal- Kadosh Beth Eloihim.’ Some of the old books are lost, but one, yet in the possession of the congregation, shews that on the 15th August, 1784, the congregation adopted the ‘Minhog Sephardim,’ (viz: the Portuguese Ritual,) as practised in London and Amsterdam.
“In 1791 the congregation was incorported (8 Stat. 162,) by the name of the ‘Charleston Jewish Congregation of Beth Eloihim, or House of God.’ By the charter, the corporate powers usually conferred upon religious societies *248were given, with nothing peculiar, except that the grant of power to make by-laws, awkwardly expressed, seems to give to the congregation the power of making such bylaws as shall be ‘agreed upon by the adjunta of said congregation, or meeting of the elders thereof, chosen by the said corporation.’
“This phrase was first adverted to in the progress of the final argument, and was not at all explained by the testimony. It may be doubted whether by the adjunta was meant the Board of Trustees, or the meeting of the Yehedim, or voting members ; but if the former was meant, as the defendants contended, it seems not to be material in this case, as there is no doubt that the Constitutions of 183T and 1840, were both adopted by the congregation after they had been agreed to by the Board of Trustees.
“The charter was accepted 6th March, 1791, and a resolution of that day adopted'the fundamental law of the Kaal Kadosh Beth Eloihirn, and the by-laws then existing, until they should be repealed.
“About 1826, a disposition was manifested to make changes by distinguishing between the authority of the Bible and that of the Talmud, between the Mosaical laws and the Rabinnical, the written and the oral; and a portion of the congregation seceded, and formed a separate body called the ‘Reformed Israelites,’ having their own place of worship, but this body, had been dissolved, and their place of worship abandoned, before July, 1840, although none of the seceders returned to the congregation until after that time.
“By the earlier by-laws or usages, great power seems to have been given to the Parnass or President, and to the trustees, from and by whom he was chosen, but no record of the by-laws earlier than 1837 was produced. At a meeting of the subscribing members, held at the Synagogue 23d February, 1837, a collection of by-laws, called a Constitution was adopted, to which reference has been made.
“This Constitution contains thirty-four Articles, and I will endeavor to set down, in a condensed form, such portions of them as relate to the disputed proceedings, or to *249those parts of the subsequent constitution which are likely to be adverted to in the consideration of the questions involved in this case.
“ ‘Article 1. The congregation in Charleston, South Carolina, of Kaal Kadosh Beth Eloihim, or House of God, heretofore known under that title, shall be continued under .the same, according to the Minhog Sephardim, as always practised in this city. And in order to guard against innovations, it is hereby understood that it shall not be in the power, of any Parnass, or administration, to introduce any alteration in the mode of worship in the Synagogue, except such as may be specified in this Constitution.’
“ Article 12, forbids, under the penalty of their being deprived of becoming or remaining members of the congregation, all Israelites from combining to erect another Synagogue within five miles of Charleston, or from ‘becoming members of any society in which has been adopted, or shall be adopted, innovations in our sacred religion, alterations in the form of worship as practised heretofore, or changes in the Mosaical or Rabbinical laws.’
“By article 2, the government of the congregation is vested in the five persons then composing the Board of Trustees, ‘to hold their situations for life, with powers as will be hereafter expressed.’ ‘Should any vacancy occur in this body, either by death, resignation, or removal from the city,’ it shall be filled by the Yehedim, or voting members, electing by a majority of votes one of themselves to hold for three years, and any subsequent vacancy shall, in like manner, be filled for the remainder of the term of three years, so that, in the course of time, the election of all the Trustees may fall upon the same day. ‘On the second Sunday after Sabbath Nahamu, annually, an election shall take place among the ‘Board of Trustees,’ to be hereinafter designated and known only by this title, for one of their body to act as President or Parnass, for the term of one year, to preside as such from the first day of the ensuing Rossaunah; also an election for a Vice President or Parnass Segan, who shall be vested with all the rights and powers of the President only in cases of sickness or death, or on any occasion during his absence,’
*250“ Article 3, provides that all officers under pay shall be elected by the Yehedim, annually, except the Hazan, provided for in article 11. The votes to be received of Ye-hedim who have previously paid their dues for the three last quarters — none to be admitted to vote who are in arrears, except individuals to whom indulgence has been given by the board.
“Article 4, gives to the Board of Trustees ‘jurisdiction over all the concerns of the congregation,’ with limitations of the power of appropriation.
“ ‘ Article 6. All subscribing members of the congregation at the ratification of this constitution, shall be considered Yehedim, entitled to hold offices, and to vote. All individuals subscribing after the period herein stated, shall not be considered Yehedim until two years residence, and then must apply by letter to the Board of Trustees, a majority of whom being in his favor, shall entitle him to all the rights and privileges of an Yehid. This law contemplates natives as well as strangers.’
“ By article 7, all members of the congregation shall be obliged to subscribe annually, at least $15, and widows $5, towards^ its support. Seats in the Synagogue priced and regulated.
“ By article 8, the Board of Trustees is vested with the power of suspending officers under pay until their trial, and of imposing fines not exceeding $20; and of making rules and regulations, not inconsistent with the constitution, for the government of all officers, and of every person under pay.
“ ‘ Article 10. The Parnass, President, or Presiding Officer, shall be the sole director in and out of the Synagogue, and at funerals, and whenever service is performed, and on all other occasions relating to this congregation. All officers under pay shall be subject to his control. He shall convene the Board of Trustees at least once in every month, and call extra meetings of the same, whenever in his own, or in the opinion of three members of that body, it shall be deemed necessary for the interest of the congregation.’
“‘Article 11. All officers under pay of this congrega-*251íion, shall receive such compensation as the Board of Trustees shall think proper to allow, consistent with its circumstances.’
“ ‘ No Hazan shall ever be elected in this congregation permanently, to said office, unless, in addition to all requisite ability in Hebrew learning and scholarship, he be also completely qualified in the English language.’
“ ‘ It is hereby made his duty, upon the Sabbath when the Musaph is ended, to pronounce a discourse, and offer up a suitable address to the Almighty, both in the English language ; and to say the remaining service as customary,. His election at first shall be for the limited term of two years only, after the expiration of which period, and having faithfully discharged the duties of his station, his election for life may be gone into, and during good behaviour he shall be continued Hazan of this congregation.’
“ Article 12, besides forbidding connexion with another Synagogue, or Jewish Society, as above mentioned, provides as follows : ‘ Any Israelite desirous of becoming a member or Yehid of this congregation, shall make application by letter, addressed to the Board of Trustees, who shall consider his case, and determine upon what terms he shall be admitted.’
“ ‘ Article 15. Should any law of this constitution prove detrimental to the interest of this congregation, or require alteration, or if any additional law be found necessary, the Parnass and Board of Trustees, on petition therefor by one-third of the subscribing members, shall convene the people to take into consideration such proposed alteration or additional law ; which, if adopted by three-fourths of the members present, and not otherwise, shall become binding, and of full force in this congregation.’
“ Article 31, gives to any member of the Board of Trustees the right to enter a protest against any proceeding of the Board.
“ Article 34, provides various fines, and ‘ if such fines shall not be paid within twelve months, the parties shall be deprived of all their rights and privileges in this congregation.’ Amongst the fines is one of $5, for a member not attending a meeting of the congregation, in case of a *252constitutional question to be discussed. No fine is provided for not attending an ordinary meeting of the congregation, nor is any special provision made for the calling of such a meeting.
“ The practice under the constitution of 1837, as to meetings for decisions of constitutional questions, was conformable to the 15th article ; the Secretary, when such a meeting was required, serving upon every Yebid a summons, which contained notice that a constitutional question would be discussed, and that the fine for non-attendance was $5.
“In 1836, a vacancy existed in the office of Hazan. The more religious portion of the congregation, especially Nathan Hart and H. M. Hertz, aged men, then two of the Trustees, insisted mu chupón obtaining one who was strict in his observance of all the Mosaical and Rabbinical laws. The attention of the congregation was directed to Mr. Poz-nanski, who then held a Rabbinical office amongst the Jews in New York, and who was recommended by Mr. Hart from previous acquaintance. A committee was appointed to visit New York, and make proper inquiries. Upon their favorable report, there was a general willingness to employ Mr. Poznanski; and after some necessary alteration of the constitution then existing, he was, on 9th October, 1836, by unanimous vote, elected Hazan for a term of two years. No change was made in anticipation of his arrival, for the old forms of reading certain portions of the service on certain occasions, and making certain offerings in Spanish, had before that time been discontinued, and the provision then existed, that the Hazan should pronounce English discourses. After his arrival, about 1st January, 1837, Mr. Poznanski boarded with Mr. Hertz, was very strict in his observance of all the law, and until 1840, enjoyed the confidence of the whole congregation.
“ In April, 1838, the Synagogue was destroyed by fire, and an elegant, new structure was, in the course of two years afterwards, erected in Hazel street, from the money obtained from the insurance of the old Synagogue, and other funds of the congregation, aided by subscriptions. The subscriptions of the defendants amounted to about *253$2000, those of the relators to about $2000. Before the new building was completed. Mr. Poznanski had been elected Hazan permanently, with general approbation ; and in June, 1838, the Board of Trustees (Hertz only dissenting,) had left the anangement of the service to him.
“ In the Spring of 1840, the congregation was agitated by a proposition to establish an organ in the new Synagogue, to be used in the religious services on the Sabbath, and other occasions. This use of instrumental music was regarded by some as an innovation upon long established usages, and as a desecration of the' Sabbath ; but the Hazan was understood to be favorable to it. On 16th July, 1840, a petition was presented to the Board of Trustees, signed by thirty-eight members of the congregation, praying that the Board would consider the propriety of erecting an organ in the Synagogue. The Board, four to one, decided against the proposition. Upon a petition then presented, and signed by thirty-eight members, that the Board should assemble the congregation to consider the question, the Board deemed the question a constitutional one, and the congregation was assembled under the 15th article, by summons suitably marked. On the 26th July, ninety members attended, and that number was either the whole of the Yehedim then belonging to the congregation, or within two of the whole number. Twelve new members had been admitted a short time before, but not of the Reformed Israelites. The proposition to establish the organ was made by the witness, Mr. Valentine, (now of the party which sustains the defendants, and one of the twenty-five mentioned below, in the meeting of May, 1843,) and was decided by the President, Mr. Hart, to be a constitutional question.
“ From this decision an appeal was taken, and the decision reversed, by. a vote of forty-seven to forty, (Mr. Ot-tolengui, now President, who, as a member of the Board, had voted the question to be constitutional, declining to vote on this appeal.) The resolution for erecting an organ was then carried, forty-six to forty, a majority of the twelve new members voting against it.
“ The organ was erected, although the title of it was *254not vested in the Trustees or congregation, but remained in certain members of the majority, in trust for the congregation, so long as it might be used in the services. About five weeks afterwards, Mr. Hart died, of what disease the witness did not know; and in the course of that summer, Mr. Hertz died of country fever.
“ In a dedication sermon preached by Mr. Poznanski about this time, he advocated the use of the organ, and held out to his hearers that this was their Holy Land, and this their Temple.
“ After the erection of the organ, a portion of the forty who had voted against it, of whom are twenty-two of the defendants, ceased to attend the meetings of the synagogue, and other meetings of the congregation, and formed themselves, with some other Israelites, into a distinct body called the ‘Shea-reet Israel,’ or ‘ Remnant of Israel.’ This body hada separate place of worship, and purchased land to build a Synagogue. When the new fiscal year of the congregation at Rossannah, in September, came round, some of the seceders paid up their arrears, and some did not. None of them subscribed anew, or made any contributions. There was no regular mode of resignation or withdrawal then fixed, but there was an annual subscription of all who considered themselves members. Old subscribers who had been absent, had, upon payment of their arrears to the Secretary, been permitted to continue members without any application to the Trustees. These seceders made no subsequent claim of membership, and were not summoned to meetings, or otherwise treated as members. Afterwards, in 1843, as will be seen below, they applied by letter to become members. The executors of Nathan Hart, (of the twenty-two,) when called upon for his subscription, said that they had withdrawn, but would pay what they owed ; and they paid the annual subscription for the past year, but refused to pay a small balance due of their testator’s subscription for the Synagogue, upon the ground that it had been misapplied.
“ After September, 1840, nine or ten of the relators, who had been of the Reformed Israelites, were admitted mem*255bers. Thirteen or fourteen more of the relators were too young to have been of that society.
“ On 1st. November, 1840, a meeting to consider a constitutional question was called regularly, and forty-eight members attended. The whole number of the Yehedim, exclusive of the ‘Sheareet Israel,’ being then, perhaps, seventy. A new constitution, which was reported by a committee, was adopted — yeas, 36, nays, 7. A proposition, to adjourn till next Sunday having been rejected.
“This Constitution of 1840, contains fifteen Articles. Article 1. (Retained after an ineffectual motion to strike it out.)
“ ‘ This congregation, incorporated in the year 1791, shall be known, as heretofore, by the name of ‘ Kaal Kadosh Beth Eloxhim, or House of God.' The Hebrew portions of worship in the Synagogue, and in all other places, shall be conducted according to the Portuguese customs and mode of reading.’
“ ‘ Article 2. The government of the congregation shall be vested in a Board of Trustees, consisting of seven members, to be elected by the Yehedim, who may be within one mile of the city, on the first Sunday in Elul, to serve three years.’
“ ‘ All vacancies by death, resignation, removal from within one mile of the city, or otherwise, shall be filled, as above, for the unexpired term, within one month from the period of such vacancy.’
“‘Within one week after the first Sunday in Elul, annually, an election shall take place by the Board of Trustees, from among themselves, for President, Yice President, and Treasurer of the Kaarin Kayamet, to serve one year, for the ensuing Rossannah.’
“ ‘ The Board of Trustees shall have the entire regulation of all the civil and religious concerns of the congregation, including divine service. They shall prescribe the duties of all officers. They may convene the congregation at large, whenever they deem it necessary, and may make such rules and regulations for their own government, the government of affairs, and the conduct of members generally, as may not be inconsistent with their rights and *256privileges under this constitution, and a fair, liberal, and impartial discharge of their duties, as guardians of the congregation.’
“ ‘ Article 3. The President, or Presiding Officer, shall be the sole director of order, in and out of the Synagogue, at funerals, whenever service is performed, and on all other occasions relating to this congregation. All officers under pay shall be subject to his control.’
“ ‘ On application of one-fourth, of the Yehedim, within one mile of the city, for any purpose whatever, it shall be the duty of the President to convene the general body within ten days from said application.’
“ £ He shall convene the Board of Trustees at least once in every month, and may call extra meetings, whenever, in his opinion, or in the opinion of three members of that body, it shall be deemed necessary for the interest or welfare of the congregation. In the absence of the President, his duties shall devolve on the Yice President, and in his absence, on the Trustee senior in age.’
“ By article 5, the President is required to appoint managers of elections.
“ ‘ Any Israelite, not under religious disabilities, desirous of becoming a member or Yehid of this congregation, shall apply, by letter, to the Board of Trustees, a majority of whom being in his favor, he may be admitted, provided he has attained the age of twenty-one years. Strangers, however, must have paid their dues, as members, three consecutive years, before they can become Yehedim, which entitles them to vote and hold office.’
“ Article 6, relates to the Hazan.
“ ‘Article 7. Should any member, male or female, neglect to subscribe for two successive years', their original claim to an allotted Carrera, (portion of turial ground) is hereby forfeited; after which, the said Carrera shall revert to the congregation, and cannot be reclaimed unless by the consent of the Board of Trustees.’
“ The privilege of burial is confined to cases where ‘ the funeral service is performed by the Hazan of this congregation.’
“ Article 10. Amongst the fines are—
*257‘ Not attending a general meeting of the congregation, $;2 00
‘ Not attending a general meeting of the congregation for the discussion of constitutional questions, - $5 00.’
“ ‘Article 13. Every member of this congregation shall be obliged to subscribe, annually, at least fifteen dollars,’ and take seats, (fee. All demands for subscription and seat money, shall be paid quarterly.
“ ‘Article 14. Any subscriber, Yehid, or member of this congregation, male or female, who shall habitually attend divine service at any other place of Hebrew worship within this city, than that of Kaal Kadosh Beth Eloi-him, or subscribe thereto as members or Yehedim, shall be charged, annually, one hundred dollars.’
“ ‘All members or Yehedim, who have signed this Constitution, shall be held bound to all its requisitions until ,they resign by letter.’
“ ‘Article 15. Should any part of this Constitution require alteration, or any additional law be deemed necessary, the Board of Trustees, on the petition of one-third of the subscribing Yehedim within one mile of. the city, shall convene the people at large, to take into consideration such proposed alteration or additional law, which, if adopted by two-thirds of the members present, shall become binding and of full force. At all general meetings, twenty-five shall constitute a quorum to do business.’
“ Two additional trustees were elected after the adoption of the Constitution of 1840, Messrs. Woolf and Moise, the latter of whom had been one of the reformed Israelites.
“ 21st. February, 1841, the Building Committee was directed to have two tablets set up in the Synagogue, one, the Ten Commandments, the other, the Thirteen Articles of Faith.
“7th. March, 1841, the committee was directed to consult the Hazan, in preparing the tablets, and soon after-wards the tablets were set up. The Articles of Faith were somewhat altered from those before used, mainly as to the expressions made concerning the'expectation of the Messiah, and concerning the Unity of God : but the diffe*258rence seems not to have been much noticed, until the tables were printed and taught in the Sabbath Schools, and not to have attracted the general attention of the congregation until the great dissension in 1843.
“ 21st. March, 1841, at a meeting of the Board, thanks were rendered to the builder of the Synagogue, to Mr. Dacosta, who was then appointed Organist, for composing music and instructing the choir; and to Mr. Poznanski, for his sermon on the day of consecration, — all unanimously.
“ 28th July, 1841, a general meeting was called by the President, under a requisition of twenty-eight members, expressed to be in compliance with the 3d. article of the Constitution, (which related to ordinary meetings.) At this meeting, sixty-two Yehedim attended — the service, as then existing, was declared to be satisfactory, and the Board of Trustees were requested to submit to the congregation any changes in the Hebrew which they might propose.
“ A petition for a constitutional meeting was prepared and signed at the meeting, under which a call was immediately made. After which a 16th article was added to the Constitution, guaranteeing the permanent aid of instrumental music, by forbidding any President or Board of Trustees from stopping or suspending the organ, on any occasion, without the sanction of three-fourths of the Yehedim.
“8th. August, 1841, chaunting was introduced instead of singing, in part of the service.
“25th. August, 1841, certain assistants were abolished; and about this time certain prayers were omitted, namely, one for Friday evening.
“ 20th. March, 1842, a circular was received from London, containing the declaration of the Chief Rabbi there, that no Jew who rejected the authority of the oral law, could be admitted into the communion of Israelites in any religious rite; which, after a motion to lay it on the table had been rejected by the Board, was received by the Board, and notice given, that those who desired to know its contents, should call upon the secretary.
*259
<c 20th. February, 1842, a vacancy in the Board having occurred, Ab. Tobias was, by a bare majority, elected to fill it; there being no other candidate, and he being understood to be opposed to further change. The Board then, and afterwards, consisted of A. Ottolengui, President ; J. C. Levy, Yice President; (who was mostly absent from the State) A. Moise, A. Tobias, Isaiah Moses, Solomon Moses, and J. Woolf; of whom the three first are among the relators, and the four last named are of the twenty-five, who admitted and sustained the defendants, as below mentioned.
“7th. May, 1842, at the board, a proposition to abolish the Tecun was made by Solomon Moses, but it was withdrawn on account of the violent opposition made to it. Moise, who was in favor of the proposition, voting against referring it to the congregation.,
“January, 1843, the Board considered a petition for the use of the Synagogue in the evening, for English service exclusively. Tobias objected; Moise favored. After much excitement, it was withdrawn.
“ At the Passover, in 1843, the Hazan, in an English discourse, expressed his opinion in favor of discontinuing the observance of two holidays instead of one, upon occasion of certain festivals which are fixed by the changes of the moon. The usage of observing two days for one, he insisted,' had grown out of an anxiety to keep the right day, at a time when the rules for regulating the calendar had not been ascertained, but now. had been rendered unnecessary by the progress of astronomical science; and although it had long prevailed, it should be abolished as inconvenient.
“ This discourse increased the agitation which had prevailed in the congregation, and fixed those who had become dissatisfied with changes, in their determination to oppose all further innovations, and to re-establish the ancient forms.
“ 19th April, 1843, at a special meeting of the Board of Trustees, a Preamble and Resolutions adverse to the discontinuance of the second day of Passover, were passed by the Board, and transmitted to the Hazan. A letter from the Hazan having been voted not to be satisfactory.
*260“ 23d April, 1843, at another meeting of the Board, the Hazan’s reply to inquiries addressed to him in the resolutions adopted at the last meeting, was likewise voted not to be satisfactory, and a meeting of the congregation was called.
“26th April, 1843, at a meeting of the congregation, conciliatory resolutions were offered by Mr. Levin, and passed — 39 to 12 — approving of the course of the Board, and the mode of service then existing, and accepting the letter of the Hazan. A resolution was offered by Tobias, that ‘the established service of this congregation involves all the Mosaic and Rabbinical laws,’ and it was rejected by a majority of three votes — 24 yeas, 27 nays — the nays being of the relators, and the yeas of the twenty-five who support the defendants.
“30th April, 1843, four of the Trustees, (I, Moses, S. Moses, Tobias and Woolf,) by letter requested the President to convene the Board of Trustees next evening, at an hour to suit his convenience.
“1st May, 1843, the President, by letter, answered the four Trustees, that he would have complied with their request, but having previously received a petition, signed by twenty-five Yehedim, desiring a public meeting, although he had not intended to call the public meeting so soon, yet as the four Trustees desired an immediate meeting of the Board, he had ordered the Secretary to summon the Yehedim to a public meeting next evening, and afterwards would attend to the call of the Trustees as soon as practicable. The same day, the four Trustees replied, urging the call of the Board for seven o’clock that evening, and stating that they had important matters to submit, which would have great influence on the contemplated action of the general meeting, and making a formal demand of the majority of the Board of Trustees for a meeting — requesting to hear immediately if he did not accede to their wish. Immediately, the President rejoined, that he did not consider their reasons for a meeting of the Board as strong as those against it, and that he must first hear from the people.
“2d May, 1843, under a call of the President only a *261general meeting was held, at which sixty four seem to have attended. The President stated that he had made the call in compliance with the petition of twenty-six Ye-hedim.
“Mr. Cardozo offered resolutions as follows:
“ 1 Resolved, That the will of the majority is the fundamental principle of all associations in this country, political, social and religious.’
“ 1 Resolved, That the Trustees of this congregation were elected on the implied assurance, that they would, in all respects, conform to the will of the majority of the congregation.’
“ !Resolved, That sufficient presumptive evidence has been obtained to shew that it is the intention of a majority of the Trustees to admit to all the privileges of corporators, those who have been denominated seceders from this congregation, by which its established ceremonial and present Pastor are to be displaced, thus compelling a majority to submit to the wishes of a minority of the congregation.’
“ ‘ Therefore be it Resolved, That the President of Kaal Kadosh Beth Eloihim be instructed by this congregation not to call together the Board of Trustees until the opinions and feelings of a majority of the congregation are correctly represented.’
“Upon á question, made by Mr. Tobias, the President decided that these resolutions did not present a constitutional question, whereupon the four Trustees and their adherents, making in all twenty-five, protested against the proceedings of the meeting, and withdrew. The resolutions were passed by the thirty-nine who remained.
“At the same meeting, after a recommendation, signed by the thirty-nine, there was also passed an alteration of the 5th article of the Constitution, so that an Israelite might be admitted a member by the Board, but could be admitted a Yehedim only by a majority of the congregation. An addition to the first article of the constitution was also passed, prohibiting any alteration of the form of worship then prevailing, before it had been submitted by the President to the Yehedim, and adopted by a vote of three fourths of those present.
*262“3d May, 1843, the four Trustees, by letter, informed the President that they were in possession of letters from several Israelites, desirous of becoming members, and requesting him to convene the board next day.
“4th May. The President, by letter, declined to call an extra meeting of the Board, because he felt bound by the resolutions of the late general meeting.
“Shortly afterwards a petition of twenty-five Yehedim, praying a general meeting for constitutional questions, was prepared, and counterparts of it delivered to the President and each of the Trustees. The four Trustees called upon the President, and requested him to meet them, and upon his refusal to do so, gave him notice of the time and place at which they intended to meet.
“6th May, 1843, in conformity with this notice, the four Trustees met, attended by the Secretary, who entered their proceedings in the book which contained minutes of all meetings. At this meeting, called ‘an extra meeting of the Board of Trustees,’ the President being absent, and the Yice President out of the State, Isaiah Moses, the senior Trustee present, took the chair. Letters were read from applicants for admission- — the defendants — and thirty-one were admitted Yehedim, and ten members. In conformity with the petition of twenty-six members, a general meeting was ordered for 15th May, to consider constitutional questions, and suitable summons were served upon all the Yehedim then considered to belong to the congregation.
“15th May, 1843, at a meeting held under this call, twenty-five Yehedim attended. The President and Yice President both being absent, Isaiah Moses, senior Trustee, took the chair.
“By unanimous vote of the twenty-five, ‘in order to remove all grounds of cavil’ against the admission of Yehe-dim, lately made by the Board, their admission was confirmed — they (the defendants,) declared to be Yehedim, and every clause of the Constitution and laws, from which any doubt might arise, so altered as to permit their full enjoyment of all privileges. Twenty-eight of the defendants then joined the twenty-five, and amendments of the Constitution were adopted, first requiring the Board of *263Trustees to meet at a fixed time every month, and at such other times as the President or any three Trustees shall require, a majority being competent to do all business in the absence of the President. Second, giving power to the Board to permit other persons to perform the marriage ceremony, and to do other duties of the Hazan. Third, allowing the privilege of burial in the congregational burial ground, to persons entitled thereto, when the service is performed by the Hazan, or any member of the congregation. Fourth, striking out the restriction in the 14th article, upon attendance upon other places of worship. The proceedings of the meeting of 2d May were declared to be void, and were rescinded.
‘!27th June, 1843, at another general meeting, called by the four Trustees, at which the defendants attended, and the relators did not, the powers given by the Constitution to the President as to elections were transferred to the Board, and their power enlarged as to dismissing officers. The Board was requested to take measures to cause the discontinuance of instrumental music in the Synagogue on the Sabbath and solemn festivals.
“From subsequent proceedings of the party to which the defendants belonged, it appeared that the Hazan, by order of the President, refused to deliver certain books of the congregation to the four Trustees, as they had requested ; that the Organist refused to obey their directions, and that after some alleged force, the possession of the Synagogue was obtained by the relators.
“The defendants offered testimony to shew that the use of the organ in the Synagogue, on the Sabbath, is contrary to the Minhog Sephardim, and to the practice of the Jews in London and Amsterdam, and that by teaching that the Messiah was an Ideality, and not a Person, and was not to be expected, and by changes in the Articles of Faith, as expressed upon the Tablets, Mr. Posnanski and those who sustained him, had contradicted the fundamental law of the congregation, and the long established faith of the Jewish Nation.
“I overruled the testimony, as irrelevant, and as likely to lead to tedious investigations of matters of faith, unfit for the decision of the civil tribunal.
*264“I left it to the jury, as a question of intention, to decide whether the defendants, who had been members before 1840, had resigned their rights of membership in the corporation — holding, that if not specially restricted, the right of resignation existed, and that the form of its exercise would depend upon usage, where there was no positive provision. I submitted to the jury to decide from the acts of the parties, whether those defendants had intended to resign, and whether the remaing members of the corporation had assented to their resignation. I was satisfied with the finding of the jury on this point.
“I decided, that under the by-laws, called the Constitution of 1840, when the President was in health in the City of Charleston, the other Trustees could not form a Board without his order or assent, and that therefore the acts of the four Trustees, in May, 1843, were void. That consequently the general meeting of 15th May, 1843, was irregular, and not being composed of a majority of persons, these members could not be competent to bind the corporation. Therefore, that if the defendants had resigned, they had not been admitted lawful members, either by the Board of Trustees, or by the congregation.
“ I was of opinion that the charter was the paramount law of the corporation, and when it was silent, the will of a majority of the corporation might be made to prevail against any previous self-imposed restraints. That, therefore, when, by any by-law, the assent of a greater number than a majority was required for a particular purpose, such a by-law might be overruled or repealed by a majority, at a meeting where all the corporators were met, or were summoned, if no fraud or surprise was thereby effected. That such a by-law might be considered as an agreement, one with another, not to do certain acts without the concurrence of a prescribed .number; and an act in violation of it, might be a fraud upon absentees, and even upon dissenters present; if, by absence of corpora-tors, whose votes, or whose arguments might' have had influence — or by want of preparation for opposition, or other circumstances of disadvantage to the minority, the will *265of a bare majority had been made to operate, where, by agreement, it was to have been insufficient. Yet, that still, notwithstanding such agreement in a matter not affecting third persons, after full notice to all concerned of their purpose, and with all circumstances of fairness, the majority might, by their spontaneous assemblage and act; relieve themselves from any restraint to which they had subjected their will. That, therefore, the resolutions of 2d May, 1843, might be, at least, a justification in conscience for the President’s refusal to discharge the duty of calling a meeting of the Board, imposed upon him by the constitution; but I held that the lawfulness of these resolutions, and the extreme rights of the majority, it was unnecessary to decide in this case, as by the President’s neglect of his duty, (supposing it to be unjustifiable,) no power, not delegated, was conferred upon the other Trustees.”
The jury found that the defendants were not members of the corporation, and they appealed, upon the following grounds:
1. The defendants proved that the form of worship, according to a peculiar Ritual, had been established by an express article of the constitution of the Jewish congregation, and had been secured to the minority, by requiring the concurrence of three-fourths of the congregation to any change. The defendants proved that they were original members of the corporation, and insisted that they had never resigned — and as a fact or circumstance to explain their withdrawal from the congregation, and rebut an implied intention to resign, they offered to prove that an organ, which the relators had erected in the Synagogue by a bare majority of six votes out of eighty-six voters, was a violation of the form of worship, as secured by the constitution, and justified and explained the conduct of the defendants in retiring; but his Honor, the presiding judge, ruled the evidence to be inadmissible.
2. Because his Honor charged the jury, that a resignation could be implied, by the jury from the mere acts of the defendants, without any evidence of acceptance of such resignation by the corporation. Whereas, the defen*266dants insist, that under the by-laws of the corporation, the concurrence of the corporation or the Board of Trustees was required to make valid a resignation.
3. Because his Honor, the presiding judge, charged the jury, that the Board of Trustees could not meet, except upon the summons of the President.
4. Because the President, not being an integral part of the Board of Trustees, and his absence from their meetings being expressly recognized by the constitution, upon his refusal to summon a meeting it was competent for a majority of the Board to notify the President, and to summon a meeting, at which they would constitute the legal acting body.
5. Because the constitution of the corporation had provided that the President should summon meetings of the Board of Trustees whenever required by any three members ; and that upon his refusal to comply with the law, it was competent for a majority of the Board themselves to summon such meeting.
6.Because, by the constitution of the corporation, two kinds of meetings of the corporation are provided for ; the one for common business, which maybe summoned by the President, the other for alterations or amendments of the constitution or by-laws, which are required to be summoned by the Board of Trustees, whenever demanded by a petition, signed by one-third of the members. The defendants insist that such a requisition must be held as peremptory upon the Board, and in the nature of a summons to meet; and that upon the neglect or refusal of the President to obey the requisition, the majority of the Board were authorized, and it became their duty to meet and act thereon.
7. Because his Honor, the presiding judge, erred in charging the jury, that such a meeting, without the summons of the President, was illegal. Whereas, the defendants insist, that such a construction would overthrow the fundamental law of corporations, and subject the whole corporate action to the mere will of the President thereof.
8. Because the relators justified the action of the President, under a resolution adopted by a majority at a meeting of the corporation called for common business; and *267the defendants thereupon offered testimony to prove that such resolution was adopted by collusion among the members, ’with a view to break down the established faith and worship of the Jews, as secured by the constitution of the corporation, and to substitute a new faith and worship of their own in lieu thereof; and as a circumstance to aid in proving such collusion, they offered to prove that the Minister, who was sustained by such majority, had preached and taught that the Mesiah was not a real being, but a figure of speech, used to describe a state of things ; and they also offered to prove that such teaching was contrary to the universally received faith of the Jews — but his Hon- or, the presiding judge, ruled the said testimony to be inadmissible.
9. Because the defendants further offered to prove the same facts, as a circumstance to explain their conduct in retiring from the congregation, and to rebut the inference that they had forfeited their privilege of being members of the corporation.
10. Because, upon the requisition made by one-third of the members, under the 15th article of the constitution, the meeting of the 15th May was lawfully held, and the corporation was lawfully assembled; that all the members of the corporation having been lawfully summoned to the said meeting, according to the form provided by the constitution, and a quorum having appeared, that quorum could legally exercise the corporate powers, and were authorized to admit the defendants — and such admission having been duly made, the defendants are rightful members of the corporation.
11. Because his Honor, the presiding judge, charged the jury, that the meeting of the corporation mentioned in the last ground of appeal, not having been called by the authority of the President of the corporation, was not a legal meeting. Whereas, the defendants submit and contend, that the meeting was duly called, and was a legal meeting, and that their acts were lawful acts of the corporation.
This case was argued in January, 1845,
by King and Memminger for the appellants, and by Petigru and Bai
*268ley, contra;
and was kept under consideration until this term, when the opinion of the court was delivered by
Butler, J.
There should be great caution observed, in relation to cases like the present. The court should only take cognizance of such matters as may fairly come within the scope of a judicial judgment. Prom his habits of thinking and education, a judicial magistrate is'not very well qualified to give a definite and enforcible judgment on questions of Theological doctrine, depending on speculative faith, or ecclesiastical rites-. It is to be regretted that they have of late become such frequent themes of forensic discussion. In all religious societies, difficulties will exist— and when they cannot be settled by a corporate forum, they are very rarely cognizable before a civil tribunal. I mean questions merely of a religious character.
From the view which has been taken of the case before the court, it has been relieved from the consideration of any other questions than such as assume a strictly legal character — questions that depend on the construction of written instruments. The charter of every corporation constitutes its fundamental law; all subordinate regulations, in the form of by-laws, must be in conformity to it. .By-Jaws thus made constitute the statutes for its immediate and peculiar government. When they are made by proper authority, the members of a corporation are under a legal, as well as a moral obligation, to observe them. When their provisions are either disregarded or violated, cases may be presented for the interposition of judicial authority. The general presumption is, that a corporation itself can enact and enforce sufficient sanctions for the purpose of securing obedience to its laws. When it loses the capacity of self-government, by disorganization, or partial usurpation of some parts over others, the parties injured by such abuses, may well ask for the aid of the civil magistrate. In such cases, the by-laws as well as the charter, must be looked to as rules of conduct. Questions like these most generally arise in the following instances. Have the corporators themselves, by open avowal, or *269unanimous consent, assumed a new jurisdiction, or perverted the charter from its original design 'l Or have they, in the administration of their government, for the time being, conducted themselves without regard to the provisions of subsisting by-laws, to the prejudice of individual members or officers ? In the first point of view, the case might occur in which the State might demand a surrender of the charter, under a judicial judgment of forfeiture. For instance, if this corporation, which was incorporated under a Legislative guarantee, that it should exist and. continue as a Jewish Synagogue, were to be converted into a Turkish Mosque, or were to assume 'any other religious character, palpably different from that claimed for it by its founders, its charter might be taken away from it, or it might be chartered under another name. Or, in another view, if a majority of the congregation were to exclude the minority from the acknowledged worship, peculiar to the sect of Israelites, this minority might well claim to be restored to a situation in which they could enjoy their rights. In the cafees supposed, the conduct of the parties would be evinced by open professions, or by some palpable exhibition of their determination and designs. There are other cases again, in which an integral part of a corporation would not be allowed to usurp powers given to other departments of corporate government. Or, where one integral part has been excluded from the performance of its functions, by the. combination or usurpation of other parts. Besides these, individual rights, growing out of the operation of the by-laws, may present questions for legal adjudication. Disputes in reference to such matters, particularly the latter, have not been unfrequent in the English courts. They have generally arisen in cases of election or amotion, and when one or the other of these may have been affected, either by improper authority, or in violation of legal by-laws, jurisdiction has been taken, and redress given. In such cases, there have been, sometimes, difficulties in respect to usages that should stand in the place of law, or to ascertain, in fact, what,were the laws by which the corporation should be governed. They have been contests for the enforcement of recognized *270rights and established franchises — and, like all legal rights, they were made to depend on the application or construction of law. The motives of the parties, or the differences merely of a mental nature, do not .seem to have had anything to do with the decisions of the courts.
It is almost impossible to reduce matters growing out of a difference of opinion, to such a definite form as to subject them to judicial cognizance. Rights and franchises are such matters as have legal existence, and may be protected by law.
Speculative disputes must be left, in some measure, to the arbitrament of opinion. To suppose that an uninterrupted harmony of sentiment can be preserved under the guarantee of written laws and constitutions, or by the application of judicial authority, would be to make a calculation that has teen refuted by the history of all institutions, like that before us. Neither is it practicable to frame laws in such a way as to make them, by their arbitrary and controlling influence, preserve, in perpetuity, the primitive identity of social and religious institutions.
The granite promontory in the deep may stand firm and unchanged amidst the waves and storms that'beat upon it, but human institutions cannot withstand the agitations of free, active, and progressive opinion. Whilst laws are stationary, things are progressive. Any system of laws that should be made without the principle of ex-pansibility, that would, in some measure, accommodate them to the progression of events, would have within it the seeds of mischief and violence. When the great Spartan law-giver gave his countrymen laws, with an injunction never to change them, he was a great violator of law himself. For all laws, however wise, cannot be subjected to Procrustian limitations. Cesante ratione cessat lex, is a profound and philosophical principle of the law. These remarks are more particularly true, in reference to matters of taste and form. Let the oldest member of any civil or religious corporation, look back and see, if he can, in any instance, trace the original identity of his institution, throughout its entire history. Those who now, in the case before us, insist with most earnestness on a se*271vere observance of ancient rites and forms, would hardly recognize or understand the same, as they were practiced by their remote ancestors who founded the Synagogue. The Minhog Sephardim, was a ritual of Spanish origin— and although it may yet obtain in different countries, yet how differently is it observed. If two Jewish congregations, one from Poland, and the other from Spain, were to be brought together, whilst professing to be governed by the same rituals, they would probably find themselves unable to understand each other in their observances of them.
The Jews in every part of the world, by whatever forms they may be governed, could, no doubt, recognize the general spirit and prevailing principles of their religion, to be essentially the same. But in mere form, a resemblance could not be' traced with anything like tolerable uniformity.
As practiced and observed in Charleston in 1784, and for many years afterwards, exercises in Spanish were connected with it. They have been long since discontinued; long before the commencement of this controversy. Religious rituals merely, not involving always essential principles of faith, will be modified, to some extent, by the influence of the political institutions of the countries in which they are practiced. In a despotism, where toleration is a sin to the prevailing religion, religious exercises will be conducted in secret, or in occult forms. Faith and doctrine may take refuge in these for safety. On the contrary, in a country where toleration is not only allowed, but where perfect freedom of conscience is guaranteed by constitutional provision, such devices will not be resorted to. Language, itself, is continually undergoing changes ; clumsy expressions of rude language will give way to modern refinement. There are those in every church who would be shocked at the change of expression in respect to the tablets or books that contain the prayers and more solemn forms of religious rituals. At this time, there are many who oppose any change of style in the editions of the Bible. It is not surprising that those who have been accustomed to one form of expression, should have *272associations with it, that they could not have with another. And it is so of all religious forms and ceremonies. The feelings of such persons should never be treated with indifference or rudeness. . They deserve respect, and are to be regarded as useful checks on reckless innovation. Matters of this kind must necessarily belong, and should be committed, to the jurisdiction of the body that has the right of conducting the religious concerns of ecclesiastical corporations. Charters are granted to such corporations, upon the ground that they can carry out their ends with greater efficiency than if they were left to individual exertions, and the operation of the general laws of the land. The parties before us who are opposed to reform, contend that dangerous changes have been made in the form of their worship, particularly as it respects the introduction of instrumental music. It is not pretended but that the organ, the instrument complained of, was introduced by the constituted authorities but the ground taken is, that this authority has been exercised to do that which is against the provisions of the charter, which guarantees that the Minhog Sephardim should be a ritual of the congregation, and that it did not allow of instrumental music as a part of it. The objection is to the mere form in which music is used and practiced in this congregation. I suppose it might be admitted, that in its origin, such a ritual was practiced without the aid of instrumental accompaniment — but to suppose that the exact kind of music that was to be used in all future time, had been fixed and agreed upon by the Jewish worshipers who obtained this charter, would be to attribute to them an impracticable undertaking. That such music was not used, is certain but that it might not, in. the progress of human events, be adopted, would be an attempt to anticipate the decision of posterity, on matters that must be affected by the progress of art, and the general tone of society — and which could not be controlled by arbitrary limitation. As this was a subject that could not be well reached, much less continually controlled, by the judgment of this court, we think the judge below very properly excluded all evidence in relation to it. Evidence was offered on a graver *273subject, touching the faith and religious professions of the majority that introduced and established the organ. It might be sufficient to say, that the party which has been charged with heterodoxy, in this respect, profess to adhere to the ancient faith of the Jews. They do not occupy the position of those who openly disavow the faith of the founders of the Synagogue. If they were to do so, it would be time for the court to say how far it would take cognizance of the rights of the minority, under the terms of their charter. How can a court ascertain the faith of others, except by their professions ? Gan it be done by the opinions of others, and if so, by whose opinions ? It is said that no two eyes can see exactly at the same distance ; and perhaps no two minds have exactly the same conceptions of the same subjects, particularly of matters of faith and orthodoxy. ' The unexpressed sentiments of the human mind are hard to be found out, and it is a delicate office to assume a jurisdiction over its operations, when they are to be reached by the opinions of others, or conjectural inference. Expressions and acts may give tolerable information, upon which the judgment may act and determine.
In this case suppose the Judge below had opened the enquiry as to the faith and doctrines of the dominant party, where would he have looked for information ? Surely not to the minority, or any others who might occupy an adversary position. Could he have trusted to the testimony that might have been procured and given from other sects and denominations of Jews in other countries ? and if so, should he have consulted those who live in Palestine, in Germany, in England, or in the United States ? He might have assumed the power to do this, but it would have been a wilderness of power, with scarcely a compass to guide him. It would have been to go into the labyrinth of curious and recondite learning, without a clue by which he could escape from its bewildering perplexities. He would have had another difficulty, that is, to determine whose testimony he would have taken, for both parties, no doubt, had ready and able advocates for their respective doctrines. It seems to me it would have been hard for a civil magis*274trate to give a definite, much less a satisfactory, judgment on such subjects. We, therefore, concur in the propriety of the course pursued by the Judge below in respect to these matters. If the court can be called on to settle by its decision such disputes, it would be bound to require parties to conform to its standard of faith — a judicial standard for theological orthodoxy ! — Having made these remarks, rather by way of general explanation, than as authoritative adjudication, I will proceed to state the more definite questions of a legal character upon which the judgment of the court will be made to turn.
These questions respect the resignation of twenty-two of the respondents, and the readmission, or election, of themselves and twenty-three others. Twenty-two had been members of the congregation, and had a right to all the privileges and immunities of the corporation.
The first question, then, is, had they at any time and by any act voluntarily surrendered their right of membership, by doing that which would, in the opinion of this court, amount to a legal resignation 1
And secondly- — if so, were they re-admitted by the exercise of lawful' authority 'l — and in connection with this, proposition will be considered the rights of the other twenty-three who claim to have been elected members at the same time.
1st. It will be necessary to look for a moment at the nature of the interest of the original corporators whose resignation is in question. Did their rights depend on membership % — or were they such that they could not be deprived of them except by written alienation o.r surrender'? It was suggested in argument, that having contributed their money to buy a burial ground and erect a building as a place of worship, they had something like a right of property in the corporate fixtures and lands. This is placing them in the position of tenants in common in an estate, rather than as members of a religious institution. Although they were members of a private corporation to which they had contributed their private funds, it must always be borne in mind that it was an association instituted for religious purposes. They were admitted under *275law, and could be regulated and removed according to laws Their tenure must be referrable to the terms of the law, if they can show no independent right depending on purchase. — The duration of their membership in this point of view would seem to limit their right. The character as well as appellation of private corporations are known according to the objects for which they are created. One of the views of such a Society in obtaining a charter, is for the purpose of managing, with greater facility and advantage, the temporalities belonging to such a body. The great object, however, is the privilege of having a self-government in respect to the end in view of the corpora-tors. The enjoyment of the temporalities is incident to the tenure of membership, and cannot be claimed as a right in the nature of a legal interest in property. By way of illustration, suppose a member to be excluded from the congregation by amotion legally conducted and effected under the by-laws — could he still insist on claiming his seat as a voter or Yehid, or could he insist on other privileges which had been enjoyed in common with others ? If -he could, it must be in virtue of some definite right which he had bought from the corporation as such. I have no doubt that a right to a place of burial could be acquired by individual purchase, and it is one which ought to be conceded by the corporation to all such who are disposed to claim it. Such interests as these, however, have not been presented to us, and are, therefore, not the subject of any distinct adjudication. To have certain legal rights by virtue of title from the corporation is very different from, claiming the privileges now in question. The respondents claim the right to vote and take a part in the deliberations of the congregation — they claim a right of off fice as individual members under the charter of a private religious institution.
I think there can be no doubt but that such a right may be parted with by voluntary resignation. The question is whether such a resignation has been made and accepted according to law, and in a way to be obligatory on all the parties to this controversy. To make it so, there must have been both a resignation, cum animo, and an acceptance of *276it on the part of the acting and responsible government at the time. — No overt act of resignation in writing or deed was ever made. If it ever took place, it was to be implied from acts and conduct, both in reference to the then existing Constitution (that of 1837,) and the general principles of law. It was suggested in argument that the motives of the seceders in leaving the congregation were not to give up their membership, but to manifest their indignant displeasure at what they regarded irreligious innovations, and with a view of arousing attention on this subject. Whatever may have been their purpose must be judged of by their acts, and the presiding Judge left this as a question of fact to be determined by the jury. If the act of resignation could be completed by parol only, the course of the judge was entirely correct, and the verdict of the jury should settle the question. Then the question occurs, can an office or right of membership in a corporation be surrendered by parol?
That resignation may take place by parol, and may be implied from the acts of the parties, seems to be pretty well established by authority. In the case of Rex vs. Rippon, 1 Lord Ray. 563, the question was much discussed, and it was held that an alderman, by a verbal declaration, and withdrawing at the time from the Council room, had resigned his office, and that it had been accepted by the election of another. I will save myself the trouble of reciting the language of the different authorities on the point, and will only cite the books in which they may be found. 2 Sal. 443 ; Angelí and Ames, 254, 255, 256 ; Wilcock, 238, 239, 240; 2 Kyd. 450. These authorities recognise the necessity of acceptance to make the act of resignation entirely obligatory. The different acts of the parties touching this point were fully brought to the view of the jury by the presiding Judge. At the time the respondents left the congregation (in the summer of 1840,) the Constitution of 1840 was not adopted — and therefore, the provision of that instrument requiring resignation to be made by letter, was not of force. The respondents acted under the Constitution of 1837, or must have felt themselves bound by the general laws of the land. The 12th article *277of that Constitution contains an inhibition against all Is-raelites from combining to erect another Synagogue within five miles of Charleston, under the penalty of “their being deprived of becoming, or remaining, members of the Synagogue.” In defiance of this provision, after the organ was erected, the respondents, whose resignation I am now considering, seceded, and joined themselves with some other Israelites into a distinct society called “Sheareet Israel.” This body had a separate place of meeting, made arrangements to build another Synagogue, ceased to attend corporate meetings, and made no contributions. They did not claim to be members, but as strangers applied to be admitted under the authority of the then existing government. In all this the corporation and trustees acquiesced. They did not summon the defendants to attend meetings, neither exacted of them fines or subscriptions, nor in any manner did they treat them as members. A new Constitution was formed (a very important measure, and one in which all the members interested in the fate of the institution might be supposed to have a deep concern.) If they had considered themselves as members they should have been present to resist dangerous changes, if any had been proposed, and this ought to have been their course if they intended to continue their relation to the Society, and to take a responsible part in its deliberations. They did not attend, nor were they summoned to attend. This will go to shew that they had ceased to perform the duties of regular members, and that those who remained in the government of the corporation had ceased to regard them as voting corporators. There seems to have been a mutual understanding as to the relation of the respondents — they acted as though they were not members, and the other party treated them in like manner. Prom this it might well have been concluded that resignation had been made on one part, and acceptance on the other. But finally, the respondents applied for re-admission. Why did they do so, if they regarded themselves as temporary seceders cum animo revertendi 7 This application was a practical commentary on their previous understanding, , and amounts to recognition of their surrender of corporate *278privileges incident to membership. Ex parte Gray, Bail. Eq. 77) Hunt vs. Elliott, Ib. 90. For three years' the defendants refused to perform the duties of members, and during that time the other party treated them as strangers. Can it be well supposed, then, that the defendants, during the whole of that time, acted upon the consciousness of reserved and enforceable rights 7 Taking all these facts together, I think the jury were well authorised to come to the conclusion that is evinced by their verdict.
The second question brings up very important matters for consideration; and requires the court to look into the original character of the government of this corporation as it is prescribed by the charter, and into its organization as it is regulated by the by-laws. The charter is the fundamental law, and the by-laws must be looked to for the purpose of ascertaining the mode of existence or the manner of administering the corporate government under the law of its creation.
By the 2d. clause of the charter, the corporation has a right to hold lands, and so forth — to make such rules and by-laws for the rule and government of the same, and for the election of members, and so forth — -to appropriate money for the support of children, and so forth, “as shall be, from time to time, agreed upon by the adjunta of said corporation, or meeting of the Elders thereof, chosen by the said corporation^ By the 3d. clause, the corporation has a right to hold personal estate, and to appropriate the funds arising therefrom, “ in such manner as may be determined by the said adjunta or Elders of the corporation, and to appoint and choose and displace and remove, and to supply such ministers, officers, (fee. and to appoint such salaries for their labor and services out of the funds thereof, as the said corporation shall, from time to time, approve and think fit.”
Now, here it is clear that the power to create all the departments of corporate government, with the ultimate right of remodeling it, or removing officers, is given to the corporation at large; with this qualification, (clumsily expressed) that the by-laws are to be made and. submitted to the adjunta for their approval. Before the adjunta
*279could exercise this office of approval, they had to be brought into existence by the choice of the corporation. When once created, that body formed a part of an organ-ised government, and may have had the power of approval or veto quoad the subjects submitted to them. The power of creation and amotion is clearly reserved to the corporation itself. Under any construction that can be given, the adjunta was not an independent integral part of the corporate government to do any other acts than such as were committed to its limited authority. By the terms of the charter, it was pre-supposed to be a necessary and important department of government. But the original power of making by-laws, or the power of electing officers, was not given to it. Whether these powers might not have been given to it by the legislative consent of the whole, I shall not now undertake to determine. It never has, as far as we know, undertaken the exclusive authority of legislation; and if it possesses, or ever possessed, the power of electing officers or members, it must be in virtue of by-laws that have conferred upon it such powers. The mode of exercising its powers must, therefore, be traced to the by-laws which have been adopted under the sanction, of its approval. These by-laws, or constitutions, as they are termed, must prescribe a rule of conduct, as well for themselves, as for all the members of the corporate body. For if a charter has described the mode in which by-laws shall be made and adopted in order to their validity, that mode has been pursued, that is, supposing the adjunta spoken of in the charter to be the same as the trustees that are recognised and appointed under the Constitutions of 1837 and 1840. Here it may be observed in passing, that from the circumstance that there is now a doubt as to who were the adjunta under the charter, we cannot be certain of many matters connected with the original history of the Synagogue, either as it respects its secular government, or its religious rituals. But I will assume, what was rather conceded in argument, that the Board of Trustees answer, in character, to the original adjunta spoken of in the charter. If so, that body, under the bylaws, had only derivitive existence and qualified functions, *280and could only do business under the authority that surrounds it. The great question is, how can it assume an organised existence for the purpose of exercising its conceded functions 1 Can that be done in a manner different from that strictly prescribed in the Constitutions ?
Human wisdom is shewn in nothing more strongly than when reason and deliberation, by previous laws, have interposed restraints on the excesses of passion, or have interposed guards against the dangers of irregularity and precipitation. All well digested codes of laws are framed in reference to these ends. That system of government, whether of a private corporation, or of an empire, that has but one single independent department, that may move by its own spontaneous action, and which requires no concurrence with another, has within it either the principles of an irresponsible despotism, or it is one that will be driven from one extreme to another by the wild impulses of caprice and tumult. A subordination and concurrence of action afford, by the delays which they occasion, and by the forms that must be observed, some security against the dangers of irregularity and precipitation. If all will act in obedience to previous law, they will avoid the temptations of sudden excitement, and will only do what they agreed should be done when reason and concord were their counsellors. I will now proceed to the enquiry as to what powers have been conferred on the different functionaries of this corporation by their constitutions. When no definite class has original authority under a charter, the powers of government reside in the body at large. Ang. & A. 178.
The power of making by-laws as rules of prominent government, was given by the charter to the entire body of the responsible corporators in the case before us ; and that has never been parted with by any by-law conferring it on any definite class. The general provisions of the constitution are, that after the trustees have been chosen, they shall have the powers therein enumerated, (all of which are essentially administrative or judicial) with, perhaps, these exceptions, that of appointing a Parnass, and electing or receiving new members. These latter powers are *281those which are mostly concerned in this controversy. The power of electing a President is more instrumental than original, for when the President is appointed, he is invested with authority, not under the trustees, hut under the constitution. He is a constitutional officer appointed by one of the departments of government. But once he gets his appointment, he is required to exercise, exclusively, many important functions upon his independent responsibility — without the control of, or co-operation with, any one else. In the creation of the different officers, the process is from the body at large, through the Board of Trustees, to the Parnass. But, for the purposes of organization, the order is inverted, and the Parnass is the efficient agent for bringing into activity and official form the other powers. He is the nucleus of organization. According to the mode prescribed, he, and he alone, is to summon the trustees, and when assembled under his summons, he presides over, and, for some purposes, forms a part of them.
Without being summoned together, the Board, as individuals, have no official authority, nor have they any original authority at all, either under the charter or the by-laws. As a body, it is the creature of legislative enactment or corporate appointment, and as such, must be bound by the mode of proceeding implied or expressed in their appointment. If they were to assemble by the call of their president, or in any other way than that definitely provided for, and were to undertake by legislation to give themselves power, it would be a usurpation, and all acts done under such an exercise of authority would be void. Ang. & A. 199. 4 Burrow, 2190.
So, too, all elections that may have taken place under such authority, upon an implied acquiescence of other parts of the corporation, would be illegal. To do any thing, they must shew their authority by express grant. How then do the trustees get their power to elect ? Why, in the same way that they get their power to assemble. They could not do either the one or the other, without delegated authority. I shall not enquire here whether the power delegated to that body, of electing members, or' for any *282other purpose specified, was repugnant to the charter. It may be conceded that the corporation, having the original power, had a right to have it exercised in such manner as they might, think proper. Let it be conceded, then, that, by the constitution of 1840, the trustees have the right to elect members. How are they to proceed to go into an election? If a majority were to assemble without summoning the others, it would be an illegal assembly for any purpose, either for that of administration or election. By their own agreement, under the by-laws, they have subjected themselves to the power of the President, so far as regards their assuming the form of official organization. The power of the President is distinguishable from his duty. He has the power to call the Board together as often as he may think proper. It is his duty to do so once a month, or on the application of three members of the Board. He is the executive organ to do this, like many other acts conferred upon him, or incident to his office. On failure to perform his duty, can one member take his place of issuing the summons ? If one could not, could two or three do it ? Ordinarily, it is conceded, this could not be done, and where the President is willing to perform his duties, it would follow that the trustees had no right to assemble on their own accord. But the ground taken is, that although they cannot supercede the power of the President when he is willing to exercise it, they may assemble, and be a legal body, in spite of the President, on his refusal to call them together in the manner pointed out in the Constitution. The assumption is to transfer to the Board itself, by its own spontaneous action, the power of the President in the contingency supposed. This assumption is the hinge of the case. The re-admission of the twenty-two who had resigned, and the original admission of the other twenty-three, depends on this narrow proposition, whether the meeting of the Board of Trustees on the 6th of May, 1843, was legal or not. That meeting was not, in fact, called by the constitutional officer, but was brought about by the trustees themselves. The difference between such a meeting as this and one called on the authority of the President, is very obvious. *283A meeting called by the President would be obligatory on all, whether present or absent, because all hare agreed to the legality of such a meeting in the solemn form of law. That being known to all, would be obligatory on every one. And at a time of great excitement, requiring the best counsel of the constituted authorities, a meeting called by the President would have been attended by all the trustees ; whilst that called by the trustees themselves might be secretly convened, and might consist of only those who were of the same opinion or the same way of thinking. In such a meeting, there would not likely be any thing like a discussion favorable to any but previous determination.
It seems that the President refused to call the Trustees together, on the application of the requisite number, in consequence of certain resolutions ode red by Mr. Cardozo, on the 2d May, 1843. It is not my province, as a magistrate, to question the motives of the mover of these resolutions, or to arraign the good faith of the President in obeying them. I do not regard the resolutions as imposing the obligations of a constitutional by-law, nor such as' would repeal former by-laws having the character of constitutional provisions. They were adopted in full assembly, and by the legislative body of the corporators, but that body not being summoned for. constitutional purposes, had at the time no right to assume a jurisdiction beyond the objects for which it was summoned together. In this respect, it was a good meeting for limited purposes. Although the resolutions may not have had the obligation of constitutional authority, they may, nevertheless, be regarded by the President as containing imposing instructions as to his duty. They seem to have been regarded by him as a virtual suspension of his authority to call a meeting of the trustees. The question again recurs, could there be a regular and legal meeting of the trustees without the call of the President? All corporate powers, especially such as are conferred on a select body, must be strictly pursued, and in nothing so much as in the manner of assembling to do business. — Rex vs. Head, 4 Bur. 2515; Ang. and A. 178, 179. To render the acts of such a body *284valid, not only notice must be given, but the authority must be by some one authorized to assemble the body. An election to fill the vacancy of an Alderman, without the summons of the Mayor, is void. — Machell vs. Nevinson, 2 Lord Ray. 1357. In that case the Common Council had met as by accident, and had proceeded to an election. It was held void; because the summons for the purpose had not been duly made by the Mayor. — Ang. and A. 276; Kyd, 432; 11 Bast, 84. These authorities go to shew the strictness of the English Courts, in their judgments upon such cases. In one of the cases on this subject— that in 4 Burrow, 2204 — the corporation consisted of a Mayor, Jurats, and Common Council. The jurats had the power, after they were chosen, to elect one of their number to act as mayor. Now, in a body thus constituted, there could be no meeting without the summons of the mayor.
But it is contended, and contended with great force, that in the case before the Court, the President was not, like the Mayor, an integral part of the corporation. It seems to me quoad the powers vested in him, he had an independent authority. Both constitutions recognise him as an important executive officer, who is required to act, on many important occasions, upon the dictates of his own judgment, without the concurrence of any one else, and in calling together the trustees, no one else had any substantive power but himself. A portion of the trustees might exercise, by their application under the constitution, an advisory power, which, it is pre-supposed, should be yielded to on his part; but it is not absolutely imperative, nor does it exist in such a form as to be capable of enforcement by the exercise of any power under the law. If there had been a particular day named, in the by-laws, for the meeting of the trustees, a meeting by them would have been valid without the summons or presence of the President. No time being prescribed, all meetings must be had by the authority of the executive officer or his legal substitute.
The conclusions to which I have arrived, from general authority as well as the construction of the by-laws, may *285be thus stated. The charter does not give the election of members to the trustees. If they have that power, it is vested in them by the constitution of 1840 ; but the same instrument provides that they shall not meet for that or any other purpose unless convened by the President. Their meeting having been effected without the authority of the President, its proceedings must be held illegal and void. The defendants deri ve their rights of membership from the acts of this body, or the acts of subsequent assemblies that trace their authority to it. The subsequent meetings of the Yehedim cannot sanctify what was already illegal. A derivative right cannot be better than the origin whence it proceeds. Where the base is deficient, the superstructure cannot, mend it.
Let it not be understood, or in anywise inferred, that it is my design to throw any moral blame on the conduct of the four trustees who brought about the election of the defendants. I have every reason to believe that they were engaged in an honest struggle, to carry out plans for the preservation of what they regarded their ancient faith and forms of worship. They have many claims upon the toleration and respect of the dominant party. In matters not really essential, concession would seem to be a becoming course of conduct.
It was said in argument (and it should be here remarked that this case has been argued with uncommon learning and ability,) is it reasonable that a single individual, like the President, shall stop the whole operation of the corporate government, as it should be exercised in contemplation of the constitution 1 Suffice it to say, that I feel bound to be governed by its literal and expressed provi-vions.
The greatest of the ancient republics could be arrested in its legislation, and most important undertakings, by the veto of a single officer. In the midst of peril and excitement, it was the duty of the Tribune to remain cool; and the people felt that there was safety in the fulfilment of this conservative trust. Such a power, in some form, seems necessary in the construction of all well organized corporations. Whether it has been wisely or unwisely ex*286ercised in the case under consideration, it is not my province to determine.
-From the views which have been taken, the motion to set aside the decision below is refused by a majority of this Court.
O’Neaix, Evans and Wabdlaw, JJ. concurred.